The Code provides the right to be free from discrimination, and there is a general corresponding duty to protect the right: the ”duty to accommodate.” The duty arises when a person's religious beliefs conflict with a requirement, qualification or practice. The Code imposes a duty to accommodate based on the needs of the group of which the person making the request is a member. Accommodation may modify a rule or make an exception to all or part of it for the person requesting accommodation.
Subsection 11(2) of the Code imposes the duty to accommodate in cases of constructive discrimination:
11(2). The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
1. Rights and duties
Both the people responsible for providing the accommodation and the person requesting it have rights and responsibilities during accommodation. We list some of these below by way of example:
Person requesting: Take the initiative to request accommodation
Person responsible: Respect the dignity of the person seeking accommodation
Person requesting: Explain why accommodation is required
Person responsible: Assess the need for accommodation based on the needs of the
group of which the person is a member[20]
Person requesting: Provide notice of request in writing, and allow a reasonable time for reply
Person responsible: Reply to the request within a reasonable time
Person requesting: Explain what measures of accommodation are required
Person responsible: Grant requests related to the observance of religious practices
Person requesting: Deal in good faith
Person responsible: Deal in good faith
Person requesting: Be flexible and realistic
Person responsible: Consider alternatives
Person requesting: The individual may request details of the cost of accommodation if undue hardship may be a factor
Person responsible: If accommodation is not possible because of undue hardship, explain this clearly to the person concerned and be prepared to demonstrate why this is so
Sometimes, it may not be possible completely to resolve the conflict without causing undue hardship to the person responsible for providing the accommodation. A measure of accommodation may be acceptable if meets the needs of the person, to the greatest extent possible, short of undue hardship,
and if it respects the dignity of the person requiring the accommodation.
2. Unions and the duty to accommodate
In the case of discrimination in the workplace, both management and the union have a duty to accommodate. In Central Okanagan School District No. 23 v. Renaud[21] the Court noted that although the principle of equal liability applies, the employer has charge of the workplace and will be in a better position to formulate measures of accommodation. The employer, therefore, can be expected to initiate the process of taking measures to accommodate an employee. Nevertheless, the Court also noted that they will not absolve a union of its duty if it fails to put forward alternative measures that are available. In short, when a union is a co-discriminator with an employer it shares the obligation to remove or alleviate the source of the discriminatory effect.[22]
Example: Mr. Renaud, a school custodian, complained that the school board and the union had failed to agree on how to modify Mr. Renaud's shift hours. As a Seventh Day Adventist, he was unable to work Friday afternoons. It was decided that the union, together with the employer, had a duty to accommodate Mr. Renaud, short of undue hardship. Mr. Justice Sopinka wrote that the union may be liable in two situations:
...first, [the union] may cause or contribute to the discrimination by participating in the formulation of the work rule that has a discriminatory effect on the complainant. This will generally be the case if the rule is a provision in the collective agreement;
second, a union may be liable if it impedes the reasonable efforts of an employer to accommodate.[23]
In Gohm v. Domtar[24] the employer agreed to accommodate Mrs. Gohm by rescheduling her to work Sunday instead of Saturday, if she would not receive premium pay as provided by the collective agreement. The employer's attempt was blocked by the union. In finding that the union had discriminated against the complainant, the Ontario Divisional Court set out the concept of "equal partnership":
Discrimination in the workplace is everybody's business. There can be no hierarchy of responsibility...companies, unions and persons are all in a primary and equal position in a single line of defence against all types of discrimination. To conclude otherwise would fail to afford to the Human Rights Code the broad purposive intent that is mandated.
Any interpretation short of this would ...be inconsistent with the philosophy and policy enunciated by the Supreme Court of Canada in O'Malley v. Simpson-Sears.[25]
[20] S. 11 of the Code. Individuals may seek accommodation for religious practices or observances that do not conform to established dogma, or they may seek to observe a practice that is not shared by all members of the creed. Dress codes, dietary laws, etc. are good examples of religious practices that are sincerely observed but may not be followed by all practitioners of a creed.
[21] Central Okanagan School District No. 23 v. Renaud (1992), 16 C.H.R.R. D/425, Supreme Court of Canada. The British Columbia Human Rights Act which was in force at the time did not mention the duty to accommodate explicitly. The principle reached by the Supreme Court of Canada in Renaud, namely, that the union as well as the employer has a duty to accommodate short of undue hardship, applies a fortiori to the Ontario Human Rights Code which explicitly imposes a duty to accommodate, short of undue hardship.
[22] Ibid. at D/438.
[23] Supra, note 21 at D/436 - D/437.
[24] (1982), 89 D.L.R. (4th) 305 (Ont. Div. Ct.).
[25] Ibid. at 312.