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Policy and guidelines on disability and the duty to accommodate

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Revised version approved by the Commission: November 23, 2000
(Please note: minor revisions were made in December 2009 to address legislative amendments resulting from the Human Rights Code Amendment Act, 2006, which came into effect on June 30, 2008.)

Available in other accessible formats on request

1. Introduction

Under the Code,[1] everyone has the right to be free from discrimination because of disability or perceived disability in the social areas of employment, services, goods, facilities, housing, contracts and membership in trade and vocational associations. This right means that persons with disabilities[2] have the right to equal treatment, which includes the right to accessible workplaces, public transit, health services, restaurants, shops and housing.

On average, 30 – 50% of human rights claims cite the ground of disability. Most are in the area of employment, with services constituting the second largest area. For this reason, this Policy focuses on the workplace, with specific guidance to support employers, unions and employees in the fulfilment of their duties and rights under the Code.[3]

In 1989, the OHRC published its Guidelines on Assessing Accommodation Requirements for Persons with Disabilities. These Guidelines were introduced after extensive consultations with stakeholders, and created for the first time a standard for the interpretation of “undue hardship.” The Guidelines were cited before tribunals and the courts, and were an important interpretative tool. Since that time, there have been several important legal decisions, notably from the Supreme Court of Canada, with respect to the ground of disability and the duty to accommodate. These decisions have assisted the OHRC in its evolving understanding of equality for persons with disabilities. Significantly, the Supreme Court has noted the need to adapt society so that its structures and attitudes include persons with disabilities. This requires a shift in our approach to the entire area, one that affirms the centrality of human dignity in achieving equality.

In 1999, the OHRC invited stakeholders to provide input on the revisions to the Guidelines. Over 150 stakeholders were approached. They represented a broad spectrum of interests, including consumers and organizations from the disability community, employer associations, educational institutions, law firms, labour, provincial and municipal government agencies, business and trade associations and service providers.

Several themes emerged from these consultations, and have informed these revisions:

  • There is a need to reaffirm the standard of undue hardship that was created in 1989.
  • While undue hardship is a high standard, it is necessary to ensure equality. It is, in this sense, ”reasonable” and accommodation to the point of undue hardship is “reasonable accommodation,.
  • Individual accommodation has grown in significance as a central principle of human rights law.
  • More guidance is needed on the definition of disability, as well as more practical direction on the steps required in the accommodation process.
  • The principle of design by inclusion and barrier removal has to be underscored.
  • More information on the needs of persons with mental disabilities is a priority.
  • Unions and employee associations have a critical role to play in the accommodation process.
  • There is a need to clarify the impact of accommodation on performance standards and on access to jobs other than the “pre-disability” job.
  • The principle of dignity with risk (i.e., the ability of persons with disabilities to assume risk to themselves) has to be balanced with health and safety considerations.

As a result, there are several new features in this Policy and Guidelines, which replaces the 1989 Guidelines. The reader will find references to case law and international human rights obligations, as well as a resource section.

The right to be accommodated and the corresponding duty of the employer and union are now well established in statute and case law. Accommodation is a fundamental and integral part of the right to equal treatment. The duty to accommodate means that the terms and conditions of the workplace, or the functions of a job, may have to be changed. The Code recognizes that an employer may have operating rules, policies and procedures that may be necessary for business reasons, or that there may be certain legal requirements such as health and safety legislation. There may also be collective agreements that set out the terms and conditions governing the workplace.

Accommodation with dignity is part of the broader principle that our society should be structured and designed for inclusiveness. This principle, which is sometimes referred to as integration, emphasizes barrier-free design and equal participation of persons with varying levels of ability. Integration is also much more cost-effective than building parallel service systems, although it is inevitable that there will be times when parallel services are the only option. Inclusive design and integration are also preferable to “modification of rules” or “barrier removal,” terms that, although popular, assume that the status quo (usually designed by able-bodied persons) simply needs an adjustment to render it acceptable. In fact, inclusive design may involve an entirely different approach. It is based on positive steps needed to ensure equal participation for those who have experienced historical disadvantage and exclusion from society’s benefits.[4] The right to equality can be breached by a failure to address needs related to disadvantage.

As the Supreme Court of Canada has observed:

[T]he principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field.[5]

This positive approach is more effective because it is accessible and inclusive from the start. Employers and others who set standards or requirements “owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace [or other] standards.”[6] A proactive approach to disability accommodation is therefore necessary.

Those responsible for accommodation[7] should be aware of the standards for accommodation. The following guiding principles should be kept in mind:

  • The needs of persons with disabilities must be accommodated in the manner that most respects their dignity, to the point of undue hardship.
  • There is no set formula for accommodation – each person has unique needs and it is important to consult with the person involved.
  • Taking responsibility and showing willingness to explore solutions is a key part of treating people respectfully and with dignity.
  • Voluntary compliance may avoid complaints under the Code, as well as save the time and expense needed to defend against them.

[1] R.S.O.1990, c. H.19.
[2] The terms "disability" and "person with a disability" are used throughout this document instead of
"handicap" or "handicapped person.” Although the term "handicap" is used in the Code, many people with
disabilities prefer the term "disability."
[3] During consultations held in 1999 by the OHRC, stakeholders highlighted the particular issues facing educational institutions and persons seeking access to them. Many of the principles set out in this Policy apply to service sectors as well, but the Commission will be undertaking new Guidelines for the educational sector to address these concerns.
[4] In Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28 (18 May 2000), online: Supreme Court of Canada [hereinafter “Granovsky”], the Supreme Court recognized that the primary focus in the disability analysis is on the inappropriate legislative or administrative response (or lack thereof) of the State (at para. 39). The Court states (at para. 33):

Section 15(1) ensures that governments may not, intentionally or through a failure of appropriate accommodation, stigmatize the underlying physical or mental impairment, or attribute functional limitations to the individual that the underlying physical or mental impairment does not entail, or fail to recognize the added burdens which persons with disabilities may encounter in achieving self-fulfillment in a world relentlessly oriented to the able-bodied.
[emphasis added.]

Although in Granovsky the focus was State action, similar principles apply to persons responsible for
accommodation under human rights law.
[5] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 78, online: [hereinafter “Eldridge”].
[6] British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at para. 68 [hereinafter “Meiorin”].
[7] The term “person (or organization or company) responsible for accommodation” includes individuals,
partnerships, corporations, companies, unions, joint ventures and organizations. More than one “person”
may be responsible for accommodation, and where this term is used, it refers to all parties who are
obliged to take part in the accommodation.

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