OCADFA is working on developing resources to better assist members in the accommodation process, and as part of that we’ve prepared the below primer to familiarize our members on the legal basis of accommodations.
What is the Duty to Accommodate?
Enshrined in the Ontario Human Rights Code (OHRC), the duty to accommodate is the legal duty to reduce or eliminate discrimination by adjusting rules, policies, and practices to enable individuals who are disadvantaged on their basis of membership in an OHRC protected group. Discrimination, for our purposes here, is defined by the Supreme Court of Canada as
“… a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or groups not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.”
It’s important to underscore that intent does not necessarily matter, what we need to consider is the impact. Thus, while a specific OCADU policy or an agreed upon provision of our Memorandum of Agreement may be not be discriminatory in intent, its still possible for it to have a discriminatory impact on an individual member. This is where accommodations come into play, to reduce or eliminate that unwarranted discrimination.
Human rights legislation is considered to have a ‘quasi-constitutional’ status, this means all other statutes and agreements need to be consistent with it. Thus, while the No Discrimination clause (Article 8) of our Memorandum of Agreement identifies prohibited grounds of discrimination, membership any group protected in the OHRC may trigger the duty to accommodate.
Are there different types or forms of accommodations?
While the most common need in workplace settings arise on grounds of disability, which is why OCADU’s accommodation policy is specifically geared towards this type of accommodation, it is important to note that all protected grounds covered in the OHRC may give rise to the duty to accommodate. Other common grounds for workplace accommodations are sex/pregnancy, family status, age, creed, gender identity and gender expression.
While the duty to accommodate is only triggered on OHRC protected grounds, this does not preclude accommodations on other grounds, though these accommodations are less likely to become formalized and recourse to the grievance procedure is unlikely.
If you’re uncertain if you have grounds for an accommodation, please do not hesitate to reach out to us.
What form does the accommodation take?
The form an accommodation takes depends on the specific circumstances that give rise to the need – we therefore need to take an individualized approach to accommodations. The form a medical accommodation on the ground of disability takes, for example, will depend heavily on demonstrable workplace restrictions according to the documentation you are able to provide. (You do not need to disclose the diagnosis, but rather documentation from a medical professional indicating what your limitations/restrictions are).
Are there limits to the duty to accommodate?
There are, and they can be broken down into three areas:
What if there’s a breach of the Duty to Accommodate?
A breach or refusal to provide reasonable accommodation that is needed on code-based grounds results in further discrimination of the employee. The two most common avenues to take in such circumstances are to either pursue a remedy via the grievance procedure, in which OCADFA can represent you, or to file an HRTO complaint. The are benefits and disadvantages with both routes, and we can be of assistance in helping you make that decision.
To whom does the duty belong?
Typically, we speak of the employer’s duty to accommodate, but it is a shared duty and all three parties (the employee, the employer, and the FA) have obligations to fulfill, which are as follows:
If you have any questions about accommodations, feel free to contact our Executive Direct