Discrimination in human rights law and the duty to accommodate

The law involving the duty to accommodate is complex and constantly evolving. Because of this, it’s helpful for employees and employers to understand the fundamental legal principles upon which the law is based. It is equally important to obtain timely legal advice from a human rights lawyer about how these legal principles may apply to your particular circumstances.

An employer is not required to treat all employees the same or equally, provided that the differential treatment is not based on one of the prohibited grounds of discrimination in human rights legislation.

If unlawful discrimination is proven, the duty to accommodate may require the employer to modify the application of the workplace rule or standard to avoid the discriminatory effect on the employee, or to modify the employee’s duties, or transfer the employee to an alternative position to avoid the discriminatory effect.

Employee bears the onus to prove “prima facie” discrimination

An employee looking for accommodation at work bears the initial onus to show discrimination on one of the grounds of discrimination prohibited by human rights legislation.  In other words, it’s up to the employee to show that, on the face of it, the employer has discriminated against them.

Proving that a workplace practice or policy is discriminatory has three parts. The employee must prove that  1) they possess a characteristic that is protected under the relevant human rights legislation; 2) an adverse impact as a result of the employer’s practice or policy; and 3) a protected characteristic was a factor in the adverse effect (it need not be the primary factor). [1]

In the absence of proof of unlawful discrimination, the duty to accommodate does not arise.[2]

Discrimination must be on the basis of one of the prohibited or analogous grounds

The duty to accommodate arises most often in the context of discrimination on the basis of a physical or mental disability. However, the duty to accommodate can also arise in other contexts of prohibited discrimination, including the following:  age, religion or bona fide religious beliefs, sex, sexual orientation, gender identity or expression, family status or marital status, race, colour, ancestry, place of origin, political belief, among other anomalous grounds. [3]

The distinction between direct discrimination and adverse effect discrimination

Discrimination may be “direct discrimination,” which is when the discrimination is plain or obvious. Discrimination may also involve a rule that appears to be neutral, but has an adverse discriminatory effect on the individual employee. This is called “adverse effect discrimination.”

What is necessary to prove a physical or mental disability?

An employee seeking to prove discrimination on the basis of a physical or mental disability must a) provide medical evidence of a disability and whether the disability is temporary or permanent in nature; and b) disclose  information outlining the employee’s restrictions or limitations that prevent the employee from performing their normal duties and responsibilities (the “Required Information”).

An employee is not required to disclose their diagnosis, a psychiatric diagnosis, treatment plan, medication regime, etc. Often it’s enough for the employee to provide the Required Information from their physician or another healthcare provider.

The employer does not have an automatic right to require the employee to be examined by a physician or psychiatrist chosen by the employer, nor does the employer have the right to require the employee to attend a so-called “Independent Medical, Psychiatric or Psychological Examination (“IME” or “IPE”).[4]

In some circumstances where there is some reason for the employer to suspect that the employee suffers from a disability, the employer has a duty to inquire whether the employee suffers from a disability.[5]

Onus shifts to Employer to show undue hardship or a “BFOR” or “BCOQ”

Once the employee shows either direct or adverse effect discrimination and discloses the Required Information, the onus shifts to the employer to accommodate the employee’s disability up to undue hardship or to prove that the rule or standard is a bona fide occupational requirement (“BFOR”) or bona fide occupational qualification (“BFOQ).

To establish a BFOR, the Employer must prove, on a balance of probabilities, that: a) the standard was adopted for a purpose rationally connected to the performance of the job; b) that the particular standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and c) that the standard is reasonably necessary to accomplish that legitimate work related purpose.[6]

Responsibility to search for an appropriate accommodation is shared

The search for an appropriate accommodation is a responsibility shared between the employer, the employee and the union (if there is one). The primary obligation is on the employer to search for an appropriate accommodation; more than a negligible effort is required. The employer is required to accommodate the employee’s disability up to the point of undue hardship. Accordingly, the employer is required to endure some hardship; it is only “undue hardship” that absolves the employer of its duty to accommodate.[7]

However, the employee must reasonably assist and cooperate in the search for an appropriate accommodation;[8] the failure or refusal of the employee to do so may absolve the employer of its duty to accommodate. Furthermore, the employee is not entitled to a “perfect” accommodation, only a reasonable or adequate accommodation.[9] As a result, the employee may be accommodated in a position with less responsibility and less pay.

Initially, the search for accommodation starts with reviewing whether the employee’s duties and responsibilities can be modified or whether duties between employees can be shared and bundled to accommodate the employee’s disability. If not, the search expands to considering other positions within the work unit, section, or department.  If the employee’s disability still cannot be accommodated, the search expands to include other aspects of the employer’s operations. However, the employer is not required to create a position that would accommodate the employee’s disability—there are reasonable limits to what the employer is required to do.

Some of the factors that may be considered when assessing undue hardship include the following:

  • Financial cost;
  • Disruption of a collective agreement;
  • Where safety is at issue, both the magnitude of the risk and the identity of those who must bear it;
  • Problems of morale of other employees;
  • Interchangeability of workforce and facilities;
  • The size of the employer’s operations may influence the assessment of whether a financial cost is undue or the ease with which the workforce and facilities can be adapted to the circumstances; and
  • Other relevant factors.[10]

The question of whether the employer has met the duty to accommodate up to the point of undue hardship is a question of fact in each particular case.[11]

Because discrimination and the duty to accommodate are such complex legal issues, you should consult a lawyer with experience in human rights, employment, and labour law. Our lawyers have experience in each of these necessary fields of law, and we offer all new clients a free half-hour legal consultation.

You can read more about Human Rights here.

[1] British Columbia (Public Service Employee Relations Commission) v BCGEU., [1999] 3 SCR 3 (SCC) [Meiorin], and Moore v British Columbia (Ministry of Education), 2012 SCC 61, [2012] 3 SCR 360 (SCC) [Moore].

[2] Kemess Mines Ltd. v International Union of Operating Engineers, Local 115, 2006 BCCA 58, [2006] BCJ No. 263 (BCCA), at ¶28[ Kemess]; United Steelworkers of America, Local 7884 v Fording Coal Ltd., 1999 BCCA 534, [1999] BCJ No. 2109, at ¶80.

[3]  For example, see the BC Human Rights Code, RSBC 1996, c 210, Section 13; and the Canadian Human Rights Act, RSC 1985, c H-6, Section 3(1).

[4] Attorney General (Canada) v Grover, 2007 FC 28, at ¶66, aff’d 2008 FCA 97.

[5]  Willems-Wilson v Allbright Drycleaners, [1997] BCHRTD No 26 (Q.L.); Martin v Carter Chevrolet Oldsmobile, 2001 BCHRT 37 (CanLII); and Sylvester v BC Society of Male Survivors of Sexual Abuse, 2002 BCHRT 14 (CanLII).

[6] Meiorin, supra, at ¶54.

[7] Central Okanogan School District No. 23 v Renaud, [1992] 2 SCR 970, [1992] SCJ No. 75 (“Renaud”), at ¶19.

[8] Renaud, supra, at ¶43.

[9] Syndicat des employés de l’Hôpital général de Montréal c. Sexton, 2007 SCC 4 (SCC), at ¶22.

[10] Central Alberta Dairy Pool (1990), 13 NR 161, [1990] 2 SCR 489, at 521 (SCC).

[11] Kemess, supra, at ¶37.

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