Duty to Accommodate

The duty to accommodate refers to the obligation of an employer, service provider, or union to take steps to eliminate disadvantage to employees, prospective employees or clients resulting from a rule, practice, or physical barrier that has or may have an adverse impact on individuals or groups protected under the Ontario Human Rights Code (the "Code"), or identified as a designated group under the Employment Equity Act (women, visible minorities, Aboriginal peoples or persons with disabilities). The duty to accommodate recognizes that true equality means respect for people's different needs. Needs that must be accommodated result from factors related to disability, sex, age, family status, ethnic or national origin, and religious belief. Accommodation helps ensure that the opportunities of all individuals are not limited for discriminatory reasons. The Supreme Court of Canada has stated that employers and others who set standards must build conceptions of equality into the workplace. However, the courts have also recognized that the duty to accommodate is not open-ended. It may not be required if it can be shown that providing accommodation would cause "undue hardship" to the organization.

Western is proud of the diversity of its workforce, recognizes the value and dignity of each individual and is committed to ensuring that all employees are able to effectively and efficiently use their skills and experience to contribute to the organization's performance, production and service delivery. Pursuant to its Employment Equity Policy (Manual of Administrative Policies and Procedures - see Section 3.2), Western has committed itself to ensuring that each individual will have genuine, open and unhindered access to employment opportunities, free from systemic or other barriers.

Definitions:

"Disability"

The term disability "covers a broad range and degree and conditions". The Ontario Human Rights Commission provides a good definition and interpretation of disability in the Human Rights Code.

"Undue hardship"

The employer bears the burden of proving that the accommodation of an employee would result in undue hardship. Under the Human Rights Code only three conditions will be assessed in deciding whether the employer has met the burden, namely: 1) cost; 2) outside sources of funding if needed; and 3) health and safety requirements, if needed.

"Accommodation"

Refers to the design and adaptation of the work environment to the needs of as many types of persons as possible and, according to the Supreme Court of Canada, refers to what is required in the circumstances of each case to avoid discrimination.

"Constructive discrimination"

An individual's rights are infringed where a requirement or qualification exists that, while not discrimination under the Code on its own, results in the exclusion or preference of a group of individuals who are identified by a prohibited ground under the Code. However, it is not constructive discrimination if the requirement or qualification is reasonable and bona fide in the circumstances and cannot be accommodated short of undue hardship. For example, a requirement that all employees work on Friday evenings appears neutral on its face, but could result in the exclusion from that workplace of all individuals whose religion requires them to observe Sabbath from sundown on Friday to sundown on Saturday.

Western recognizes the following general principles in its duty to accommodate:

  • Respect for the dignity of each individual in accommodating his or her needs
  • Individual consultation, as each person has unique needs which must be understood to be accommodated
  • Integration and participation for persons with disabilities
  • Design by inclusion, meaning up front barrier-free design wherever possible to fully integrate persons with disabilities
  • Removal of other barriers beyond the physical ones, including attitudinal and systemic

Western is committed to ensuring that the following activities are reviewed to remove any discriminatory effect:

  • all employment-related policies including recruitment, selection, training, promotion, retention and alternative work;
  • purchase and management of information technology systems;
  • purchase and management of communications systems;
  • development and management of information services; and
  • purchase of internal fittings (chairs, desks, lights, carpets, etc.).

The University will take all reasonable steps to ensure accommodation specific to an individual's needs is provided in a timely and effective way. All partners are accountable for return to work programs lead by Employee Well-being with support from Human Resource Consultants.

Western is responsible for advising employees about their right to accommodation. Upon request, the University will assist the employee in identifying the most suitable means of accommodation. In consultation with the individual employee, Western will accept and act on a request for accommodation made by a third party (family member, caregiver, trade union or bargaining agent, advocate or other representative). Such a request will not be accepted without the consent of the employee. Note that overall responsibility and cost for implementing this guideline rests with the Dean or Budget Unit Head. Any concerns regarding the implementation should be brought forward to the respective Vice-President. The Human Rights Office is an available resource for employees requiring accommodation in implementing or following this guideline. The Human Rights Office is responsible for facilitating the implementation of Western's Employment Equity Policy, as well as the various policies regarding discrimination and harassment on campus.

If an employee requires workplace accommodation for medical reasons Employee Well-being offers the Transitional Accommodation Program.

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