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Ontario Human Rights Commission issues guidelines on accommodating disability
On March 22, 2001, the Ontario Human Rights Commission released its "Policy and
Guidelines on Disability and the Duty to Accommodate". The document is the first update
of the Commission's approach since 1989. Consequently, it attempts to capture significant
developments in the case law, many of which have been reported in FOCUS. This article
will touch on the key points of the Guidelines, which, while not law, have a major influence
on the conduct of human rights litigation.
BROAD UNDERSTANDING OF DISABILITY
Citing City of Montreal v. Quebec Human Rights Commission (see "Perception, myths and
stereotypes: the Supreme Court of Canada on the nature of disability" on our Publications
page), a
case where the complainants were denied employment because they had medical conditions,
but no functional limitations, the guidelines note that "social handicapping", or society's
response to real or perceived disability, should be the focus of discrimination analysis. This
analysis emphasizes the effects of discrimination, as opposed to the proof that a complainant
suffers from a physical limitation or ailment.
Related to this is the issue of non-evident disabilities, such as chronic fatigue and back pain.
The Guidelines state that the fact that these disabilities are not well understood, leads to
stigmatization of persons suffering from them. This in turn fosters obstacles to integration
of such persons into the work force, rather than developing ways to ensure their full
participation.
ACCOMMODATION: INTEGRATION AND FULL PARTICIPATION
To combat "social handicapping", the document stresses that the workplace should be
organized to promote the integration and full participation of the disabled. To this end,
society is urged to practice "barrier-free design" when developing new structures, policies,
and services. This kind of inclusive design is the approach that best promotes the dignity of
the disabled. Barriers that are already in place should be removed. This refers not only to
physical barriers, but to systemic barriers, such as combinations of policies or guidelines that
result in the exclusion of persons with disabilities.
This approach received its legal articulation in the B.C. Firefighters case (see "Not
reasonably necessary": aerobic fitness test held discriminatory in B.C. woman firefighter
victory" on our Publications page). That case established, in the Guidelines' words, that
"the rule or standard [being challenged as discriminatory] itself must be inclusive
and must accommodate individual differences up to the point of undue hardship
rather than maintaining discriminatory standards supplemented by accommodation
for those who cannot meet them. This ensures that each person is assessed according
to his or her own personal abilities instead of being judged against presumed group
characteristics."
The Guidelines state that the accommodation undertaken must be the "most appropriate"
accommodation, short of undue hardship. "Most appropriate" means accommodation that
most respects the individual's dignity, meets individual needs, best promotes integration and
participation, and ensures confidentiality. If two forms of accommodation are equally
responsive to a person's needs in a dignified manner, those responsible may choose the form
that is least expensive or disruptive to the organization.
ESSENTIAL DUTIES, ALTERNATIVE WORK
Anyone capable of performing the essential duties of the job is entitled to equal treatment
under the Ontario Human Rights Code. The determination of a person's incapability must
be arrived at objectively, and not based on an assumption. If necessary, an individual's non-essential duties should be separated out and re-assigned to others. Accommodation may
require modifying performance standards, where these are not an essential part of the job,
or where doing so will not entail undue hardship.
While the Code itself is silent on this topic, the Guidelines state that accommodation in a
job other than the person's pre-disability job may be appropriate in some cases. The
Guidelines set out a series of factors for determining whether placing the person in a new
position is appropriate. In either the old or the new position, however, the employee must
be able to perform a useful and productive job for the employer.
UNDUE HARDSHIP
Pointing to the provisions of the Code, the Guidelines list three considerations for assessing
undue hardship: cost, outside sources of funding, if any, and health and safety requirements,
if any.
No other factors, such as conflict with a collective agreement, can properly be considered
under Ontario law. Claims of undue hardship must be supported with objective evidence.
Where a claim of undue hardship is based on cost, the Guidelines state that the cost must be
quantifiable, shown to be related to the accommodation, and so substantial that it would
alter the essential nature of the enterprise, or so significant that it would affect the
enterprise's viability.
The Guidelines go on to state that enterprises must consider various strategies to minimize
undue hardship. For example, steps should be taken to recover the costs of accommodation,
and to distribute them widely within the organization. Taking out loans, tax deductions and
increasing efficiency are all mentioned as means of lessening the financial burdens of
accommodation.
In Our View
The Guidelines signal to employers both that claims of undue hardship will be closely
scrutinized and that the duty to accommodate requires a fundamental change in the terms
and conditions of the workplace. Employers should be prepared for more persistent
demands for inclusive and barrier-free workplaces and standards. In this regard, the
Guidelines conclude by suggesting that employers conduct "accessibility reviews" for the
purpose of determining how to improve the organization's accessibility to persons with
disabilities.
For further information, please contact Lynn Harnden at (613) 563-7660, Extension 226.
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