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.
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.