What is the duty to accommodate?

Sometimes people need different treatment in order to have an equal opportunity to participate in society. The obligation of employers, service providers, and landlords to provide reasonable accommodations for these needs is called the Duty to Accommodate.

The central objective of the Yukon Human Rights Act is to further the public policy that every individual is free and equal in dignity and rights. Ensuring equal rights for individuals with different protected personal characteristics may require special provisions and / or accommodations.

A duty to provide for the special needs of others in the areas of employment, housing situations and services is included in Yukon’s Human Rights Act. The responsibility to make ‘reasonable provisions’ for special needs is outlined in section 8 of the Act. While the Act refers to special needs arising from physical disability, human rights cases in Canada have applied this duty to all prohibited grounds of discrimination.

The duty to provide for special needs, also known as the duty to accommodate, depends on facts and circumstances of each individual case or situation. The goal of accommodation is to give everyone the opportunity to participate and contribute at work and in society. Examples of common accommodations include:

  • In the area of employment, flexible work schedules which can accommodate child care needs (family status) or faith-based practices (religion)
  • In the area of housing, installing a ramp to accommodate a tenant in a wheelchair (disability)
  • In the area of services, allowing a student with a learning disability to bring a note taker into class and/or to tape record lectures.

The process of accommodation

The process of accommodation requires participation and cooperation of both parties. The individual who needs accommodation should explain their specific needs based on one or more protected grounds and provide enough information or documentation to support their request(s). In the case of a disability for example, the individual requiring accommodation does not have to disclose a diagnosis but may be required to provide documentation about their needs from a medical professional. The individual requiring accommodation should cooperate with those in charge of accommodating them and allow reasonable time for the process.

Those providing accommodation should respect the dignity and privacy of the person asking for special provisions. All reasonable alternatives and solutions should be explored and considered. The accommodation request and actions taken should be recorded, evaluated, and timely.

Limits on the duty to accommodate

The Act notes there are limits on the duty to accommodate. There are a number of different reasons why not all situations can be accommodated. One factor is the size of the employer. When the employer or service provider is large, there is more capacity and flexibility to make accommodations than when the employer, landlord, or service provider is smaller.

The Act states the duty to accommodate does not exist if making the special provisions would result in ‘undue hardship’ for the employer, landlord, or service provider. Whether or not an accommodation causes undue hardship is primarily determined by, but not limited to, reference to five factors:

  • safety;
  • disruption to the public;
  • effect on contractual obligations;
  • financial cost; and
  • business efficiency.

In considering a particular accommodation, an employer, service provider, or landlord determines whether and how the proposed accommodation may:

  • pose a threat to the safety of the individual being accommodated or others; and/or
  • disrupt other services to the public; and/or
  • is affordable; and/or
  • impacts contractual obligations; and/or
  • impacts operational efficiency.

Section 10 of the Act refers to specific circumstances when employers, business owners and service providers have “reasonable cause” to not accommodate or provide for special needs. Occupational requirements can be a reasonable cause for discrimination. For example, needing a school bus driver to pass a vision test is a reasonable ‘occupational requirement’ for safe operation of a vehicle, even though the requirement can also be seen as discriminatory on the grounds of disability. Hiring only female locker room attendants at a women’s fitness club is not discriminatory to males, rather it is a reasonable job requirement to ensure safety and efficiency in that workplace.