Introduction

The duty to accommodate stands out as a key principle in Canadian law that supports workplace fairness and inclusivity. This duty requires employers to make reasonable adjustments in the workplace for employees facing barriers due to disabilities, religious beliefs, family status, or other protected grounds. In recent years, family status has emerged as a pressing issue, with increasing recognition of the need for employers to consider family-related obligations. While the duty to accommodate is significant, employees’ rights are not unfettered; accommodations must be reasonable and balanced against the needs of the workplace and employees must participate reasonably in the accommodation process.

Embracing the duty to accommodate is not only about legal compliance, but also is a vital part of broader diversity and inclusion measures that foster a workplace culture where all employees can thrive. When organizations actively address individual needs, they create a more inclusive environment, boost morale, and enhance productivity, ultimately benefiting everyone involved.

The duty to accommodate is grounded in applicable human rights legislation, providing a legal framework for involved parties. All stakeholders involved (including employees, unions where applicable, and employers) are required to participate in the process with due diligence and good faith. This collaborative approach is essential for effectively addressing accommodation needs and ensuring compliance with legal obligations. This article will explore the significance of accommodation in the workplace, outline the legal responsibilities involved, and provide best practices to foster a more inclusive and productive environment for all.

Legal Framework

Canadian employers have a duty to accommodate employees based on protected grounds (such as race, gender, disability, and religion) under applicable human rights legislation. Applicable human rights legislation is governed by provincial law for provincially regulated employers and federal law for federally regulated employers. Employers are typically required to accommodate employees based on protected grounds to the point of “undue hardship.” For example, the Ontario Human Rights Code outlines these protected grounds and mandates that employers take reasonable steps to accommodate individuals up to the point of “undue hardship.” [1] This standard requires an assessment of the potential impact of accommodation on the organization, considering factors such as financial cost, health and safety, and the overall operation of the business.

The duty to accommodate necessitates active participation from all parties involved, including employers, employees, and unions, where applicable. Upon receiving an accommodation request, employers are required to engage in an interactive process to explore viable options while making a genuine effort to address the individual’s needs. Employees also bear certain responsibilities, such as clearly communicating their needs and cooperating throughout the accommodation process, which fosters collaborative efforts toward an effective solution. A recent legal decision outlined below emphasizes the obligations of employees in this context, indicating that a human rights claim may be unsuccessful if the employee fails to actively participate in the accommodation process. Furthermore, unions, when applicable, have a legal obligation to engage in the accommodation process and to fairly represent their affected members.

Human rights legislation often interacts with other legislative frameworks, such as employment standards legislation. In Ontario, for instance, the Employment Standards Act, 2000 sets out minimum employment rights, while the Ontario Human Rights Code provides a broader framework for protection against discrimination and the duty to accommodate. Employers must navigate these overlapping obligations, ensuring compliance with all applicable legislation, and typically, if multiple statutes address the same legal issue, the strongest protections will prevail.

Protected Grounds

With respect to who is entitled to accommodation, individuals are protected based on certain grounds that are covered by applicable human rights legislation, including grounds such as:[2]

• Race
• Ancestry
• Place of Origin
• Colour
• Ethnic Origin
• Citizenship
• Creed
• Sex
• Sexual Orientation
• Gender Identity
• Gender Expression
• Age
• Record of offences (in certain contexts)
• Marital Status
• Family Status
• Disability

Beyond the specifically cited grounds, there are also general protections for “analogous grounds.” “Analogous grounds” refer to categories not explicitly listed as protected grounds in human rights legislation but are treated similarly due to their potential for discrimination. This concept acknowledges that individuals may face discrimination based on characteristics not explicitly mentioned in applicable legislation. Determining whether a ground is analogous often involves a case-by-case analysis, considering the impact of the discrimination and the specific context.

Below are some examples of individuals who might be entitled to human rights-based employment accommodations:

• Employees with Disabilities: Individuals requiring adjustments for physical or mental disabilities, such as modified workstations or flexible schedules.
• Pregnant Employees: Employees needing accommodations related to pregnancy, such as modified duties or time off for medical appointments.
• Employees with Religious Practices: Individuals needing time off or schedule adjustments to observe religious holidays or practices, such as prayer breaks.
• Caregivers: Employees who have family caregiving responsibilities, requiring flexible hours or leave to care for children or elderly relatives.
• Transgender or Gender Non-Conforming Employees: Individuals who may require changes to dress codes, restroom access, or support during gender transition.
• Older Workers: Employees who might need modifications to their work environment or duties due to age-related health issues.

Types of Accommodation

Below are examples of various workplace accommodations that may be provided to comply with applicable human rights legislation.

A. Physical Accommodations

• Parking Spaces: Designated accessible parking spots close to the entrance.
• Wheelchair Access: Ramps, wide doorways, accessible washrooms.
• Accessible Workstations: Adjustable desks and ergonomic chairs to meet diverse needs.
• Accessible Office Equipment: Equipment (like kitchen appliances and/or printers) at an accessible height for wheelchair use.
• Lighting Adjustments: Adjustable lighting to accommodate vision needs.
• Quiet Spaces: Designated areas for employees who require a low-distraction environment.
• Break Rooms: Accessible and inclusive break areas with appropriate seating, prayer rooms and spaces appropriate for same.
• Emergency Evacuation Plans: Customized plans for individuals with mobility challenges.
• Signage: Clear, accessible signage in large print and braille.
• Maintenance of Equipment: Regular checks to ensure all accessibility features are functional.

B. Policy Modifications

• Flexible Work Hours: Allowing employees to adjust their schedules to fit personal needs or health requirements.
• Remote Work Options: Enabling employees to perform their duties from home or other locations which can assist with areas such as family status and medical issues.
• Modified Dress Codes: Accommodating employees’ cultural or religious practices through adjustments to dress policies.
• Adjusted Performance Metrics: Evaluating employees based on their contributions rather than arbitrary benchmarks, ensuring fair assessments.
• Support for Family Responsibilities: Implementing policies that allow for parental leave, caregiving support, or flexible arrangements for employees with family obligations.

C. Technological Supports (e.g., assistive technologies)

• Ergonomic Workstations: Adjustable furniture for comfort and accessibility.
• Adaptive Keyboards and Mice: Designed for limited dexterity.
• Screen Magnification Software: Enlarges on-screen content for low-vision users.
• Screen Readers: Read text aloud for visually impaired users.
• Accessible Document Formats: Tools for creating Braille and large print documents.
• Speech-to-Text Software: Converts speech into written text.
• Hearing Aids: Amplify sound for those with hearing loss.
• Video Relay Services: Facilitate communication via sign language interpreters.
• Text-to-Speech Software: Converts written text to spoken words.
• Communication Devices: Tools for individuals with speech impairments.
• Environmental Control Systems: Voice or switch-operated control of workspace.
• Assistive Listening Devices: Enhance sound in group settings.
• Remote Work Technologies: Facilitate flexible work arrangements.
• AI-Powered Tools: Personalized assistance for various needs.

Recent Case Law

Recent case law underscores the obligation of employers to fulfill their duty to accommodate to the point of undue hardship. It also emphasizes that employees have a vital role in this process and may not succeed in their human rights claims if they do not fully engage in the accommodation dialogue or if the accommodation request results in undue hardship. The following recent decisions illustrate these key principles:

Employee Failed to Participate in Accommodation Process – Aguele v. Family Options Inc., 2024 HRTO 991(“Aguele”):[3] A recent decision from the Human Rights Tribunal of Ontario (“HRTO”) provides important guidance for employers responding to requests for schedule changes from these employees. The HRTO found that the employee, while initially proactive in seeking accommodation for childcare needs, ultimately failed to fully engage in the accommodation process. The HRTO noted that the employee did not provide sufficient information or explore alternative solutions with the employer, which limited the employer’s ability to accommodate the request effectively. The HRTO concluded that the lack of collaborative engagement on the employee’s part contributed to the unsuccessful outcome of the accommodation request, reinforcing that both employers and employees must work together to achieve effective accommodations. The decision emphasizes that employees have a responsibility to actively participate in the accommodation dialogue, including providing necessary details about their circumstances and being open to potential compromises.

Employer Failed to Engage in Accommodation Process – Silliker v. Suncor Energy, 2024 AHRC 91 (“Silliker”):[4] In Silliker, the Alberta Human Rights Tribunal ruled in favour of an employee who claimed her employer failed to adequately accommodate her mental health disability upon her return to work. After taking a leave of absence in 2018, she was cleared to return in 2019, with her doctor providing a specific return-to-work plan. However, Suncor rejected this plan and proposed alternative arrangements that did not meet her needs. When the employee declined Suncor’s proposal, her employment was terminated on the grounds that no suitable accommodations were available. The Tribunal found that Suncor did not show a genuine willingness to engage in the accommodation process or explore options that would enable the employee to return safely. This case highlights the obligation of employers to actively participate in the accommodation process, take employees’ reasonable proposals seriously, and ensure that accommodations align with the needs of the employee.

Accommodation Request Amounted to Undue Hardship – Disbrow v. University of Victoria Properties Investments Inc., 2024 BCHRT 235 (“Disbrow“):[5] In Disbrow, the employee worked as a security attendant with the employer for 8 years. After knee surgery, the employee developed arthritis which limited her ability to climb stairs. This limitation impacted her ability to perform patrol duties associated with her job, which required frequent stair use. The employee proposed various accommodations, including accessing elevators during her shifts, reducing patrol duties, and being transferred to alternative custodial positions within the organization. The employer claimed it could not accommodate the employee without incurring undue hardship, stating that allowing elevator use could pose safety risks (due to frequent breakdowns), reducing her patrol duties would not meet operational needs, and that the only available position was a custodial job which the employee was not interested in. The Tribunal found that the employer made reasonable efforts to accommodate the employee and ruled that the accommodations she sought were either impractical or would result in undue hardship. This case demonstrates there are limits to the duty to accommodate and undue hardship can be demonstrated by the employer through evidence.

Employer Failed to Accommodate Prayer Room – Bueno v. Energy Call Solutions, 2024 HRTO 619:[6] In this case, the employee informed the employer during her hiring process that she was a devout Muslim and needed to pray periodically throughout the day. After working for the employer for about a year, the employee requested a change to her schedule during Ramadan to accommodate her breaking of the fast to attend a mosque. The employer denied this request and advised that she would have to find someone to trade shifts with. The employee later requested a quiet space for prayer, which the employer denied due to space constraints. When the employee attempted to use the lunchroom for prayer, the employer disrupted her and tried to stop her from using the space. The employer argued that providing adequate accommodation for prayer was not possible without creating hardship, citing practical difficulties and employee complaints about her use of the lunchroom. The Tribunal found the employer had failed to accommodate the employee by denying her request to switch shifts during Ramadan, interrupting her during prayer, and failing to provide adequate space in the workplace for prayer. The Tribunal highlighted that creed and religious-based accommodations may be offered by modifying break policies, using lunch or break times for prayer, providing alternative arrival and departure times, and/or offering a private prayer space. It also noted it was the employer’s obligation to educate staff about the employee’s legal right to pray and to implement policies in the workplace recognizing such right.

Best Practices for Employers

Failure to fulfill the duty to accommodate can lead to significant legal consequences for employers, including discrimination claims under applicable human rights legislation. Employers are required to engage in an interactive process with employees to identify and implement reasonable accommodations, ensuring these do not impose undue hardship on their operations. This process involves assessing individual needs and exploring various options that enable employees to perform their jobs effectively. Non-compliance can result in investigations, costly litigation, and reputational damage, highlighting the critical importance of proactive measures to foster an inclusive workplace and ensure legal compliance. Furthermore, employers who prioritize accommodation not only mitigate legal risks but also enhance employee morale and productivity, contributing to a more positive organizational culture.

To mitigate risk, employers should establish clear policies on accommodation requests, ensuring compliance with human rights laws. Regular training and open dialogue help prevent issues and promote a diverse, inclusive work environment where all employees can thrive.

Below is a list of best practices for employers to focus on to maintain legal compliance regarding the duty to accommodate:

1. Policies: Develop and communicate policies outlining the accommodation process and have policies regularly updated by legal counsel.
2. Training: Provide regular training for management and staff on human rights and the duty to accommodate.
3. Dialogue: Maintain open communication with employees to discuss their accommodation needs.
4. Individual Assessments: Evaluate each accommodation request on a case-by-case basis.
5. Documentation: Keep detailed records of accommodation requests and decisions.
6. Explore Options: Consider various accommodations, such as modified schedules or assistive technology.
7. Monitor Arrangements: Regularly review accommodations to ensure they remain effective.
8. Supportive Culture: Foster a workplace culture that values diversity and inclusion.
9. Designate Contacts: Assign a specific individual or team to manage accommodation requests.
10. Stay Informed: Keep updated on changes in legislation and best practices for compliance.

Conclusion

The duty to accommodate in Canadian human rights law is designed to ensure equitable treatment in the workplace. This duty involves the equal and fair participation of multiple parties, including employees and, in unionized environments, their representatives. Employees must reasonably participate in this process and cannot simply demand any accommodations they desire; they have a responsibility to communicate their needs clearly and cooperate in the accommodation process. When a union is involved, it must actively and fairly participate in the accommodation process.

Employers are legally obligated to provide reasonable accommodations based on protected grounds, which requires engaging in open dialogue with employees and carefully assessing individual needs while balancing the operational requirements of the organization. Understanding and fulfilling this duty not only helps employers meet their legal obligations but also fosters a more inclusive and supportive work environment. By implementing best practices—such as clear policies, regular training, and ongoing communication—employers can effectively mitigate legal risks while enhancing employee morale and productivity. Ultimately, prioritizing accommodation demonstrates a commitment to fairness and respect for all employees, which is essential for fostering a productive and inclusive workplace.

About the Authors

Deborah Hudson is one of the founding partners of Hudson Sinclair LLP, where she represents both employers and employees in all aspects of labour and employment law. She was called to the Ontario Bar in 2008, and she has practiced exclusively in the areas of labour and employment for her entire career. Deborah regularly advises both employers and employees in relation to matters occurring at all stages of the employment relationship (including areas such as contracts, accommodations, human rights matters and termination). Deborah also conducts workplace investigations as an external, independent investigator relating to various workplace circumstances and allegations including harassment/bullying, human rights matters, privacy breaches and fraud.

Deborah is a facilitator with two Queen’s IRC programs: Building and Leading Teams and Fact-Finding and Investigations.

Sarah Maude is a labour and employment associate with Hudson Sinclair LLP. Sarah provides both employers and employees with advice and representation in the public and private sectors on a wide range of labour, employment and human rights issues. Sarah is a trusted advocate and has represented her clients before the courts, human rights tribunals, and labour relations boards. She regularly assists clients with human relations issues and workforce management at all stages of the employment lifecycle.

Reference List

Human Rights Code, RSO 1990, c. H.19, s. 17(2).

Aguele v. Family Options Inc., 2024 HRTO 991.

Silliker v. Suncor Energy, 2024 AHRC 91.

Disbrow v. University of Victoria Properties Investments Inc., 2024 BCHRT 235.

Bueno v. Energy Call Solutions, 2024 HRTO 619.

Footnotes

[1] Human Rights Code, RSO 1990, c. H.19, s. 17(2).

[2] This list of protected grounds is taken from Ontario’s Human Rights Code. The exact list of protected grounds varies in each jurisdiction.  For example, not all provinces list “gender expression” as a protected ground although this arguably would be an analogous ground if not explicitly listed.

[3] Aguele v. Family Options Inc., 2024 HRTO 991.

[4] Silliker v. Suncor Energy, 2024 AHRC 91.

[5] Disbrow v. University of Victoria Properties Investments Inc., 2024 BCHRT 235.

[6] Bueno v. Energy Call Solutions, 2024 HRTO 619.

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