Consistent with the Supreme Court of Canada's direction in O'Malley, Central Alberta Dairy Pool, and Renaud, the initial burden is upon the employer to reasonably accommodate the employee's mental or physical disability.To prove that its accommodation efforts were serious and conscientious, an employer by law is required to engage in a three step process: First, determine if the employee can perform his or her existing job as it is.This is what the court said: Standards must provide for individual accommodation The employer must take all steps short of undue hardship to eliminate discrimination related to human rights grounds.
The duty to accommodate requires employers to make every reasonable effort, short of undue hardship, to accommodate workers who fall under a ground of discrimination within human rights legislation.
An important Supreme Court decision (“Meiorin”) defined what the duty to accommodate means.
The duty to accommodate recognizes that people have different needs and require different solutions to gain equal access to services, housing and employment.
To accommodate someone means to remove the barriers which prevent people from gaining access to jobs, housing, and the use of goods, services and facilities (e.g. If you are a person who has -protected rights, this means that an employer, service provider or landlord has a positive duty to change the way they provide workspace, services, or housing (e.g.
It requires employers to treat women affected by pregnancy, childbirth, or related medical conditions “the same for all employment-related purposes …
as other persons not so affected but similar in their ability or inability to work.” For many years, courts routinely held that employers were not required to provide transitional or light duty work to pregnant employees as long as they limited their light duty program to employees who suffered on-the-job injuries.
If a policy, procedure, requirement, standard or practice is already in place then these must be revoked or replaced by one that is not discriminatory, unless it is found to be a Bona fide Occupational Requirement (BFOR) .
(Note that this does not apply to discrimination arising from special programs designed to redress historical inequality such as employment equity.) The duty to accommodate is usually thought of in terms of disability, but it relates to a broad range of individual differences among workers.
Among those employees are individuals with disabilities, those who are or recently were pregnant, injured workers, those who have sincerely held religious beliefs, and victims of domestic violence, sexual assault, stalking or harassment.
After all, approximately 50% of retail employees are female, and in some retail lines such as clothing, women make up more than 75% of the workforce.
The footnotes from Professor Lynk's article have been removed from this publication. The Employer's Duty to Accommodate The essence of the duty is simple to state: Employers in Canada are required to make every reasonable effort, short of an undue hardship, to find an accommodation for an employee with a disability.