...they are entitled to have their needs accommodated...

...without being prevented from doing so by discriminatory practices based on

• race,
• national or ethnic origin,
• colour,
• religion,
• age,
• sex,
• sexual orientation,
• marital status,
• family status,
• disability or
• conviction for an offence for which a pardon has been granted.

THE CANADIAN HUMAN RIGHTS ACT (CHRA)

Our purpose here is to examine the impact of the CHRA on Human Resource managers. Let's begin with an examination of the purpose of the legislation in question. What follows is an abbreviated excerpt from the Act.

The purpose of the Canadian Human Rights Act is to give effect to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have. To this end, they are entitled to have their needs accommodated, consistent with their duties and obligations as members of society, without being prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. The concept of having one's needs accommodated as part of the aspirations of individuals was added to section 2 in June 1998 to reflect the addition of a new provision expressly adding the duty to accommodate in section 15 of the Act.

Direct discrimination and adverse effect discrimination

There is no duty to accommodate where there is a bona fide occupational requirement...

...to eliminate and remedy discrimination, the Act needs to recognize the fact that a discriminatory act is harmful whether discrimination is intended or not...

...the duty to accommodate is triggered whenever an employment rule has an adverse discriminatory effect on an employee...

Since British Columbia v. British Columbia Government and Service Employees' Union released in September, 1999...

...all discrimination in employment must be justified by a bona fide occupational requirement

Changes in the general interpretation of the intent of the CHRA were signalled by the Bhinder case. In Bhinder v. Canadian National Railway (1985), the Supreme Court of Canada decided that the broad purpose of the Act also covered adverse effect discrimination. The Court held that an employment rule that required all employees to wear hard-hats for safety reasons discriminated against Sikh employees whose religious principles forbade any head-covering but a turban. In a split decision, the Court suggests that, on the one hand, the hardhat requirement is a bona fide occupational requirement, and the special circumstances of an individual should not be taken into account once it is established that an employment rule is a bona fide occupational requirement. There is no duty to accommodate where there is a bona fide occupational requirement. On the other hand, although the hardhat rule was imposed in good faith and not in order to discriminate against members of the Sikh religion, the rule nonetheless has a discriminatory effect on members of the Sikh religion. The hardhat rule is saved, however, because it is a bona fide occupational requirement.

With the Bhinder case, the Court posited that if the purpose of the Act was to eliminate and remedy discrimination, then it needed to recognize the fact that a discriminatory act was harmful whether intended or not. Accordingly, the Act prohibited not just acts of direct discrimination (where individuals were expressly excluded from employment or services because of personal characteristics connected with the listed grounds of discrimination), but also conditions of employment that did not expressly single out a group of employees but had a negative effect on them because of their personal characteristics.

Including the concept of adverse effect discrimination made for a more comprehensive understanding of discrimination. This was an important step. Since Bhinder, employers cannot ignore the effect of their policies on employees based on the prohibited grounds. It is now incumbent upon employers to consider the effect their seemingly benign employment policies might have on all employees employed by them. This development initiated a legal recognition of the fact that each person is different and has different needs and capacities.

In the companion case to Bhinder, O'Malley v. Simpsons-Sears (1985), a company policy adversely affected an employee because of her religion (Mrs. O'Malley could not work on Saturday because she was a Seventh Day Adventist). In O’Malley, the employer had to show that it tried to accommodate her religious needs to the point that it caused undue hardship to the business. In Alberta Human Rights Commission v. Central Alberta Dairy Pool (1990), the Court decided the duty to accommodate was triggered whenever an employment rule had an adverse discriminatory effect on an employee.

With the case of British Columbia v. British Columbia Government and Service Employees' Union released in September, 1999 a new approach, no longer requiring the unrealistic and artificial “direct” versus “adverse effect” distinction, was advocated. In that case, the question was whether certain physical fitness requirements for the job of forest firefighter were justified as bona fide occupational requirements. Instead, all discrimination in employment must be justified by a bona fide occupational requirement that takes into account the duty to accommodate to the point of undue hardship.

The courts have said that the Act, like all human rights legislation, has "quasi-constitutional status." This means that the Act is almost as fundamental to our legal structure as the Charter, even though it is a law passed by Parliament like any other.

The courts, when called upon to decide how to resolve a conflict between human rights legislation and another law passed by Parliament have developed the concept of primacy. The courts have decided that where there is such a conflict, the human rights legislation takes priority, unless the human rights law creates a clear exception. Such exception may be in the human rights legislation itself, like the bona fide occupational requirement, or it may be in the other law, such as a provision therein that clearly states that it takes priority over the human rights law. It would require a very serious matter for Parliament to expressly override the fundamental values in the Act in this way.

THE DUTY TO ACCOMMODATE

Workplace law has been complicated in recent years by a new factor: the impact of human rights legislation. Employers now must consider whether rules or practices that in the past had been considered unproblematic may in fact be discriminatory and, if so, whether they can be modified to accommodate the needs of protected groups.

An employer's duty to accommodate is not limited to on-the-job performance, but begins with the job advertisement in the recruitment stage. Thus it is incumbent upon employers to ensure their job competitions are inclusive and accessible, using not only existing recruitment channels, but also alternate channels, media, and formats.

Employer should conduct the same interviews with someone with a disability as they would with anyone else. Unless the individual raises it him/herself, the job interview is not the appropriate time to discuss his/her disability. After a person has been given a conditional offer of employment, an employer may can inquire about any accommodation necessary to achieve the expected outcomes of the job.

THE VIEW FROM THE SUPREME COURT OF CANADA

Forms Of Discrimination And The Duty To Accommodate

...a rule or standard which, on the surface, is neutral and applies equally to all employees, but has the unintended effect of penalizing one or more employees based on a prohibited ground of discrimination...

...there are times when discrimination is or must be permitted...

...where the employment rule is rationally related to the performance of the job...

...the onus is on the employer to show that the rule is rationally connected to the performance of the job...

The ability of an employer to defend against a claim of direct discrimination depends on that employer’s ability to prove the existence of a bona fide occupational requirement (BFOR).

Over the course of the past decade, the Supreme Court of Canada has elaborated the principles governing discrimination and the duty to accommodate. Two forms of discrimination have been elaborated: direct and adverse effect discrimination.

Direct discrimination in employment occurs where an employer adopts a practice or rule which clearly discriminates on a prohibited ground. A rule barring the hiring of persons wearing glasses would be an example of direct discrimination. On the other hand, adverse effect discrimination arises where an employer for genuine business reasons adopts a rule or standard which, on the surface, is neutral and applies equally to all employees, but has the unintended effect of penalizing one or more employees based on a prohibited ground of discrimination.

An example of this type of discrimination would be a requirement that all employees be available for work on Saturdays, whether or not this conflicts with their day of worship.

Clearly, there are times when discrimination is or must be permitted. In fact, the Supreme Court has held that, where the challenged employment rule is rationally related to the performance of the job but has a discriminatory effect upon a prohibited ground, it will not be struck down. Nonetheless, before such discrimination can or will be permitted, the employer has a duty to take reasonable steps short of undue hardship to accommodate the employee.

The duty to accommodate may be triggered even where the adverse effect resulting from the challenged rule is relatively minor. Once an employee or group demonstrates that a neutral employment rule has a discriminatory effect, the onus shifts to the employer to show that the rule is rationally connected to the performance of the job. Failing that, the employer must show that reasonable steps, short of undue hardship, were taken.

One can thus conclude that the duty to accommodate applies only in cases of adverse effect discrimination. Or, conversely, the duty to accommodate does not apply in cases of direct discrimination.

Examples of direct discrimination are often very clear and obvious. Why then is there no need to accommodate disadvantaged employees in such cases? The reason lies in the definition of direct discrimination. The ability of an employer to defend against a claim of direct discrimination depends on that employer’s ability to prove the existence of a bona fide occupational requirement (BFOR). In other words, that there is a bona fide – real – reason for the discrimination. Discriminating against men, whose religion requires them to wear beards, may be seen as direct discrimination. If, however, this exclusion is based on the bona fide occupational requirement that the job in question requires the use of tight-fitting breathing apparatuses when in an environment of noxious fumes, then the discrimination may be permitted.

...it is disconcerting that different remedies depend on the stream into which an inquiry shunts the analysis of the problem...

...a prima facie discriminatory standard is a bona fide occupational requirement (BFOR)...

Distinguishing between direct and adverse effect discrimination is not always a simple matter. In fact, in 1999, in a case involving a female firefighter in British Columbia, the Supreme Court of Canada revisited this distinction and questioned the utility of the “adverse effect” versus “direct” discrimination distinction.

It was suggested that the conventional approach of categorizing discrimination as "direct" or "adverse effect" discrimination should be replaced by a more unified approach for several reasons. First, the distinction between a standard that is discriminatory on its face and a neutral standard that is discriminatory in its effect is difficult to justify because few cases can be so neatly characterized. Second, it is disconcerting that different remedies are suggested, depending on the stream – direct or adverse effect -- into which an initial inquiry shunts the analysis of the problem. Third, the assumption that leaving an ostensibly neutral standard in place is appropriate so long as its adverse effects are felt only by a numerical minority is questionable: the standard itself is discriminatory because it treats some individuals differently from others on the basis of a prohibited ground, the size of the "affected group" is easily manipulable, and the affected group can actually constitute a majority of the workforce. Fourth, the distinctions between the elements an employer must establish to rebut a prima facie case of direct or adverse effect discrimination are difficult to apply in practice. Fifth, the conventional analysis may serve to legitimize systemic discrimination. Sixth, a dual approach may compromise both the broad purposes and the specific terms of the Human Rights Code. Finally, the focus by the conventional analysis on the mode of discrimination differs in substance from the approach taken to s. 15(1) of the Canadian Charter of Rights and Freedoms.

The Court suggests a three-step test be adopted for determining whether an employer has established, on a balance of probabilities, that a prima facie discriminatory standard is a bona fide occupational requirement (BFOR).

First, the employer should show that it adopted the standard for a purpose rationally connected to the performance of the job. The focus at the first step is not on the validity of the particular standard, but rather on the validity of its more general purpose.

Second, the employer should establish that it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose.

Third, the employer should establish that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

ACCOMMODATION IN THE SPECIAL CASE OF DISABLED EMPLOYEES

The Meaning Of 'Disability'

Implementation Of The Duty To Accommodate

Essential duties of the position

Assignment to an available position

Creation of a position

Temporary modified work and training

In some situations, an employer may offer accommodation in the form of a part-time position. Where this results in economic loss to the employee, and is imposed against his will, the employer may have to demonstrate that doing otherwise would have entailed undue hardship. Where an employee has been accommodated by being assigned an excluded position, that employee may be in a position to claim that the loss of bargaining unit status, with its attendant benefits, constitutes discrimination.

Where it was determined that a transfer to an excluded position was the only alternative, one arbitrator has ordered that the employee suffer no loss of seniority, service or benefits, but held that she could not retain full bargaining unit status for other purposes. Where the employee is transferred into another bargaining unit, the union representing that unit may be in a position to argue that crediting the employee with full seniority would constitute an undue hardship for its members.

The Parties' Relative Obligations In Accommodating Disability

Unions may contribute to discrimination by participating in the formulation of work rules that have a discriminatory effect...

...the union shares a joint responsibility with the employer to accommodate affected employees...

The Supreme Court has held that the employer is in the best position to determine how to accommodate employees without undue hardship and therefore bears the responsibility for doing so. However, an employee who is adversely affected by a rule also has a responsibility to bring the facts relating to the discrimination to the employer's attention. Furthermore, unions may also be liable for discriminatory rules, and have a duty to accommodate employees adversely affected by those rules.

Unions may cause or contribute to discrimination by participating in the formulation of work rules that have a discriminatory effect. Through the process of collective bargaining, unions play a role in establishing the web of rules that govern behaviour in the workplace. These rules may, on occasion, result in adverse discrimination.

However, even if a union did not participate in the formulation of discriminatory rules, its actions may impede an employer's reasonable efforts to accommodate affected employees. In such cases, an employer’s best efforts to accommodate an employee might be met by a union’s threat to file a grievance over the proposed accommodation. Since the union has a duty to represent the interests of a larger group of workers, such actions should not always be seen as mean spirited. This duty to represent the entire membership of the union cannot be taken lightly.

Although not held to the same standard as the employer, the union shares a joint responsibility with the employer to accommodate affected employees. Because the employer, which has charge of the workplace, is in a better position to formulate accommodations, it is expected to initiate the process. This is consistent with the language of collective agreements. Whereas both parties bargain over certain aspects of workplace governance, the employer maintains “management’s right to manage” the enterprise. As such, management is in a better position to initiate accommodation procedures.

The Supreme Court has generally been sensitive to unions’ duty to represent a collectivity. If an employer's proposed accommodation is disruptive of a collective agreement, or prejudices other employees, the union generally will be permitted to withhold its consent for accommodation. In such situations, the Court has said that the employer must first "canvass other methods of accommodation before the union can be expected to assist in finding or implementing a solution.” The Court appears to be saying that the union will not be forced to abandon its obligation to represent its membership.

What Is 'Undue Hardship'?

What constitutes reasonable accommodation short of undue hardship is a question of fact and will vary with the circumstances of the case...

Are there limits to what employers must do to make the workplace accessible to disadvantaged employees? The answer to this question lies in the definition of “undue hardship”. Employers are, in fact, obliged to offer reasonable accommodation short of undue hardship.  For employers in a position of having a duty to accommodate, the crux of the question is, “When has the threshold of undue hardship been reached?”

What constitutes reasonable accommodation short of undue hardship is a question of fact and will vary with the circumstances of the case. Some hardship is acceptable; it is only 'undue' hardship that satisfies this test. Over time, the Court has mentioned several factors relevant to an assessment of whether hardship is undue. Undue hardship includes financial cost, disruption of a collective agreement, the morale of other employees, interchangeability of the work force and facilities, the size of the employer's operation (as this relates to the employer's ability to bear the cost and adapt the workplace), safety, interference in the operation of the employer's business, and the overall economic climate.

So, what is “undue hardship”? From cases heard by the Supreme Court, one concludes that employers will not be required to create superfluous positions, or to tolerate substandard performance. Extreme unpredictability in the employee's attendance at work need not be tolerated. Such accommodations have been equated with undue hardship, even where the employer has the resources to endure them. The general view is that an employer is entitled to expect the accommodated employee to contribute to its production requirements.

Nor is an employer necessarily expected to pay a disabled employee more than the new position's pay rate. In a case where an injured employee was returned to work in a lower-rated position that was within her restrictions, an arbitrator ruled that there was no requirement to maintain her previous rate of pay. As she was unable to perform the core duties of her old job, the arbitrator reasoned that she was not entitled to her previously higher rate of pay.

An employer may argue that normal business operations have been unduly impaired if accommodation entails a substantial departure from the terms of a collective agreement. For example, where accommodation impedes the operation of seniority, it is likely that one of the parties will claim that the point of undue hardship has been reached.

In one case, an employer recalled a disabled employee over one with more seniority, because the recall position was one within the disabled employee's restrictions. The union challenged this decision on the grounds that the employer had not considered other forms of accommodation that did not involve a breach of the collective agreement. The arbitrator agreed with the union, holding that the employer could not breach the terms of the collective agreement without first attempting to accommodate the employee in some other manner. In this case, the arbitrator invoked a decision of the Supreme Court of Canada in ruling that the employer bore the initial obligation to accommodate the disabled employee, and that the union's joint responsibility would arise only if the terms of the collective agreement were used to justify discrimination.

Where the collective agreement itself is held to be discriminatory, it isdifficult to claim that breaching its terms will result in undue hardship. This was the case where a collective agreement provided for layoffs in reverse order of seniority beginning with the lowest job category. The arbitrator held that the laid off grievor had, in effect, been trapped in the lowest job category due to the restrictions imposed by his disability. To remedy the discriminatory effect of the collective agreement, the union requested he be reinstated and that an employee with less seniority from a higher-rated group be displaced. The employer countered that this remedy would expose it to a grievance, thereby causing it undue hardship. The arbitrator rejected this argument and held that it was unreasonable to prevent the employee who had suffered discrimination under the collective agreement from exercising his seniority against the junior employee.

Effect on morale of other employees

A substantial departure from key terms of the collective agreement, such as seniority, may have a disruptive effect on the morale of other employees. In one case where employee concerns were held to be well-grounded, the union had cooperated in allowing a disabled employee to transfer into the bargaining unit. However, following a consultation with its members, it objected to crediting her with full seniority accumulated in her former unit. The members were concerned that, with layoffs looming, their job security would be affected by permitting the employee to retain her competitive seniority. The arbitrator agreed that the concerns of the unit members were legitimate, and ruled that transferring the employee's full seniority would constitute undue hardship for the union.

The effect of accommodation on employee morale has also been found to create undue hardship in cases where employees were consistently short-staffed due to the disabled employee's unreliable attendance, and where they experienced a reduction in their weekend time off, or removal of favoured work assignments normally governed by seniority.