During our recent federal election, many politicians debated the merits of judges making or interpreting laws. Since the Charter of Rights and Freedoms came into effect under our constitution years ago, one of those areas of judicial involvement has been the duty to accommodate. From the Supreme Court of Canada all the way down, the courts have said you can't discriminate against people in the workplace if there is a way to accommodate them in some way. Accommodations are often required for religious differences or for persons with disabilities.
But how far do you have to go? To the point of, or short of, "undue hardship." In determining undue hardship, the Court has said employers should consider the following:
* Financial cost
* Disruption of a collective agreement
* Problems of morale of other employees
* Interchangeability of workforce and facilities
* Size of the employer's operation
* Safety and who bears the risk
But if you think that a few upset employees, or a frustrated supervisor who has to spend more time figuring out schedules, will constitute undue hardship, you need to think again. The late Supreme Court of Canada Justice John Sopinka dispelled the notion that undue hardship equaled inconvenience when he was writing for the Court in a case regarding a British Columbia school custodian. He said it had to amount to "more than minor inconvenience..." to "actual interference with the rights of other employees, which is not trivial but substantial..." "Minor interference or inconvenience is a price we pay for religious freedom in a multicultural society."
The problem is, how do you get employees to accept something that sets up procedures or workplace practices to treat some employees or customers different than others? Here are three suggestions:
* Don't expect everyone is going to accept it. For many, this is a stellar example of "politically correct bull____." No matter how you explain it, some people won't take kindly to a separate set of rules. That's fine, but don't let someone thwart your workplace requirements under the law. Agreeing to disagree is one thing. Sabotaging a policy set by the Supreme Court of Canada will only increase your chances of litigation or bad publicity.
* Try to get people to understand that accommodating someone is not the same as allowing her to slack off. It's not a way of milking the system; it's a way of working within the system, within a person's legal rights. Accommodations are not designed to allow an employee to head to the local bar, ski hill or golf course. For most employees, it allows them to honour a higher set of principles or deal with a physical or mental obstacle. In many circumstances, an employer will go to great lengths to check the reality of the request. How involved is this employee with her religion, or does his disability truly put limitations on his ability to do his job? Keep in mind we accommodate employees all the time for items not nearly as serious as faith or injury. If an employee says "I need a Saturday off next month to attend my cousin's wedding in Red Deer," we usually take him at his word and make accommodations when we can.
* Let other employees know that if they need an accommodation, it will also be available for them. Portray it as an insurance policy. We all pay insurance every year, hoping we never have to collect. Likewise, should we join a religion, get injured or acquire some other set of circumstances requiring special policies, we will be happy that the option is there; it offers peace of mind.
This is a complex issue. If at first you don't succeed (in explaining it) don't worry. Most people struggle with it and it's the issue I'm asked about more than any other. Over time more employees will not only understand the issue better, but people will change their behaviour to assist those who need the accommodation.
Stephen
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Stephen Hammond, B.A, LL.B, CSP, is a speaker, trainer and author working in the field of workplace human rights. Articles, tips and his books Managing Human Rights At Work: 101 Practical Tips to Prevent Human Rights Disasters and Steps in the Rights Direction: 365 human rights celebrations and tragedies that inspired Canada and the world are available on his website www.stephenhammond.ca. Contact Stephen at 866-685-8338 or stephen@stephenhammond.ca
