to address harassment, bullying and discrimination
with Stephen Hammond
Tip #44 — ACCOMMODATING UNTIL "UNDUE HARDSHIP"
If one of your policies or decisions is found to discriminate against someone on a human rights protected ground, whether directly or indirectly, you'll need to accommodate that person. How far do you have to go? The courts say up to the point of, or short of, "undue hardship."
Defining "undue hardship" is perplexing at best and uncertain at worst. The Supreme Court of Canada has laid out criteria, while making it clear that their list is not exhaustive; the definition will depend on the facts of each case. 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."
Therefore, from a practical perspective, if you find you have hiring standards, policies, procedures or work rules that may discriminate against someone, look long
and hard for a solution. Don't be ready with a "no" just because you haven't done it before, or because it might cause a few workplace wrinkles.
You may be thinking, "How far do I have to go to accommodate? Shouldn't employees have to give a little as well?" You're not alone in your thinking and you're right. The Supreme Court notes that employees also have to be reasonable. Affected employees might not have to come up with a solution to the problem, but if they don't accept a reasonable solution, then the employer has every right to deny the requested accommodation. The Court makes it clear that the solution does not have to be "perfect" to be reasonable. If people start digging in their heels over an accommodation, it's best to step back, think rationally and look for a reasoned approach.
1) Anticipate accommodations - many times workplaces are reacting to accommodations because they haven't thought about them. Different religious holidays are easy ones to anticipate. If an employee comes to you requesting a day off for religious purposes, don't be surprised. If you've thought about it, then you'll already know the procedure instead of just saying "no."
2) Be careful of compromise - if you can get an employee who is looking for an accommodation to compromise, then it might help your situation. Shifting work to accommodate a disability, might mean the person needs to shift hours a bit. But sometimes employers think a compromise will help when there isn't always room for compromise. You're not going to get an employee to come in for part of their Sabbath, for example. Compromise is good for some things, but not all things.
3) Give your heels a rest - some of the most publicized cases come from employers and employees digging in their heels. Give your heels a rest and step back, or talk to someone not caught up in the situation. Let cooler heads prevail and you'll be surprised how people are more open to discussion and even compromise when appropriate.