with Stephen Hammond
Tip #52 — ACCOMMODATION EXAMPLES - part four
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For years, employers, employees, unions, lawyers and scholars have been debating how far employers and businesses have to go to accommodate people. The list of criteria set forth by the Supreme Court of Canada isn't exact and does not give people a lot to work with. But just because we are confused, doesn't mean we can throw up our arms in frustration when we are confronted with a possible accommodation issue.
You'll do yourself a favour by taking a wide view of what constitutes an accommodation and put yourself in the shoes of another person, even if just for a moment. And if you think Canada has gone as far as it can go on this issue, think again.
Years ago, with a case involving Tawney Meiorin, and in a unanimous decision, the Supreme Court of Canada got rid of some of the more perplexing interpretations of accommodation and made it easier to understand — that is, from a legal interpretation. With this case, the courts moved the pendulum even further to accommodate differences in the workplace. Many human rights adjudicators and lawyers have picked up on this, but I don't think employers in the rest of the country have recognized the importance of this decision or how it has impacted the way businesses must treat people who don't fall into the majority.
With this decision, the Court adopted a three-step test to find out if a discriminatory "standard" (action, policy, requirement, etc.) is in fact a legitimate occupational requirement. With this test, an employer has to establish that their standard is related to the job, is done in good faith and can't be accommodated in some way. Take note of what was said about undue hardship: "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." [emphasis added]
Notice how they said it must be "impossible" to accommodate an employee to the point of undue hardship? In my opinion, the court is saying, "You'd better look long and hard to accommodate differences."
In the body of the decision, Justice McLachlin (now Chief Justice) went beyond the facts of the case for Meiorin and delved into the bigger picture of why we need to accommodate differences and why we need to stop trying to assimilate people into positions that just won't fit. I feel the court sent a message saying we need to look at all Canadians as equal, and stop thinking, "Aren't I nice for accommodating you if you aren't 'normal'?" I think the court is saying, "Don't complain when someone asks your business to fund wheelchair access; think, 'Why did I create access only to people who can walk in the first place?'" The courts and adjudicators, following their lead, will find it increasingly difficult to sympathize with an employer who claims it's an undue hardship to accommodate someone.
Three months later the court really hit their point home in the case of Grismer where issues of disabilities came up. Justice McLachlin, speaking for a unanimous court, said, "the thrust of human rights legislation is to eliminate the assumption...[that] persons with disabilities are unable to accomplish certain tasks" and to break down the barriers that stand in the way of equality for all. "It's all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment," she stated.
1) Think of accommodation as a right, not a charity — because it is. Too often we think we're doing someone a favour by making an accommodation...and they should be grateful for any bit we're doing. An accommodation for religion, disability and other criteria is and will continue to be a requirement. Businesses will have a tougher time refusing jobs and services to people unless they can show there is no chance of accommodating those differences.
2) Go beyond personal values — What makes religious accommodation difficult is we know so little about religions beyond our own. We are going to be asked to accept and understand people in the minority with increasing frequency, and some of what they believe will go against our basic beliefs and values. We are being asked to challenge what we know. If we're wise, we'll meet that challenge.
3) Find ways to soften the financial burden — many accommodations cost no money at all. Some take organizational time and others involve flexibility on the part of employees and employers. Then again, some accommodations will incur costs. Financial assistance or equipment from a government or non-governmental agency sometimes helps. Don't assume you have to do it all yourself. Check around and see what is offered.
This is TIP #52 of 52 WEEKLY TIPS for managers and supervisors.
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