with Stephen Hammond
Tip #49 — ACCOMMODATION EXAMPLES - part one
When the Supreme Court of Canada states that an employer must make accommodations towards an employee short of "undue hardship," they want workplaces to find a way to employ and offer services to people who don't fit the same mould as everyone else. If, in the process, we have to make some changes, so be it. Let's be clear: Human rights legislation puts limits on the way you can run your workplace, including private businesses. The court makes it clear that businesses must make accommodations to both employees and clients.
Here are just a few examples from the courts and human rights tribunals where a business was required to find a reasonable accommodation to the point of undue hardship. In many cases, undue hardship has been difficult to prove.
Three Jewish teachers — Joseph Kadoch, Louise Elbraz and Jacob Lahmi — working for the Quebec school board in Chambly, were allowed to take a day's leave of absence, without pay, to celebrate Yom Kippur. They wanted to be paid for the day and grieved under provisions of the collective agreement. At the Supreme Court of Canada, the Court held that the school board must pay for the day off because they had not shown that doing so would constitute an unreasonable financial burden.
Larry Renaud, a custodian of Seventh-Day Adventist faith, could not work the usual Monday to Friday night after-school shift because his Sabbath started at sunset Friday. The Central Okanagan School District in B.C's interior, proposed an alternate Sunday to Thursday shift, but his CUPE Local 523 threatened to grieve if the shift change was implemented. Without this agreement from the union, the school board let Renaud go. At the Supreme Court of Canada, the school board and union were both found liable for not accommodating the religious practices of the employee. The ruling stated that the cost of defending a grievance would not have created an undue hardship for the school board, and made it clear that a collective agreement or contract cannot get in the way of human rights legislation.
Barbara Turnbull and four other persons in wheelchairs were impacted by a policy of Famous Players, a theatre chain, to exclude persons in wheelchairs at three "inaccessible" theatres in Toronto. The Ontario Human Rights Board of Inquiry found in favour of the complainants and ordered the company to make the three theatres accessible within two years of the decision, pay the complainants tens of thousands of dollars in damages, and review their training program for providing services for persons with disabilities. The Board also ordered, "Any film being shown exclusively at those three inaccessible theatres shall be made available to a patron using a wheelchair, upon that person's request of Famous Players, at an accessible theatre to be agreed to by that person and Famous Players."
In the end, Famous Players decided to close the theatres. However, before the final theatre was closed, they had to go through a second hearing to take care of the four-month gap between the time the renovations were to have been completed and the date the theatre closed.
1) Consider what it means to create "undue hardship" for your work - as this is the test that will be asked of you if anything is ever disputed. Remember that mere inconvenience is not enough. If you think about it ahead of time, it won't be too tough to answer when you're asked for an accommodation.
2) Be prepared to go further than you think - when you look to these examples above, does it make you realize how far you are expected to go? Let's face it - if you were in a room trying to negotiate a settlement prior to a human rights hearing, you know that you would likely go further than you initially might have wanted to. You know this because if you don't, an adjudicator will make the decision for you - and it might not be pleasant. Give that some thought before it gets to the lawyers.
3) Ask for advice - because some of these are complex. Some are easy to do, but others will need authority from above. Don't think you're a failure for asking advice. You'll more likely be seen in a negative light if something blows up because you didn't ask for advice. There are lots of people, whose whole jobs are dealing with issues of human rights accommodations - you don't have to be that expert - you just need to know where to find them.
This is TIP #49 of 52 WEEKLY TIPS for managers and supervisors.
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