to address harassment, bullying and discrimination
with Stephen Hammond
Tip #51 — ACCOMMODATION EXAMPLES - part three
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. While there are many tribunal cases with rulings of employers not making appropriate accommodations, there are still many where they have tried their best, but aren't expected to go any further. Lately, there have been some cases often referred to as "hybrid" accommodations, in which both the employer and the employee are expected to do their bit to find an appropriate accommodation.
Here are examples where the employer is able to prove undue hardship - where the employer did not have to make an accommodation even though it meant discriminating against the employee.
Darshan Singh Pannu worked for the pulp mill Skeena Cellulose in British Columbia. As a recaust operator, he worked in the part of the mill where poisonous gases are piped in to burn off in 2,000 degree recaust kilns. In the event of a gas leak, he was responsible for wearing a mask - a self-contained breathing apparatus - to protect him while doing an emergency shut down of the recaust area equipment while others evacuate. However, as a Sikh who wears a beard and does not cut his hair as part of his faith, Pannu was unable to create a tight seal to his face as required by the Workers' Compensation Board. The human rights adjudicator found that in the event of an emergency, Pannu would be putting not only himself at risk, but others in the mill, and as such, that created an undue hardship for Skeena to accommodate Pannu in that particular job. Hence, they were allowed to discriminate against him based on his religion, for the purposes of this job.
Sidney MacEachern worked as a stationary engineer in the boiler plant at St. Francis Xavier University in Antigonish, Nova Scotia before joining the World Wide Church of God. His need for strict observance of their Sabbath from sundown Friday to sundown Saturday, along with eight holy days in the spring and fall, greatly conflicted with his twelve-hour rotating shifts. The adjudicator went through most of the Supreme Court of Canada's factors to determine if accommodation was possible, such as cost, safety, morale, etc. In the end, the adjudicator concluded that accommodating MacEachern would have been an undue hardship on the university. A key factor in this case was the small size of the university, where having to take on another engineer's salary would have caused undue hardship. A larger university may have ended up with a different result.
Karen Harris was a student at Victoria's Camosun College's criminology program. She and the college agreed that she had developed multiple chemical and environmental sensitivities that prevented her from attending certain classrooms. Harris was able to work out agreements to sit near the window for some classes, and to tape others, or have people take notes for her. However, three courses needed class participation and some kind of activity on the part of the student. With one course in particular, Psychology 154/Interpersonal Relations, the stated objectives of class included experiential learning that could be achieved only through group classroom participation. The adjudicator found that the college could not have reasonably accommodated Harris's desire to tape the class without creating undue hardship.
1) Consider your legitimate needs - if you need certain requirements for your workplace sometimes you'll have to discriminate...even based on human rights. If you can justify it as a legitimate job requirement, you are in a better position. This "legitimate" job requirement is often referred to as a bona fide occupational requirement (BFOR). But keep in mind it has to be legit. If your rule lacks merit and someone challenges it, the jig is up.
2) Don't worry about extremes - sometimes someone will say, "Well, if we allow Susan to have her Sabbath off, then everyone will want to join her faith." Don't worry as that will never happen. If someone suddenly asks for what seems like an impossible request, don't feel threatened - even though the employer has to go a long way to make accommodations. Always listen to the need for an accommodation and be open to suggestions, but don't think that just because a human rights accommodation is requested, that it must be given. Use common sense and ask for advice.
3) Consider the risks - sometimes accommodations come into conflict with policies of risk reduction or insurance plans. Once again, seek advice, but understand that a person may be willing to take some risk, when no others are at risk (e.g. Not wearing a motorcycle helmet for Sikhs). But when that risk is too great to them (a helmet in a very risky workplace) then your insurance company won't allow that. If these come into conflict, someone at another level of the company (usually) will make that determination.