Stephen Hammond's
Tip #21 — 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 equalled 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 and have ruled as such in some important cases. 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.
SUPERVISORY SUGGESTIONS:
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."
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.
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.
Tip #22 — EDUCATE EMPLOYEES ABOUT ACCOMMODATION
When an employee's or customer's request for an accommodation is due to a human rights need, the employer must make the accommodation to the point of undue hardship. Often the accommodation can be made and very often it costs nothing or very little. However, the real obstacle can come from other employees unhappy with one person being accommodated. Mere dissatisfaction from other employees will not scuttle an accommodation, but it can make it more difficult to bring about the change you're looking for.
Even though today's supervisors, managers, business owners and union shop stewards have some understanding of "reasonable accommodation," the whole notion of it bugs a lot of people. They might think:
“Why should one person, because of religion, disability, sex, family status, or any of the human rights protected grounds, be able to have a different set of work rules when the rest of us have to abide by those same rules? In fact, if we try to assert our so-called ‘rights’ in the same way these few are being accommodated, we will be subject to discipline or termination of employment. It just doesn't seem fair.”
But whether you, as a supervisor, like it or not, it's up to you to get your staff to understand what accommodating is about and to accept that it is a part of doing business.
Not long ago a case came before the Supreme Court of Canada. A school board in Quebec didn't want to allow a student to wear his kirpan (ceremonial dagger) even though there were no known examples of anyone getting hurt by a kirpan in Canada's history. The family agreed to a compromise of giving their son a very small dagger, sewn into his clothing, but the school board said no. The school board asked the court how they would explain the situation to students, parents and teachers that any other knife was not allowed, yet this dagger was. Former Supreme Court of Canada Justice Louise Charon said, "It is incumbent on the schools to discharge their obligation to instill in their students this value that is at the very foundation of our democracy." The "value" Justice Charon referred to is the value of accommodating religious differences. The same holds true for employers in any workplace.
SUPERVISORY SUGGESTIONS:
Don't expect everyone is going to accept it - for many, this is a stellar example of "politically correct b.s." 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 but sabotaging a policy set by the Supreme Court of Canada is another, and it will only increase your chances of litigation or bad publicity.
Differentiate between accommodation and slacking 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 difference. In many circumstances, an employer will go to great lengths to check the reality of the request. How involved is this employee with their religion, or does the disability truly limit this employee’s ability to do the job? Keep in mind we accommodate employees all the time for issues 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 this person at their word and make accommodations where possible.
Let employees know it's there for them – similar to 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.
These are TIPS 21 & 22 of 26 BI-WEEKLY TIPS for managers and supervisors.
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