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Volume I, Issue I

September 2004

Disabilities and the Duty to Accommodate

The Meiorin Case

Reproduced with permission from Torstar Syndication Services

Home • The Meiorin Case • The Grismer Case • The L.B. Case • The Desormeaux Case • The Berg Case • The Howard Case • The Meikle Case • Ontario Human Rights Commission • Queen's University • Editorial • Printer Friendly Version

Undue Hardship Standard

From: The Opportunity to Succeed

Undue Hardship Standard

As discussed previously, whether an accommodation is appropriate is a completely separate and distinct determination from whether that accommodation would result in undue hardship. Where an accommodation is appropriate, but would result in undue hardship, the provider is required to consider phased-in accommodation, accommodation at a later date, next-best accommodations, or interim accommodations.[130].

The threshold for undue hardship is high. This is necessary to ensure that the aims of the Code are achieved. The submission of the LDAO states:

As a caring society, we have an obligation to ensure that all vulnerable members of our society are guaranteed access to services, supports and accommodations to help them overcome the negative impacts of their vulnerability. When it comes to providing an enabling education to students with disabilities, it is society's obligation to help them progress towards independence and a reduction of their vulnerability.

Because of the complexity of the provision of accommodation to post-secondary students with disabilities, some confusion exists with respect to who exactly has responsibility for the cost and provision of accommodation for students with disabilities. Is it disability service departments, each individual college or university, or the MTCU?

As discussed in the Undue Hardship Standard section in the first part of this Report, the Commission's Disability Policy states that:

Costs of accommodation must be distributed as widely as possible within the organization responsible for accommodation so that no single department, employee, customer or subsidiary is burdened with the cost of an accommodation. The appropriate basis for evaluating the cost is based on the budget of the organization on the whole, not the branch or unit in which the person with a disability works, or to which the person has made an application. In the case of government, the term "whole operation" should refer to the programs or services offered or funded by the government.

Ultimately, it is the service provider who is responsible for ensuring that services are available to all students, without discrimination because of disability. As with elementary and secondary institutions, the determination of who the service provider is in a particular situation will be a factual determination, and will vary from case to case. In most cases, it will be the post-secondary institutions, in some it may also be the MTCU. [131]

However, disability service providers within post-secondary institutions are not themselves providers of the service of education. The creation of offices for students with disabilities is one way in which post-secondary institutions have attempted to meet their duty to provide equal education. However, the responsibility for accommodation rests with the post-secondary institution as a whole, and not simply with the disability service providers.

The undue hardship standard applies to all service providers, whether public or private. That is, it is not open to private career colleges, private universities or professional licensing bodies to refuse to accept students with disabilities, or to ask them to waive their rights to accommodation as a precondition of entrance, unless they can meet the undue hardship standard set out in the Commission's Disability Policy. Whether or not private institutions have fewer resources than public universities and colleges, the ultimate standard for costs is the same: whether there are quantifiable costs related to accommodation that are so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.

How do you determine if a standard constitutes a bona fide occupational requirement?

Facts:

After three years of satisfactory service with the provincial government, a female firefighter (Meiorin) was dismissed when she failed to meet a newly imposed aerobic standard. In arbitration, Meiorin complained that the aerobic standard discriminated unfairly against women. The Government denied that the standard was discriminatory. It claimed that some women could meet the aerobic standard, which was reasonably necessary for maintaining safety. The Supreme court of Canada ruled in favor of Meiorin, who was reinstated to her former position and compensated for her lost wages and benefits. British Columbia (Public Service Employee Relations Comm.) v B.C.G.E.U. (1999), 35 C.H.R.R. d/257 (S.C.C.).

Questions:

Was the aerobic standard discriminatory?
Did it constitute a bona fide occupational requirement ?

Rulings:

Reasoning:

In making its ruling in favor of the complainant, the Supreme Court of Canada established the Meiorin three-step test for bona fide occupational requirements. According to the Court, once the complainant establishes that a standard constitutes discrimination, the respondent must justify the standard by establishing:

That is adopted the standard for a purpose rationally connected to the performance of the job.
That is adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
That the standard is reasonably necessary to the accomplishment of that legitimate purpose. 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 (p 298).

In the Meiorin case, the aerobic standard passed the first two parts of the test, but failed the third one. The Court ruled that the respondent relied on impressionistic evidence and therefore failed to establish that the standard was reasonably necessary to the accomplishment of safe firefighting.

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