Volume I, Issue I

September 2004

 Queen's Human Rights Bulletin

Disabilities and the Duty to Accommodate

The Meiorin Case

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  The Duty to Accommodate: Legal Issues

Policies and Guidelines on Disabilities and the Duty to Accommodate

Once a prima facie case of discrimination is found to exist, the legal burden shifts to the person responsible for accommodation to show that the discrimination is justifiable. The following sections will deal with the basic legal test that persons responsible for accommodation must meet, and with the shared responsibilities of all parties to the accommodation process.

Section 11 of the Code, combined with section 9, operates to prohibit discrimination that results from requirements, qualifications, or factors that may appear neutral but which have an adverse effect on persons with disabilities. This is often called "adverse effect", or "constructive" discrimination. Section 11 allows the person responsible for accommodation to demonstrate that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the group to which the complainant belongs cannot be accommodated without undue hardship.

Section 17 also creates an obligation to accommodate, specifically under the ground of disability. Section 17 states that a right is not infringed if the person with a disability is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right. However, this defence is not available unless it can be shown that the needs of the person cannot be accommodated without undue hardship.

Section 17 addresses two important differences between disability and other Code grounds.²⁶ Firstly, it recognizes that discrimination against persons with disabilities is not always grounded in negative stereotypes but rather can be based on society's failure to accommodate actual differences. Secondly, it emphasizes the need for individualized accommodation, because the ground of disability "means vastly different things depending upon the individual and the context".²⁷

The Ontario Court of Appeal has confirmed recently that both sections 11 and 17 apply to persons with disabilities.²⁸ However, as a result of two landmark decisions of the Supreme Court of Canada,²⁹ the distinction between direct discrimination and adverse effect discrimination has become of much less practical significance. The Ontario Court of Appeal has confirmed that this "unified approach" should be applied to Ontario human rights law as well.³⁰ The practical result is that in most cases of discrimination on the ground of disability, individualized accommodation will be necessary.

The Supreme Court of Canada sets out a framework for examining whether the duty to accommodate has been met.³¹ If prima facie discrimination is found to exist, the person responsible for accommodation must establish on a balance of probabilities that the standard, factor, requirement or rule

(1)  was adopted for a purpose or goal that is rationally connected to the function being performed;

(2)  was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal; and

(3)  is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.

As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. This ensures that each person is assessed according to his or her own personal abilities instead of being judged against presumed group characteristics.³²

The ultimate issue is whether the person responsible for accommodation has shown that accommodation has been provided up to the point of undue hardship. In this analysis, the procedure to assess accommodation is as important as the substantive content of the accommodation.³³

The following non-exhaustive factors should be considered in the course of the analysis:³⁴

• whether the person responsible for accommodation investigated alternative approaches that do not have a discriminatory effect;
• reasons why viable alternatives were not implemented;
• ability to have differing standards that reflect group or individual differences and capabilities;
• whether persons responsible for accommodation can meet their legitimate objectives in a less discriminatory manner;
• whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on those to whom it applies; and
• whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.

3.3 MOST APPROPRIATE ACCOMMODATION

The duty to accommodate requires that the most appropriate accommodation be determined and then be undertaken, short of undue hardship. The most appropriate accommodation is one that most respects the dignity of the individual with a disability, meets individual needs, best promotes integration and full participation, and ensures confidentiality.

Accommodation is a process and is a matter of degree, rather than an all-or-nothing proposition, and can be seen as a continuum. At one end of this continuum would be full accommodation that most respects the person's dignity. Next is phased-in accommodation over time, followed by the most appropriate accommodation only being implemented once sufficient reserve funds have been set aside. Alternative accommodation (that which would be less than "ideal") might be next on the continuum when the most appropriate accommodation is not feasible. Alternative accommodation might also be accomplished at a later date if immediate implementation would result in undue hardship. Or, alternative accommodation might be implemented as an interim solution while the most appropriate accommodation is being phased in or implemented at a later date.

Whether an accommodation is "appropriate" is a determination completely distinct and separate from whether the accommodation would result in "undue hardship" (the test that has to be met under sections 11 and 17(2) of the Code).

Accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges experienced by others or if it is proposed or adopted for the purpose of achieving equal opportunity, and meets the individual's disability-related needs. If the accommodation meets the individual's needs and does so in a way that most respects dignity, then a determination can be made as to whether or not this "most appropriate" accommodation would result in undue hardship.

An Ontario Board of Inquiry has ruled that short of undue hardship, the highest point in the continuum of accommodation must be achieved.³⁵ However, if there is a choice between two accommodations which are equally responsive to the person's needs in a dignified manner, then those responsible are entitled to select the one that is less expensive or that is less disruptive to the organization.