The Duty to Accommodate revisited and What in the World is "Undue Hardship"?

In a previous post, I touched generally upon the concept of the duty to accommodate in the workplace.  I explained how the duty to accommodate is, in practical terms, a two-fold duty: the duty to accommodate comprises both proactive and reactive elements.  In this post, I'll discuss these elements of the duty to accommodate in more detail.

Employers must be proactive

Employers must proactively build liberal conceptions of equality into their workplace.  They would do this by ensuring their workplace standards, rules or practices and their actual work environments are designed to be as inclusive as possible.  The goal here is for employers to take active steps to remove barriers that prevent employees or prospective employees who are protected by human rights legislation from performing to their full potential. 

So, for example, if an employer is looking at establishing physical standards that job applicants must meet in order to be hired for a particular job in its workplace, the employer should ensure that those standards have equality built into them.  In this particular example, an employer may need to consider such things as creating separate benchmarks for men and women and, also, incorporating individual testing to determine if a person who does not meet the physical standards for disability-related reasons can still do the job with modifications.

Employers must be appropriately reactive

Employers must adjust the terms and conditions of the workplace or change the functions of a job if an employee or prospective employee is unable to fulfil a job requirement or meet a workplace expectation and that inability is tied to a protected characteristic under human rights legislation.  An employer is required to make these kinds of modifications "to the point of undue hardship." 

As an example, let's say you have a workplace rule that requires all employees to wear hardhats on the job.  When you established this rule, you did what you were supposed to do under the first arm of the duty to accommodate -- you examined the rule and considered whether it was the least discriminatory means of ensuring the safety of your employees.  You decided that it was and so made it mandatory, no exceptions, for everyone to wear the hardhats.  After you put this rule into place, an employee comes to you to say that, due to his religion which requires him to wear a turban, he cannot wear the hardhat.  Under the second arm of the duty to accommodate, you now have to "react" by examining whether an accommodation can be made for this particular employee.  The law says it does not matter that you made your original rule mandatory for everyone to follow.  In examining the request for accommodation, this would require you to look at whether exempting this employee from the hardhat requirement would pose a safety risk either to himself or his co-workers.  In this particular example, you would have guidance from case law which states that employees requesting accommodation are entitled to bear some safety risk.  If it could be shown that the safety risk involved in exempting this employee from the hardhat rule was borne solely or primarily by him, undue hardship would generally not be reached and the employer would be required to accommodate.

What is undue hardship?

By law, employers are required to make substantial efforts to accommodate employees requiring accommodation in the workplace.  It is only when an employer can show that it would be impossible to accommodate the employee without causing the employer undue hardship that exemptions from the duty to accommodate are permitted.

The term "undue hardship" is not specifically defined in the Manitoba Human Rights Code or in Canadian case law.  There are some guideposts to consider (more on this in a moment) but whether or not undue hardship is reached in a given fact situation depends on the specifics of that situation.  (Yes, I know you're thinking that's not very useful -- give me a moment and I'll try to fill in the blanks).   What it all comes down to is that undue hardship is the limit of an employer's capacity to make changes in its workplace to remove barriers impacting employees protected by human rights legislation. 

While there is no specific and consistent definition of undue hardship in the law, legal decision makers typically give consideration to six guideposts or factors in determining whether the point of undue hardship has been reached in a situation, although these factors are noted in the case law as not being exhaustive:

1. financial cost;
2. impact on a collective agreement;
3. problems of employee morale;
4. interchangeability of the work force and facilities;
5. size of the employer's operations;
6. safety.

In order to prove undue hardship on these six factors or any others that might apply in a given case, employers must be able to put forward actual evidence.  Assumptions, speculation or opinion will not be sufficient.  Expert opinions, detailed financial reports, assessments on the impact to a collective agreement are the types of evidence that might need to be considered. 

The trends in the case law since 1999 show that the undue hardship threshold is very high.  Employers are being required to demonstrate significant impact to the viability of their businesses before undue hardship will be found.  And, quite frankly, there are very few cases since 1999 that have been decided in favor of employers arguing undue hardship.  The underlying premise behind this trend is that employers bear a responsibility, as the party that controls the workplace, to ensure those workplaces are as fully accessible as possible.  With workplaces becoming more and more reflective of the diversity of our general population, it makes sense that more is being required of employers to ensure the needs of that diverse population are being met within the workplace itself.  Inequity in the workplace would never be eliminated if employers were only required to show minor inconvenience to argue against implementing an accommodation. 

So, what does this all mean?  It really boils down to focus.  Employers are best advised to focus their time, energy and resources on ensuring reasonable steps are taken to implement accommodation initiatives in the workplace.  Focusing on "how far do I have to go?" is not going to be a useful exercise.  The reality now is that that endpoint, the undue hardship limit, is rarely going to be reached.