April 14, 2004 by Israel Foulon LLP
Question: Our company is very labour intensive and we have a concern with respect to some of our older employees. We are finding it difficult to accommodate their physical limitations. Can you provide some information regarding the duty to accommodate an employee and explain what is meant by undue hardship?
Answer: The Ontario Human Rights Code provides that all employees are entitled to equal treatment and employment that is free from discrimination on the basis of certain enumerated grounds which include age. Age is defined in the code as being at least 18 and less than 65. In other words the code does not protect individuals from discrimination in employment on the basis of an age that is less than 18 or more than 65.
But unintentional behaviour can still be considered discriminatory. It is the effect of the action, and not the intention behind it, that is discriminatory. A practice or policy that is discriminatory can be defended on the basis that it is a reasonable and a bona fide occupational requirement. A bona fide occupational requirement must be:
- adopted for a purpose rationally connected to the performance of the job;
- adopted in an honest and good faith belief that it was necessary to the fulfillment of a legitimate business purpose; and
- reasonably necessary to the accomplishment of that work-related purpose.
To show the standard is reasonably necessary, it must be demonstrated that the employees cannot be accommodated without imposing undue hardship upon the employer. A balance must be had between the employer’s right to manage its own business and the employee’s right to be free from discriminatory treatment.
A non-exhaustive list of factors to be considered in determining undue hardship include: financial cost; impact on the collective agreement; interchangeability of the workforce and facilities; employee morale; size of the employer; and safety.
Even if accommodation is costly the employer may be required to assist the employee. The larger the business, the more likely it is that it can afford to permit a wider range of accommodations for an employee.
When safety is a concern, there may be risks both for the employee seeking accommodation and for other employees. Factors relevant to a health and safety risk include:
- the willingness of a person to assume the risk in circumstances where the risk is to his own health or safety;
- whether there is a serious risk to the health or safety of others;
- the types of risk legally tolerated at the place of work; and
- the types of risk tolerated within society.
An employer should consider all possible options in an attempt to accommodate the employee and should be proactive in meeting the duty to accommodate. An employer should be diligent in gathering all information necessary to thoroughly investigate the options of accommodation.
An employee cannot be expected to be accommodated perfectly and the employee must also cooperate in the accommodation process. Examples of methods of accommodation include adaptive technology or equipment, an alteration to the office premises, an alteration of job duties or an alteration of work schedules. Each situation must be examined on its own facts, having regard to the specific complexities of the workplace and the specific needs of the employees.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today