What is the Duty to Accommodate?

Prohibited Grounds of Discrimination

The Alberta Human Rights Act provides protection from discrimination in the above areas under the following grounds. Employers must accommodate employees who fall into the groups protected by the AHR up to the point of undue hardship, taking into account health, safety and cost.

Race - belonging to a group of people related by common heritage.

Religious beliefs - system of beliefs, worship and conduct (includes native spirituality).

Colour - colour of a person's skin. This includes, but is not limited to, racial slurs, jokes, stereotyping, and verbal and physical harassment.

Gender - being male, female or transgender. Also protected under gender are pregnancy and sexual harassment.

Physical disability - any degree of physical disability, deformity, malformation or disfigurement that is caused by injury, birth defect or illness. This includes, but is not limited to, epilepsy; paralysis; amputation; lack of physical coordination; visual, hearing and speech impediments; and physical reliance on a guide dog, wheelchair or other remedial appliance or device.

Mental disability - any mental disorder, developmental disorder or learning disorder regardless of the cause or duration of the disorder.

Ancestry - belonging to a group of people related by a common heritage.

Age - Age is defined in the Act as "18 years or older." Persons who are 18 years or older can make complaints on the ground of age in all of these areas:

• statements, publications, notices, signs, symbols, emblems or other representations that are published, issued or displayed before the public
• employment practices
• employment applications or advertisements
• membership in trade unions, employers' organizations or occupational associations

Place of origin - place of birth.

Marital status - the state of being married, single, widowed, divorced, separated, or living with a person in a conjugal relationship outside marriage.

Source of income - Source of income is defined in the Act as lawful source of income. The protected ground of source of income includes any income that attracts a social stigma to its recipients, for example, social assistance, disability pension, and income supplements for seniors. Income that does not result in social stigma would not be included in this ground.

Family status - being related to another person by blood, marriage or adoption.

Sexual orientation - This ground includes protection from differential treatment based on a person's actual or presumed sexual orientation, whether homosexual, heterosexual or bisexual.

Duty to Accommodate: A General Process for Managers

The duty to accommodate is not about employee preferences; it is about removing discriminatory barriers that are prohibited by the Canadian Human Rights Act.

Step 2: Gather Relevant Information and Assess Needs

All accommodation documents must be kept confidential and separate from all human resources files.

Step 3: Make an Informed Decision

Each person has unique needs. Work in partnership with the individual to find a solution.

Step 4: Implement the Decision

Accommodation is about removing barriers to enable an employee to perform and contribute fully to the organization.

You should respect the dignity and privacy of the person being accommodated. Communicate only what you need to those who need to know.

Accommodation is made on a case-by-case basis, and the process should be as uncomplicated as possible. The process should respect the dignity and privacy of the person being accommodated and must be provided on a timely basis.

Successful accommodation requires collaboration from all parties, including the employee, the employer, the employee representative, functional specialists and co-workers.

Quick Reference: To What Extent is Accommodation Required?

The Supreme Court of Canada has ruled that employers and service providers have a legal duty to take reasonable steps to accommodate individual needs to the point of undue hardship. To substantiate a claim of undue hardship, an employer or service provider must show that they would experience more than a minor inconvenience. In many cases, accommodation measures are simple and affordable and do not create undue hardship.

Undue hardship occurs if accommodation would create onerous conditions for an employer or service provider, for example, intolerable financial costs or serious disruption to business. An employer or service provider must make considerable effort to find an appropriate accommodation for an employee. Some hardship may be necessary in making an accommodation; only when there is 'undue' hardship can the employer or service provider claim that they have tried all the accommodations available.

Source: albertahumanrights.ab.ca

Quick Reference: Performance and the Duty to Accommodate

Performance problems can sometimes tell you that there may be a need to accommodate, even when the employee has not asked for an accommodation. As a manager, you are obligated in certain circumstances to initiate action to determine if an accommodation is needed, even if the employee has not asked for it. You are encouraged to consult with your organization's human resources/labour relations functional specialists for guidance. The following are some examples of signs that might require further investigation to assess whether accommodation is needed:

If you have spoken to the employee about specific behaviours and offered the option of accommodation on several occasions, and the individual does not wish to pursue the matter, remember to document the steps you took to show that you did everything you could to help the employee and that you fulfilled your obligations regarding the duty to accommodate. Be sure to advise the employee of available services, such as the Employee Assistance Program (EAP).

Example

You notice that a previously reliable employee is missing deadlines. On speaking with the employee, you have reason to suspect that stress or a mental health problem might be the cause. It is important when broaching this that the conversation is caring and compassionate, one that is genuine and opens the door to letting the employee indicate what is going on in their life. You suggest that the employee seek professional help and make sure he or she knows how to use your organization's EAP. Tell the employee that you can make adjustments to his or her schedule to accommodate any treatment that might be required. Make sure the employee understands that once he or she receives treatment, the health care provider can help by suggesting changes at work to enable the employee to better manage his or her workload. With the employee's consent, you obtain this information from the treating physician or counsellor, who recommends giving the employee more uninterrupted time at work so he or she can meet deadlines. You make this adjustment and you meet regularly with the employee to ensure that the accommodation is working.

Source: Government of Canada

Quick Reference: Accommodating People With Disabilities

Many complaints about accommodation relate to the grounds of physical and mental disability.

The Alberta Human Rights (AHR) Act says that physical disability means "any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness." Some disabilities that have been established as protected under human rights law are: epilepsy/seizures, heart attack/heart condition, cancer, severe seasonal allergies, shoulder or back injury, asthma, Crohn's disease, hypertension, hysterectomy, spinal malformation, visual acuity, colour blindness, loss of body parts such as fingers, speech impediments, arthritis, muscular atrophy, cerebral palsy, alcoholism, and drug dependence.

Common conditions such as colds and flus that do not last long and have no long-term effects are not normally considered to be physical disabilities.

Mental disabilities are defined by the AHR Act as "any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder." Some examples of mental disabilities include: dyslexia, depression, schizophrenia, obsessive compulsive disorder and panic attacks.

It is not possible to provide a complete list of conditions normally considered to be disabling under human rights law. The disabilities listed above are examples only.