When an employee has demonstrated that a particular rule or standard is discriminatory on the basis of a prohibited ground, an employer may defend that complaint by demonstrating that the standard is a bona fide occupational requirement. Part of that defence requires an employer to show that the employee could not be accommodated without suffering undue hardship – the so-called ‘duty to accommodate.’
In the 1999 Supreme Court of Canada decision in Meorin, the Chief Justice stated that when assessing whether the employer met its duty to accommodate, ‘it may often be useful as a practical matter to consider separately, first, the procedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard.’
As a result, most human rights tribunals have concluded that the duty to accommodate has both a procedural and a substantive element. In other words, an employer cannot demonstrate that a particular standard constitutes a bona fide occupational requirement unless it has first made a real effort to assess the issue of accommodation.
The Federal Court of Appeal has recently rejected that conclusion in Canada (Human Rights Commission) v. Canada (Attorney General), stating instead that the appropriateness of a standard must be assessed as a matter of substance and not procedure. In other words, an employer can do nothing and still meet its ‘duty to accommodate’ so long as it turns out that the complainant could not be accommodated without undue hardship.
The case involved an employee of the Canadian International Development Agency (‘CIDA’). The employee, who has type 1 diabetes, wanted to be a development officer but lacked field experience. During a temporary assignment to Afghanistan, she had a hypoglycemic incident, and CIDA sent her home against her will. CIDA then adopted a policy where people applying for temporary assignments in Afghanistan were required to undergo a medical assessment. The employee could not meet the medical guidelines, and could not obtain a posting.
The Canadian Human Rights Tribunal concluded it would pose an undue hardship for CIDA to accommodate the employee in Afghanistan. However, the Tribunal upheld the complaint because CIDA had not ‘met its procedural duty to accommodate the complainant’ – it had not considered all accommodative measures.
The Tribunal’s decision was overturned on judicial review, and the Federal Court of Appeal agreed that the Tribunal’s decision should be set aside. The Court concluded that the Supreme Court did not intend to create a separate procedural right to accommodation. Once the employer has demonstrated that it is impossible to accommodate an employee without undue hardship, then it has satisfied its duty to accommodate.
The procedural requirement was an important part of the duty to accommodate. It meant that an employer had to fully examine possible alternatives to a discriminatory standard with employees and unions. This in turn made it more likely that reasonable solutions would be found. Eliminating this requirement will make it more likely that employers will take their chances at a hearing instead of working diligently with employees and unions to find practical solutions to accommodate disabilities or other personal characteristics.