In human rights terms, accommodation is the word used to describe the duties of an employer, service provider or landlord to give equal access to people who are protected by Ontario’s Human Rights Code (Code). This includes, for example, people with disabilities, seniors and youth, people from racialized communities, families, single parents, recent immigrants, and all individuals identified with a ground of discrimination recognized under Ontario’s Human Rights Code.
The duty to accommodate recognizes that people have different needs and require different solutions to gain equal access to services, housing and employment. To accommodate someone means to remove the barriers which prevent people from gaining access to jobs, housing, and the use of goods, services and facilities (e.g. public transit or schools).
If you are a person who has Code-protected rights, this means that an employer, service provider or landlord has a positive duty to change the way they provide workspace, services, or housing (e.g. by making physical changes or by changing their practices or policies) to make it easier or possible for you to participate in the workplace, participate in the service or facility or access housing.
What needs can be accommodated?
The duty to accommodate can arise in different situations as a result of a person’s disability, age, religion, marital status, immigration status, ethnic or racial identity or family obligations or other factors listed in the Code.
Most commonly, the duty to accommodate arises in the employment context where an employee suffers a disability such as an injury, illness or addiction that prevents him or her from continuing to do his job in the same manner as before. Even though the employee is no longer able to perform in the same way, the employer may not fire him or her without first providing reasonable opportunities for rehabilitation or alternative work.
Is accommodation the same for everyone?
No. Accommodation will be different for each person, even if they have the same disability. For example, two employees might have Multiple Sclerosis (MS). The employer can’t say, “Oh, when Mary got MS all she needed was an extra 15 minute break every day, so John’s going to get the same thing.” The nature of the accommodation required will vary according to your unique needs and these needs must be considered, assessed, and accommodated individually.
What are some examples of the duty to accommodate?
The kind of accommodation that is required will depend on the circumstances of the particular situation. Some examples of accommodation could include:
- Building a wheelchair access ramp
- Flexibility in work hours or break times
- Providing sign language interpreters for persons who are deaf so they can participate in meetings
- Job restructuring, retraining or assignment to an alternative position
- Allowing an employee to wear a hijab even though the employer wants all employees to wear the same corporate attire
- Allowing a pregnant employee to attend doctor appointments
- Allowing an employee to not work on certain holidays
How do I get the accommodation I need?
There are a number of steps you should take in order to make sure that your need for accommodation is dealt with properly. You should:
- Ask for the accommodation
- Explain why you need it (try to do this in writing)
- Provide information that is directly relevant to your needs, restrictions or limitations (this can include medical information, but only the information that is directly related to your request for accommodation)
- Participate in discussions about possible accommodation solutions
- Co-operate with any experts whose assistance is required
- Try different forms of accommodation even if it is not the perfect accommodation
If you are an employee in a union, it would be a good idea to contact your union representative. Your union will often have good advice about your employer's procedures for getting accommodation.
What should the employer, landlord or service provider do after I make my request for accommodation?
Once you make your request for accommodation, the employer, service provider or landlord should:
- Accept the accommodation request in good faith, unless there are legitimate reasons for acting otherwise
- Understand someone might not use the word “accommodation” when they are looking to be served in a way that meets their needs
- Obtain expert opinion or advice where needed
- Take an active role in exploring a range of options
- Keep a record of the accommodation request and action taken
- Maintain confidentiality
- Limit their requests for information (e.g. medical reports) to those directly related to your needs, limitations or restrictions
- Grant accommodation requests in a timely manner
- Pay for the cost of the required medical information or documentation
- If the accommodation would cause “undue hardship” (see definition below) such as extreme financial costs, explain this clearly and be prepared to demonstrate why they cannot provide the accommodation
How far does the duty to accommodate go?
The duty to accommodate is not unlimited. The limit to the duty to accommodate is called "undue hardship." An employer, landlord or service provider is not required to accommodate a person’s needs beyond the point at which the accommodation would cause “undue hardship” to the business or operation.
What does “undue hardship” mean?
The duty to accommodate under the Code places an onus on the person responsible for accommodation, for example the employer, to find a way to accommodate the special needs of the affected employee. The employer must either:
- Take all measures that can be taken without causing undue hardship to the business
- Demonstrate that it is unable to reasonably accommodate the employee’s needs without undue hardship to the business
This means that accommodation must be provided unless there would be a very serious hardship on the employer, landlord or service provider. It implies that some amount of hardship is warranted in order to provide accommodation.
For example, the employer, landlord or service provider cannot claim “undue hardship” just because building an accessible washroom would be expensive. It is expected that accommodation may require some amount of financial hardship. To claim that an accommodation expense would impose undue hardship on a business, the business operator would have to prove that the cost was so extreme it would actually interfere with running the business.
In addition, factors such as inconvenience, resentment or hostility from other co-workers, the operation of collective agreements or customer "preferences" cannot be considered in the accommodation process.
What factors will be considered if undue hardship is claimed?
If an employer, service provider or landlord is claiming undue hardship, the Tribunal will only consider whether the cost is extreme (and the employer, landlord or service provider must consider outside sources of funding) and/or significant health and safety risks.
See Ontario’s Human Rights Code, in particular sections 11(2) and 17(2). You can get a copy of the Human Rights Code at the government’s e-Laws web site.