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Understanding the Duty to Accommodate

This guide is general information only. It is not legal advice about your situation. This guide is not a substitute for a lawyer’s research, analysis and judgment. This guide is reliable as of the date of publication (May 2020). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.

  1. Introduction
  2. What is the procedural duty to accommodate?
  3. What is the substantive duty to accommodate?
  4. What type of needs can be accommodated?
  5. Is accommodation the same for everyone?
  6. What are examples of the duty to accommodate?
  7. How do I ask for accommodation?
  8. After I ask for accommodation, what should happen next?
  9. What is the duty to cooperate in the accommodation process?
  10. What if there is a dispute about my request for accommodation?
  11. Is there any limit to the duty to accommodate?
  12. What is undue hardship?

Introduction

Accommodation is a word used in human rights to describe the duties of an employer, service provider or landlord to give equal access and treatment to people who are protected by Ontario’s Human Rights Code (Code).

People who are protected by the Code include, for example, people with disabilities, seniors and youth, people from racialized communities, families, single parents, recent immigrants, and all other individuals identified by a prohibited ground of discrimination recognized under the Code.

The duty to accommodate recognizes that people have different needs and require different solutions to gain equal access and treatment in public services, housing and employment. To accommodate someone often means to remove the barriers which prevent people from having equal access to jobs, housing, and the use of services, goods and facilities (e.g. public transit, stores, or schools).

If you are a person who has Code-protected rights, the duty to accommodate means that an employer, service provider or landlord has an obligation to change the way they provide work space, services, or housing (e.g. by making physical changes or by changing their practices or policies) to make it easier or possible for a person to participate in the workplace, participate in the service or facility or access the housing.

It is well accepted in human rights law that the duty to accommodate includes both a procedural duty to accommodate and a substantive duty to accommodate. Also, accommodation under the Code only needs to be reasonable and not a perfect accommodation. Finally, the duty to accommodate is limited where there would be undue hardship on a service provider, employer or landlord to provide the requested accommodation. 

Each of these human rights law concepts about the duty to accommodate under the Code are discussed below in more detail.


What is the procedural duty to accommodate?

The procedural duty to accommodate involves obtaining all relevant information about, for example, an employee's disability in the workplace.  It requires an individualized investigation of accommodation measures and assessment of the employee’s needs. In most cases, the procedural duty to accommodate is triggered by an employee’s express request for accommodation.

Relevant information could include information about the employee's current medical condition, expectations for recovery, ability to perform their job duties and capabilities for alternate work.

An employer must seriously consider whether the employee could be accommodated short of undue hardship. A failure to give any thought or consideration to the issue of accommodation, including what steps, if any, could be taken, would be a failure to satisfy the procedural duty to accommodate.

 


What is the substantive duty to accommodate?

The substantive duty to accommodate is related to the procedural duty to accommodate. Using our employment and disability example from above, the substantive duty to accommodate concerns the reasonableness of the accommodation offered or the employer’s reasons for not providing accommodation.

Once an employer has satisfied the procedural duty to accommodate, an employer must use the information obtained to put in place reasonable accommodations, if any, that would not cause the employer any undue hardship.

 See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) for a good discussion of the duty to accommodate in the workplace and the procedural and substantive parts of that duty. 


What type of needs can be accommodated?

The duty to accommodate can arise in many different situations as a result of a person’s disability, age, creed, marital status, family status, ethnic origin, race, or other prohibited grounds of discrimination listed in the Code.

Many requests for accommodation are made in the employment context due to an employee’s physical and/or mental disabilities. 

An employee, for example, may suffer a disability such as an injury, illness, or addiction that prevents them from continuing to do their job in the same manner as before.  The employer would have a duty to explore accommodation measures to enable the employee to continue to fulfill their job duties.


Is accommodation the same for everyone?

No. Accommodation will be different for each person. The nature of the accommodation both requested and required will vary according to each person’s unique needs and these needs must be considered, assessed, and accommodated individually.

This is the case even where two people may have the same disability, Multiple Sclerosis (MS), for example, and both request accommodation in the workplace.

Each employee’s disability-related needs must be assessed according to their specific situation. An employer cannot simply conclude that, “Oh, when Mary got MS all she needed was an extra fifteen (15) minute break every day, so John is going to get the same thing.”


What are examples of the duty to accommodate?

The kind of accommodation that is required will depend on the specific circumstances of your situation. Some examples of accommodation may 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 clothing;
  • Allowing a pregnant employee to attend doctor appointments; or
  • Allowing an employee to not work on certain holidays.

Again, the accommodation process is a highly individualized matter and no two (2) cases are ever exactly alike. Accommodation needs can also change over time and the duty to accommodate requires that other and different accommodations may be reasonable if a person’s needs change. 


 

How do I ask for accommodation?

There are several steps you should take in order to make sure that your need for accommodation is dealt with properly. It is very helpful if you can make your request for accommodation in writing and keep a record of the responses you get.

The following steps are recommended:

  • Ask for the accommodation and explain why you need it;
  • Provide information that is directly relevant to your needs, restrictions or limitations (this may include medical information);
  • Participate in discussions about possible accommodation solutions;
  • Co-operate with any expert whose assistance is required;
  • Consider different forms of reasonable accommodation offered even if it is not the exact accommodation you requested; and
  • If you are an employee in a union, contact your union representative to get information about your employer's accommodation procedures.

It is important to understand that your request for accommodation should be clear and detailed.  Providing enough information early in the accommodation process can help make the process move faster and more effectively. 

For example, simply telling an employer that you need to work from home on a permanent basis as a disability-related accommodation, without more, will simply lead to many questions from an employer to understand why this might be necessary in your situation. 

Take the time and make the effort to explain your disability related needs, restrictions, and limitations and, where possible, include medical information to support your request.


After I ask for accommodation, what should happen next?

Once you make your request for accommodation, an employer, service provider or landlord should take reasonable steps to respond, including:

  • Accepting the accommodation request in good faith, unless there are legitimate reasons for acting otherwise;
  • Understanding someone might not use the word “accommodation” when they are looking to be served in a way that meets their needs;
  • Obtaining expert opinion or advice where needed;
  • Taking an active role in exploring a range of reasonable options;
  • Keeping a record of the accommodation request and action taken;
  • Maintaining confidentiality;
  • Limiting requests for information (e.g. medical information) to what is relevant to your needs, limitations or restrictions; and
  • Responding to accommodation requests in a timely manner.

It is important to understand that an employer, for example, is not obliged to simply agree with your request for accommodation. Asking for accommodation is often just the first step in an accommodation process that can, depending on the circumstances, take some time to work out.

Your preferred accommodation may not always be what you will get. Other reasonable accommodation options must be considered, and if alternatives are offered, you should seriously consider them.

Simply saying that other reasonable accommodations will not work and refusing to consider them could be a problem later if you end up filing an application at the HRTO.


What is the duty to cooperate in the accommodation process?

It is often said that accommodation is a two-way street. This means that the accommodation process requires co-operation and collaboration from both sides. An employee, for example, who requests accommodation in the workplace must also cooperate in the process of fining the appropriate accommodation. .

The person requesting accommodation has obligations under the duty to accommodate. This is often called the duty to co-operate in the accommodation process. This means that the search for accommodation is an ongoing process and both parties must participate in this process in good faith, reasonably and be open and ready to seriously consider different ideas and suggestions.

This is often referred to as the “accommodation dialogue”, meaning that there is often a lot of back and forth between the parties before a reasonable accommodation may be found and applied.

For example, an employee with a disability has the obligation to disclose enough information about the disability to permit the employer to determine the appropriate accommodation. The employee should also assist in the identification and implementation of the appropriate accommodation.

If the employer proposes a reasonable course of action for the employee to try and fulfill the accommodation request, the employee has a duty to participate to the extent necessary.

A good discussion of the duty to accommodate as a multi party inquiry, including the duty to co-operate, can be found in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC).


What if there is a dispute about my request for accommodation?

Accommodation disputes are not uncommon.  This is because the accommodation process is a search for what is reasonable, and not perfect, accommodation. People can disagree about what is reasonable in the circumstances.

What may be reasonable accommodation measures are a question of fact and will vary with the circumstances of each case.

Again, it is important to keep in mind that your request for accommodation is often just the first step in a collaborative effort to come up with a reasonable solution.  This means that you need to be prepared to work with the other side in good faith and respond to questions or issues that may arise as the accommodation process takes place.


Is there a limit to the duty to accommodate?

Yes. The duty to accommodate under the Code is not unlimited. The legal limit 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 is undue hardship?

The duty to accommodate places an onus on the person responsible for accommodation, such as an employer, to find a way to accommodate the needs of the employee.

This means that an employer, landlord or service provider must provide an accommodation unless doing so cause undue hardship. This implies that some amount of hardship is acceptable when providing accommodation.

In determining whether an accommodation measure may create undue hardship, the following factors may be considered:

  • Costs: this includes any reasonably expected financial costs associated with the accommodation as well as any outside sources of funding that may be available; and
  • Health and safety risks: this includes the risk to the person requesting the accommodation as well as other employees, residents, services users and/or the general public.

An employer, landlord or service provider can not claim undue hardship just because an accommodation request, such as 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 may have to prove that the cost is so extreme it would seriously interfere with running the business.

The Code limits what factors may be considered as part of the undue hardship analysis to the cost and health and safety risks. Factors such as undue business inconvenience, resentment or hostility from other co-workers, the operation of collective agreements or customer preferences may not be considered.