This document summarizes recent developments and limits on an employer's duty to accommodate employees based on human rights legislation. It discusses principles of accommodation, including establishing undue hardship and an employee's duty to assist. It then analyzes recent cases that set limits on accommodation, such as not requiring promotion of an unqualified employee, offering a reasonable alternative position rather than an employee's preferred role, and not accommodating when an employee fails to provide requested medical documentation. The key points are that accommodation must manage each case individually without undue hardship, employees are due reasonable but not perfect accommodation, and employees must accept reasonable options offered rather than dictate the solution.

1. You’re Asking for What!?:
Recent Developments and Limits
on the Duty to Accommodate
Wendy-Anne Berkenbosch
Dan Black
11412473.2

2. Introduction
• Most employers are well aware of the need to avoid
discrimination and to accommodate employees to the
point of undue hardship.
• This morning we will briefly discuss:
• basic principles regarding the duty to accommodate; and
• recent examples of limits on the duty to accommodate.

3. Human Rights Legislation
• The Ontario Human Rights Code provides that:
• every person has a right to equal treatment with respect
to employment without discrimination based on certain
protected grounds; and
• every person who is an employee has a right to freedom
from harassment in the workplace based on certain
protected grounds.

4. The Employer’s Duty to Accommodate
• Once the employee establishes discrimination, the onus
shifts to the employer to establish that the work rule or
standard in question is based on a bona fide
occupational requirement (BFOR).
• As we all know, in a case called Meiorin, the Supreme
Court of Canada set out a three part test for
establishing a BFOR:

5. The Employer’s Duty to Accommodate
1. the standard was adopted for a purpose rationally
connected to job performance;
2. the standard was adopted in a good faith belief that it
was necessary to fulfil a legitimate work-related
purpose; and
3. the standard is reasonably necessary to the
accomplishment of the legitimate work-related purpose
and the employee cannot be accommodated without
undue hardship.

6. Undue Hardship
• Some hardship is acceptable; it is only undue hardship
that satisfies the test.
• If the proper operation of the business is excessively
hampered or the employee is unable to work for the
reasonably foreseeable future, the standard of undue
hardship will be met (Hydro-Quebec decision).

7. The Employee’s Duty to Assist
• The employee is required to assist and actively
participate in the accommodation process.
• Generally, the employee must:
• request accommodation;
• provide reasonable information;
• undergo reasonable treatment; and
• facilitate reasonable accommodation.

8. Example 1: Dishonesty
• 20 year employee dismissed after stealing $910 and
reinstated under last chance agreement
• employee lied about having medical condition to delay
return to work – dismissed again
• union argued dishonesty was due to mental illness –
employee was “cognitively impaired”
• does the employer have to accommodate?

9. OPESU v. Ontario (Liquor Control Board) (Ont.
Grievance Settlement Board, 2011)
• no; although employee had adjustment disorder, it was
not cause of misconduct
• arbitrator accepted employer’s medical evidence that
employee not cognitively impaired
• employee had ability to choose to act otherwise
• shows importance of adequate medical evidence

10. Example 2: Inappropriate Behaviour
• employee had bipolar disorder
• employer permitted flexible hours and breaks, work
from home and restructured tasks
• during manic phase, employee became aggressive,
argumentative and disruptive
• employee placed on paid sick leave and required to
obtain treatment and assessment
• breach of duty to accommodate?

11. Yukon HRC v. Yukon (C.A., 2010)
• no; employer’s actions not based on stereotypes
• had successfully accommodated for 6 years
• employer attempting to assess whether employee’s
actions due to medical condition
• confirms general right to seek medical information

12. Example 3: Unearned Promotion
• employee suffered on the job injury; various attempts to
accommodate
• employee requested group leader position; employer
declined
• employee refused alternative position, then retired and
filed complaint
• was employer obliged to promote?

13. Ellis v. General Motors (OHRT, 2011)
• no; employer not obliged to offer undeserved promotion
• duty to accommodate does not require employer to
promote employee to position employee not otherwise
entitled to
• doing so would extend duty to accommodate beyond
ensuring equal treatment

14. Example 4: Preferred Work Location
• employee was lesbian correctional officer who refused
to conduct strip searches on female offenders
• employee wanted to be accommodated in current
position at all-female facility
• employer offered accommodation at all-male facility,
where female searches not required
• was employer’s offer reasonable?

15. OPSEU v. Ontario
(Ont. Grievance Settlement Board, 2011)
• yes; position offered was reasonable
• employee not entitled to preferred or most appropriate
accommodation
• employer not required to consider employee’s non-work
activities (union executive, committee membership) in
making accommodation decision

16. Example 5: Lack of Documentation
• teacher wanted assignment to library position and
exemption from performance review
• employer repeatedly requested up-to-date medical
documentation to support options:
• application for LTD benefits;
• employer’s RN to contact teacher’s doctor; or
• independent medical examination
• no up-to-date info, so employment terminated
• was employer’s termination unlawful?

17. Baber v. York Region District School Board
(OHRT, 2011)
• no; an employee seeking accommodation has a
reciprocal duty to co-operate
• employee must provide reasonable amount of
information about physical and/or mental work
restrictions and disability-related needs
• teacher’s failure to co-operate by providing medical
information meant no breach of duty to accommodate
by employer

18. Key Points
• The employee bears the initial burden of showing that
he or she is entitled to accommodation.
• The duty to accommodate requires employers to
individually assess and manage each employee’s
circumstances to determine if the employee can be
accommodated to the point of undue hardship.

19. Key Points
• The employee is entitled to reasonable accommodation.
• The employee is not entitled to the most appropriate or
perfect accommodation.
• The employee is not entitled to dictate the
accommodation that he or she will accept.

20. Key Points
• The employee has a duty to accept reasonable
accommodation, even if it is not the employee’s
preferred or ideal solution.
• While the cases we have discussed today are
encouraging, remember that each case turns on its own
facts and accommodation decisions should be made
very carefully.

21. Questions?