10. Other limits on the duty to accommodate

10.1 Failing to participate in the accommodation process

Everyone involved in the accommodation process has a duty to cooperate to the best of their ability. In some cases, an organization may have met its procedural and substantive duty to accommodate where the person requesting accommodation did not sufficiently take part in the process, refused or otherwise could not take part at all. While a person may ask for a certain type of accommodation, both sides should be willing to explore options that appropriately meet the person’s needs.

Before concluding that a person has failed to cooperate in the accommodation process, organizations should consider if there are any disability or other Code-related factors that may prevent the person from taking part. The organization may need to accommodate these factors as well. They should also consider whether there is a need to adjust the accommodation because it is not working.

10.2 Balancing competing rights

Generally, when a person makes an accommodation request, the organization or institution responsible for accommodation will be able to provide the accommodation without it affecting the legal rights of other people.

Sometimes, however, a request for accommodation may result in a “competing human rights” situation if the rights of another person or group are also affected.

Organizations have a legal duty to take steps to prevent and respond to situations involving competing rights. The OHRC’s Policy on competing human rights sets out a framework for dealing with competing human rights situations as well as preventing conflicts from happening.[86] Part of the analysis involves considering whether there is a legislative exemption for the situation, or whether the interference with the rights of another person or group is significant or substantial.

Example: In a case that went to the British Columbia Court of Appeal, the Vancouver Rape Relief Society decided not to train a trans woman as a volunteer because she had lived part of her life as a man. They argued the restriction was a legitimate requirement for the position because they provide services specifically to women who have experienced violence from men.

The Court discussed the impact on both sides (the volunteer and the clients) and found that while the organization had appeared to discriminate against the trans woman, an exemption in the BC Human Rights Code, which is designed to address competing rights, protected the organization from liability in this situation.[87]

Each competing rights situation must be examined and decided on its own merits giving serious consideration to the specific context. A different set of facts could mean a different outcome in another situation.

10.3 Undue hardship

Organizations have a duty to accommodate the needs of trans people and other gender non-conforming individuals, unless it would cause undue hardship.

Undue hardship is difficult to prove. The Code prescribes three factors to decide whether an accommodation would cause undue hardship:

• Cost
• Outside sources of funding, if any
• Health and safety requirements, if any.

Only these three factors can be used to assess undue hardship. The onus of proving it lies with the organization.[88] They cannot rely on impressionistic views or stereotypes,[89] anecdotal evidence or after-the-fact justifications.[90] Nor can an organization speculate as to what might or might not happen if the accommodation is provided.[91] The evidence to prove undue hardship must be real, direct, objective, and in the case of costs, quantifiable.

The cost standard is a high one.[92] An organization would need to show in an objective way that the cost of the accommodation, for example, would alter the essential nature of what it does or would substantially affect its viability. In making this assessment, organizations should consider:

• What is the size of the operation? What might prove to be a cost amounting to undue hardship for a small organization will not likely be the same for a larger organization.
• Can the costs be recovered in the normal course of operation?
• Can other divisions or departments of the organization help absorb the cost?
• Can the costs be phased in over a longer time period?
• Can the organization set aside a certain percentage of money every year in a reserve fund to be used for accommodation?

To offset costs, an organization has an obligation to consider any outside sources of funding or in-kind resources available to make the accommodation. A person seeking accommodation is also expected to take advantage of any available outside resources that could help cover expenses related to the accommodation.

Health and safety concerns will amount to undue hardship if they are shown to be real and significant. Organizations have a legal obligation to protect the health and safety
of all their employees, clients, tenants and others.[93] They should consider whether changing or waiving a health and safety requirement or providing any other type of accommodation might result in a serious health or safety risk. An organization should look at:

• The nature and severity of the risk
• The likelihood of it happening, and who might be affected
• If the risk only involves the person asking for accommodation, would they be willing to assume it?
• How does the risk compare to other risks allowed within the organization or already tolerated in society as a whole?

Organizations must try to mitigate or reduce risks where they exist. The amount of risk that exists after accommodations have been made and precautions have been taken to reduce the risk (short of undue hardship based on cost) will determine whether there is undue hardship.[94]

Example: A trans female employee makes an accommodation request for some physical changes to the washrooms as well as the corporate policy on their use. The employer denies the request, claiming undue hardship for “safety” reasons. However, it appears they are speculating and have no evidence of a real risk. Also, the employer hasn’t shown why it couldn’t deal with a safety issue even if one did come up.