Policy statement on the duty to accommodate under the Ontario Human Rights Code

The Ontario Human Rights Code (the Code) recognizes the dignity and worth of every person in Ontario. The Code provides for equal rights and opportunities, and freedom from discrimination. It applies to the areas of employment, housing, facilities and services (including education, health care, etc.), contracts, and membership in unions, trade or professional associations. It covers specific grounds, such as disability, creed, family status, sex, and gender identity.^[1]

Under the Code, employers and unions, housing providers and service providers have a legal duty to accommodate the Code-related needs of people who are adversely affected by a requirement, rule or standard. On many occasions, the Supreme Court of Canada has confirmed the duty to accommodate in the human rights context.^[2]

What is accommodation?

Accommodation means making adjustments to policies, rules, requirements and/or the built environment to ensure that people with Code-related needs have equal opportunities, access and benefits. Accommodation is necessary to address barriers in society that would otherwise prevent people from fully taking part in, and contributing to, the community.

Accommodation does not mean lowering essential qualification standards, which are the skills or attributes that one has to meet for a particular job, to graduate from a class or program, etc.

Accommodation is a shared responsibility. Everyone involved, including the person asking for accommodation, should cooperate in the process, share relevant information, and jointly explore accommodation solutions.

The Code prohibits discrimination that results from requirements, qualifications or factors that may appear neutral but that have an adverse effect on people identified by Code grounds. The Code provides for an organization to show that a requirement, qualification or factor that results in discrimination is nevertheless reasonable and bona fide (legitimate). However, to do this, the organization must show that the needs of the person cannot be accommodated without undue hardship.

Undue hardship

If an accommodation would legitimately cause an organization undue hardship, then the organization would not need to provide it. The Code sets out only three considerations when assessing whether an accommodation would cause undue hardship:

• cost
• outside sources of funding, if any
• health and safety requirements, if any.

The onus is on the organization to prove that the accommodation would cause undue hardship through evidence that is objective, real, direct and, in the case of cost, quantifiable. A mere statement, without supporting evidence, that the cost or risk is “too high” based on speculation or stereotypes will not be enough.

Example: A car dealer operates seven days a week and requires its employees to be available to work weekend hours, which are its busiest and most profitable business days. The requirement adversely affects Christian and Jewish employees with a creed that prohibits work on Sabbath days, which fall on the weekend. The business has a duty to accommodate these employees to the point of undue hardship.

Legal framework

The Supreme Court of Canada has set out a framework for examining whether the duty to accommodate has been met.^[3] If prima facie discrimination (or discrimination on its face) is found to exist, a respondent must establish on a balance of probabilities that the standard, factor, requirement or rule:

• was adopted for a purpose or goal that is rationally connected to the function being performed (such as a job, being a tenant, or taking part in a service)
• was adopted in good faith, in the belief that it is necessary to fulfil the purpose or goal, and
• is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.

As a result of this test, the rule or standard itself must be inclusive of as many people as possible and must accommodate individual differences up to the point of undue hardship. This makes sure that each person is assessed according to their own personal abilities. The ultimate issue is whether the organization or individual providing accommodation has shown that they have done so up to the point of undue hardship.

Once appropriate accommodation is received, a person must still be able to meet the essential requirements of the job, service, housing, etc. An appropriate accommodation for a student with a disability at university, for example, would enable the student to successfully meet the essential requirements of the program, with no alteration in qualification standards or outcomes, although the way that the student demonstrates mastery, knowledge and skills may be altered. 

Example: A university professor in a nursing program requires all students to demonstrate proficiency in her course by passing an in-class essay test worth 100% of the student’s final grade. The primary aim of the course is to teach students clinical evaluation methodology. A student identifies that she has a disability that makes it difficult to process large amounts of written material under strict time constraints. The university’s disability services office arranges for the student to be able to complete an independent study over the course of the semester that allows her to show mastery of the material and proficiency in the course. In this way, the university is able to provide the student with an accommodation that allows her to enjoy the same level of benefits and meet the requirements for acquiring an education, without the risk of compromising academic integrity.

The onus is on an organization to show that a person is incapable of performing the essential duties of a job, requirements of a service, housing, etc., even with accommodation. Conclusions about inability to perform essential duties or requirements must not be reached without actually testing the person’s abilities, and organizations must keep in mind that the testing format itself may need to accommodate an individual’s needs. It is not enough for an organization to assume that a person cannot perform an essential duty or requirement – there must be an objective determination of that fact.

Accommodation is essential

The Code provides for equal rights and opportunities without discrimination. Accommodation is essential if these rights are to be realized. Human rights would be functionally meaningless if the needs of Code-protected groups were not taken into account through the process of accommodation. By making adjustments to the standard way of doing things, organizations are fulfilling their legal responsibility to remove the barriers that prevent people covered by the Code from fully taking part in, and contributing to the community.