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The duty
to accommodate refers to the obligation of an employer, service
provider, or union to take steps to eliminate
disadvantage to employees, prospective employees or clients resulting
from a rule, practice, or physical barrier that has or may have
an adverse impact on individuals or groups protected under the
Ontario Human Rights Code (the “Code”), or identified
as a designated group under the Employment Equity Act (women,
visible minorities, Aboriginal peoples or persons with disabilities).
The duty to accommodate recognizes that true equality means respect
for people’s different needs. Needs that must be accommodated
result from factors related to disability, sex, age, family status,
ethnic or national origin, and religious belief. Accommodation
helps ensure that the opportunities of all individuals are not
limited for discriminatory reasons. The Supreme Court of Canada
has stated that employers and others who set standards must build
conceptions of equality into the workplace. However, the courts
have also recognized that the duty to accommodate is not open-ended.
It may not be required if it can be shown that providing accommodation
would cause “undue hardship” to the organization.
Western is
proud of the diversity of its workforce, recognizes the value
and dignity of each individual and is committed to
ensuring that all employees are able to effectively and efficiently
use their skills and experience to contribute to the organization's
performance, production and service delivery. Pursuant to its
Employment Equity Policy (Manual
of Administrative Policies and Procedures - see Section 3.2),
Western has committed itself to ensuring that each individual
will have
genuine, open and unhindered access
to employment opportunities, free from systemic or other barriers.
Definitions:
"Disability"
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Human
Resource Development Canada defines a disability as “a functional limitation or restriction
of an individual’s ability to perform an activity”;
in addition, the Supreme Court of Canada has made it clear
that “disability” must be interpreted to include
a subjective component as well, as discrimination may be
based as much on perceptions, myths and stereotypes as on
the existence of actual functional limitations. |
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"Undue hardship"
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The employer bears the burden of proving that the accommodation
of an employee would result in undue hardship. Under the
Human Rights Code only three conditions will be assessed
in deciding whether the employer has met the burden, namely:
1) cost; 2) outside sources of funding if needed; and 3)
health and safety requirements, if needed. |
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"Accommodation"
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Refers to the
design and adaptation of the work environment to the needs
of as many types of persons as possible and,
according to the Supreme Court of Canada, refers to what
is required in the circumstances of each case to avoid discrimination. |
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"Constructive discrimination"
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An individual’s
rights are infringed where a requirement or qualification
exists that, while not discrimination under
the Code on its own, results in the exclusion or preference
of a group of individuals who are identified by a prohibited
ground under the Code. However, it is not constructive discrimination
if the requirement or qualification is reasonable and bona
fide in the circumstances and cannot be accommodated short
of undue hardship. For example, a requirement that all employees
work on Friday evenings appears neutral on its face, but
could result in the exclusion from that workplace of all
individuals whose religion requires them to observe Sabbath
from sundown on Friday to sundown on Saturday. |
Western recognizes the following
general principles in its duty to accommodate:
- Respect for the dignity of each individual in accommodating
his or her needs
- Individual consultation, as each person has unique
needs which must be understood to be accommodated
- Integration and participation for persons with
disabilities
- Design by inclusion, meaning up front barrier-free
design wherever possible to fully integrate persons with disabilities
- Removal of other barriers beyond the physical
ones, including attitudinal and systemic
Western is committed to ensuring that the following activities
are reviewed to remove any discriminatory effect:
- all employment-related policies including recruitment, selection,
training,
promotion, retention and alternative work;
- purchase and management of information technology systems;
- purchase and management of communications systems;
- development and management of information services; and
- purchase of internal fittings (chairs, desks, lights,
carpets, etc.).
The University will take all reasonable steps to ensure accommodation
specific to an individual's needs is provided in a timely and
effective way. All partners are accountable for return to work
programs lead by Rehabilitation
Services with support from Human
Resource Consultants.
Western is responsible
for advising employees about their right to accommodation.
Upon request, the University will assist the
employee in identifying the most suitable means of accommodation.
In consultation with the individual employee, Western will accept
and act on a request for accommodation made by a third party
(family member, caregiver, trade union or bargaining agent, advocate
or other representative). Such a request will not be accepted
without the consent of the employee. Note that overall responsibility
and cost for implementing this guideline rests with the Dean
or Budget Unit Head. Any concerns regarding the implementation
should be brought forward to the respective Vice-President. Equity & Human
Rights Services is an available resource for employees requiring
accommodation in implementing or following this guideline. Equity & Human
Rights Services is responsible for facilitating the implementation
of Western’s Employment Equity Policy, as well as the various
policies regarding discrimination and harassment on campus.
If an employee
requires workplace accommodation for medical reasons Rehabilitation
Services offers the Transitional
Accommodation Program  .
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