In Nova Scotia, the Human Rights Commission offers a clear explanation as to why accommodation is required in the workplace: “Employers must not discriminate against employees based on protected characteristics, such as having a disability or because of a person’s gender…” the explanation continues to point out that “employers must do what is reasonable to allow a person to get, or keep, a job.”
The duty to accommodate cannot be found in the Human Rights Act, or any other legislation for that matter. Rather it is considered an employer’s obligation which is triggered either: (A) once an employee speaks up and discloses that they have a protected characteristic, or (B) when the characteristic is apparent or ought to be apparent.
When we think about the duty to accommodate most often we think of disability and physical accommodations. In fact, accommodations could be required for any of the 16 protected characteristics: age, race, colour, religion, creed, ethnic, national or aboriginal origin, sex (including pregnancy and pay equity), sexual orientation, physical disability, mental disability, family status, marital status, source of income, irrational fear of contracting an illness or disease, association with protected groups or individuals, political belief, affiliation or activity. See workplace accommodations for a few detailed comments.
In our experience we have found that the need for accommodations is an uncomfortable exercise for employers. Employers should understand that accommodations should be treated as any other business transaction. To be clear, an employer would have to prove a form of “undue hardship” to avoid an accommodation, which by the way has rarely been proven in Canada.
Accommodations can be surprisingly far reaching! For example, if application and hiring process discriminates against a class of candidates hiring processes should be revised to accommodate the likely hiring of that discriminated against group, all other things being equal eg: skills. Best practices have shown that employers should have good policy around accommodations, return to work plans and a company culture that identifies with accommodations across all of their HR and other systems to avoid any systemic discrimination and harassment.
Let us know, do you currently have best practices in place for your workplace accommodations?
Angela O’Connell, Senior Consultant