The Canadian Human Rights Commission defines discrimination as an action or a decision that treats a person or a group differently, whether it is intentional or not, based on one of the prohibited grounds found in section 3 of the Canadian Human Rights Act ("CHRC"):
The duty to accommodate is a statutory obligation imposed on the employer to adjust working conditions so that employees identified in one or more of the prohibited grounds under the CHRA can continue working. The statutory duty to accommodate is required to the point of undue hardship. This means that the most appropriate, i.e. reasonable, accommodation must be determined and implemented to the point of undue hardship.
An accommodation is an exemption or a modification to an employment practice or policy that allows the employee to fulfill the essential duties of his or her position and retain his employment.
The types of accommodation one might be entitled to are not prescribed within the CHRA. Every case must be looked at on an individual basis in order to assess which remedy would help rectify the negative impact brought on by the applicable employment practice or policy.
The essential duties of your position, also known as Bona Fide Occupational Requirements (BFOR), are the main tasks that are required of you in your job. They are crucial and central to your job. They are not mere preferences, but rather indispensable requirements that must be performed.
The Meiorin* decision sets out the steps to establish what tasks should be considered BFORs:
Along with the employer's duty to accommodate comes the employee's corresponding duty to participate in his or her own accommodation. It is important to note that an employee is not entitled to insist on his or her ideal or preferred accommodation.
In 1999, the Supreme Court of Canada case Meiorin adopted a new standard unified approach to ensure a discrimination-free workplace.
The court clearly imposes a duty on the employer to make every reasonable effort, short of undue hardship, to accommodate workers and to proactively eliminate any employment policy or practices that may discriminate against individuals or groups of individuals based on the grounds enumerated in the CHRA.
No, the employer is not entitled to know your diagnosis but it is entitled to receive sufficient information to address the situation properly. Only the information necessary for determining the appropriate form of accommodation has to be shared.
As an employee, you are responsible for ensuring that your employer gets the list of functional limitations your treating physician has set out, having regard to your existing job requirements.
Yes. Although most of the accommodation requests in the employment context are disability-related, the duty to accommodate extends to all grounds enumerated by section 3 of the CHRA.
Although the employer has a positive obligation stemming from the current human rights legislative scheme in Canada, the employee also has obligations that must be met in order to benefit from an accommodation request.
In the context of the duty to accommodate, a union cannot cause or contribute to a discriminatory practice or impede the employer's accommodation attempts. Although the employer remains primarily responsible for ensuring the accommodation needs of the employee, the union must work with the employer to help find a proper and agreeable accommodation solution.