Reasonable Accommodation

Guidelines on Reasonable Accommodation under The Human Rights Code (Manitoba)

Introduction

This guideline provides employers, unions, landlords and service providers with information about their obligation to reasonably accommodate special needs based on the characteristics protected under The Human Rights Code (“The Code”). It also helps people or groups understand their protections and how to best approach their accommodation requests.

What is The Human Rights Code?

The Code is Manitoba’s provincial human rights law and is administered by the Manitoba Human Rights Commission. The Code protects groups and individuals from unreasonable discrimination.

The Code has special status and in most cases overrides other provincial laws. Following the requirements of a building code, collective agreement or health and safety or labour law does not justify discrimination.

The Code prohibits discrimination in a number of activities, including any aspect of employment (paid and unpaid work), condominium or rental housing, contracts, and public services such as retail services, schools and hospitals. Protected grounds (referred to as “characteristics” in The Code) are:

  • Ancestry (including colour and perceived race)
  • Nationality or national origin
  • Ethnic background or origin
  • Religion or creed, or religious belief, religious association or religious activity
  • Age
  • Sex, including sex-determined characteristics, such as pregnancy
  • Gender-identity
  • Sexual orientation
  • Marital or family status
  • Source of income
  • Political belief, political association or political activity
  • Physical or mental disability
  • Social disadvantage

In addition to the above characteristics which are listed in The Code, The Code prohibits discrimination that is based on group stereotypes rather than on individual merit, such as criminal record. Disability includes a perceived disability, as well as addictions.

What is discrimination?

Discrimination means treating someone differently based on one of the protected grounds such as religion, disability or ancestry. Discrimination includes failing to reasonably accommodate the special needs of a person or group based on those grounds. It does not matter whether that discrimination is intentional or not.

Discrimination denies equality of opportunity to a person or group. It may result in unreasonable burdens or barriers or may limit access to opportunities and benefits that are available to others.

Discrimination offends the dignity of a person because it ignores the person’s individual merit. It may be based on stereotypes or generalizations about a person or have the effect of promoting the view that the person or group is less capable or worthy of recognition because they have a characteristic listed in The Code or that they are not as valued as a member of society.

What is accommodation?

Employees, renters and customers may have special needs related to a disability or some other characteristic in The Code. For example, a worker with a disability might need changes or modifications made in the workplace to enable the worker to perform his or her job duties on an equal level with co-workers.

Reasonable accommodation results in greater equality of opportunity and participation in employment, services and housing of persons with special needs based on protected grounds.

Accommodating means allowing for changes to the way things are usually done. The changes might be visible to the public, such as a landlord installing automatic doors to ensure access for a person with a physical disability or installing a ramp or elevator. The changes might also only be apparent to certain people, such as an employer allowing an employee to switch a day off to observe a religious holiday.

Not all requests for accommodation are reasonable even if they are based on a protected characteristic. A company or organization should have a policy that sets out a process for assessing whether or not a request for accommodation is possible. If it is not possible to grant the request in full, or in part, it must be shown that it would cause undue hardship to the company or organization to do so.

A person who believes that an employer, landlord, service provider, or other responsible party hasn’t taken steps to reasonably accommodate a special need could complain to The Manitoba Human Rights Commission. The Commission will decide if there is enough evidence that the person was not reasonably accommodated and will also consider evidence of undue hardship presented by the party against whom the complaint is made.

Are there limits to reasonable accommodation?

The duty to reasonably accommodate is often described in human rights law as “accommodation short of undue hardship”. The obligation to accommodate a special need based on a characteristic listed in The Code is met when it is not reasonable for the employer, service provider or others responsible to accommodate because of the hardship caused by the accommodation. “Undue hardship” is not defined in The Code, however case law has established that it is more than minimal hardship and based on actual evidence and not assumptions.

Inconvenience or some financial cost will not normally qualify as undue hardship. The following factors contribute to undue hardship:

  • health and safety risks
  • financial costs of accommodation
  • legitimate operational requirements
  • interchangeability of employees and facilities
  • disruption to collective agreements
  • impact on employees and service users
  • impact on other protected rights

Financial costs of an accommodation will also be considered in the context of the nature, size and scope of a business or organization.

Whether or not the ideal accommodation results in undue hardship, other more readily achievable alternatives must be explored. Reasonable accommodation is not always ideal.

It is important that the person requesting accommodation has a “need” that is required and not a “want.” There is also a consideration of “reasonable” v. “ideal.”

Developing good workplace and business policies and procedures that address the duty to reasonably accommodate, can also help avoid liability. Educating managers, employees and union and housing representatives will help encourage reasonable responses to accommodation requests.

Employers, landlords, unions and others responsible for looking into a request for accommodation must take meaningful steps to eliminate or reduce the discrimination and to document those steps. As far as reasonable, the accommodation must also be provided in a way that is respectful of the dignity of the person or group requiring it. In this way, discriminatory barriers to full participation can be eliminated.

Where to start?

A good place for an employer, landlord or service provider to start in responding to an accommodation request is to talk with the person or group requesting accommodation. Ask what the need is and how it can best be met. Good communication, flexibility and co-operation between the person or group requesting accommodation and the party responsible for providing it, is very important. The facts of each situation and the specific needs of the individual or group must be considered.

Reasonable accommodation depends on the circumstances. In most cases, accommodation is simple and affordable. With flexibility and good communication, accommodation solutions are usually possible.

It is not a fixed rule that an employee must advise the employer of a need for accommodation and the duty to reasonably accommodate may apply even when a specific request is not made.

Especially in the case of mental disabilities, it can often be difficult for an employee to identify and talk about their needs. If an employer has reason to question, or ought reasonably to have recognized a need for accommodation, the employer might have a duty to make appropriate inquiries of the employee.

For example, if an employer notices a significant change in an employee’s behaviour or performance, the employer should consider if the employee has an addiction or mental health condition that might be impacting them. The employer should always proceed cautiously and respectfully to make relevant inquiries to determine if there is a disability issue at the heart of the conduct that is resulting in the employee’s inability to meet the normal expectations of the workplace. If the employee denies there is anything wrong and refuses assistance, then the employer has discharged its duty to inquire as to whether there is a need for accommodation. It is recommended that the employer seek professional advice in these situations.

An employer, rental property owner or a service provider may request reasonable medical information, if the special need is disability related. The request can include the nature of the condition (but not the diagnosis) and any associated special needs.

What are reasonable requirements for a job?

In addition to addressing specific requests by employees, an employer should also ensure that there are no barriers in the selection and hiring process to individuals or groups with characteristics protected in The Code.

The Code prohibits discrimination in employment unless the discrimination is based upon reasonable requirements or qualifications for the job.

The Supreme Court of Canada has determined that for the discrimination to be based on reasonable requirements for the job, it must be shown that the requirements or qualifications that appear to impose a barrier are connected to the performance of the job and are necessary to do the job.

For example, a grocery clerk is told she must stand even though she has a disability and unable to do so for long periods of time. The question becomes, is standing a legitimate qualification for the job? A possible reasonable accommodation may be to allow her to sit from time to time.

What about reasonable accommodation in services and housing?

Use the same basic approach as in employment.

The Code states that reasonable accommodation is required in services, housing, contracts, and the purchasing of real property.

How do I request to be accommodated?

If you are requesting reasonable accommodation:

  • Explain what your needs are.
  • Be able to show how your need is based on a characteristic listed in The Code.
  • Provide information to assist in assessing what options are available to you.
  • Suggest ways in which your needs can be met. Be prepared to accept an offer of reasonable accommodation, or to at least give it a try, even if it isn’t the solution you most prefer.
  • Participate in whatever accommodation you agree to.

Examples of reasonable accommodation

  • An individual with severe allergies wishes to replace the carpet in her condominium with hardwood flooring at her own expense. As the condominium agreement sets out that the floors in question will be carpeted, she identifies her need to the condominium corporation, and provides a letter from her allergist. The information is treated confidentially, and after determining that this change would not have a significant impact on other owners, she is allowed to install the hardwood flooring.

  • An employee with a good attendance and performance history has recently been frequently late or absent, and her work performance has deteriorated. The rumour on the shop floor is that she has a drug problem.

    The line supervisor speaks to her in private about these performance concerns. She is informed that if she is having a problem, such as a drug addiction, the employer is willing to reasonably accommodate her by permitting a period of sick leave to attend a rehabilitation program or other treatment. The employee denies that there is any need for accommodation. The supervisor also informs her of the employer’s Employee Assistance Program.

    Performance problems persist. After evidence that the employee was impaired at work and that her condition led to a costly mistake, the supervisor advises the employee that she will be fired unless her performance improves. Accommodation is again offered and this time accepted. The Complainant is granted a leave of absence to attend a treatment program.

  • A season ticket holder arrives at the theatre to learn that the lobby has recently been painted. She is pregnant and concerned about the health and safety risk posed by inhaling paint fumes if she stays for that evening’s performance. At her request, the theatre agrees to exchange her tickets for another evening near the end of the play’s run.

  • An employee with diabetes requests changes to his coffee and lunch break schedule to allow him to maintain an eating schedule recommended by his doctor. He provides a note from his doctor to his employer. The employer keeps the information confidential and makes the necessary schedule adjustments.

  • An employee asks her employer to reassign some non-essential duties, which conflict with her religious beliefs. The employer allows for the reassignment of the non-essential duties and the trade union agrees to the proposed arrangement, because it does not appear that the impact on other members will cause any undue hardship.

  • A nursing mom requests that a university daycare provide access to a quiet, private space for her to nurse her child. The daycare arranges for such access.

  • An employee is unable to find evening care for a child with special needs. An employer accommodates a request to change an employee’s hours to allow for child care arrangements.

It is important that both employee and employer understand that reasonable accommodation is based on “needs” and not “wants.”

Who can I call?

For further information on these guidelines or The Human Rights Code, please contact the Manitoba Human Rights Commission in your area. This guideline and more information can be found on The Manitoba Human Rights Commission’s website. Also find out more about seminars on reasonable accommodation and other human rights topics.

Winnipeg:
7th Floor - 175 Hargrave Street
Winnipeg, MB R3C 3R8
Phone: 204-945-3007
Brandon:
Rm 341 - 340 Ninth Street
Brandon, MB R7A 6C2
Phone: 204-726-6261
The Pas:
2nd Floor - Otineka Mall
P.O. Box 2550
The Pas, MB   R9A 1M4
Phone: 204-627-8270
Toll free: 1-888-884-8681

Email: hrc@gov.mb.ca

 

www.manitobahumanrights.ca

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