The Duty to Accommodate Presentation to Accessibility Workshop

The Duty to Accommodate Presentation to Accessibility Workshop Essex County Oct. 27, 2011 Presenter Shaheen Azmi, PHD Acting Director, Policy, Education , Monitoring, and Outreach Ontario Human Rights Commission ONTARIO HUMAN RIGHTS COMMISSION

Overview Code and human rights Ø Duty to Accommodate Ø Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

The Ontario Human Rights Code Ø Ø Ø Code is the law in Ontario prohibiting discrimination and harassment Code promotes a climate of understanding and mutual respect for the dignity and worth of each person Provides for equal rights and opportunities without discrimination Aims to ensure each person feels a part of the community and able to contribute fully Quasi-constitutional Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

The Human Rights System u The Code establishes three pillars – The Ontario Human Rights Commission • Policy, education, systemic discrimination – The Ontario Human Rights Tribunal • Files complaints, mediates, adjudicates – The Human Rights Legal Support System • Free legal clinic for selected complainants Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Grounds in the Code Ø Code prohibits discrimination and harassment on the basis of certain ‘grounds’: Ø Ø Ø Ø Race Ancestry Place of origin Colour Ethnic origin Citizenship Creed Sex/Pregnancy Ontario Human Rights Commission ontarienne des droits de la personne Ø Ø Ø Ø Sexual Orientation Age Record of offences Marital status Same-sex partnership status Family status Disability Oct. 27, 2011

Social areas in the Code Ø Code prohibits discrimination and harassment in 5 ‘social areas’: § Employment § Services, Goods & Facilities § Housing § Contracts § Membership in vocational and professional associations Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Human rights complaints Complaints can be made to Ontario Human Rights Tribunal Approach is remedial and preventative: not punitive Must contains 3 key elements: Identified ground + Social area + Differential Impact Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Human rights complaints Largest area of complaints: Grounds: Disability – over 50% u Race and related grounds – about 40% Social areas: u Employment – about 80% u Services – 17% u Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Basic Principles of Human Rights Ø Ø Ø Discrimination - doesn’t have to be intentional Substantive equality: Not same treatment but equal opportunity Adverse impact: sometimes neutral rules can have an adverse impact on certain groups Inclusive design: structures and systems should be as inclusive as possible Human Rights Accommodation should be provided where barriers are presented Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Disability and Duty to Accommodate ONTARIO HUMAN RIGHTS COMMISSION

Discrimination and the Duty to Accommodate “The principle object of certain of the prohibited grounds is the elimination of discrimination resulting from the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions…. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society’s benefits and to accommodate them” SCC, Eaton v. Brant County Board of Edcuation Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Common concerns Social Areas Employment u Housing u Goods, services, facilities u Ontario Human Rights Commission ontarienne des droits de la personne All Code Grounds Creed u Sex (pregnancy) u Age u Family, marital, same-sex partnership status u Disability u Oct. 27, 2011

Definition of Disability u u u Code definition: “Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness” Case law has reframed this definition in context of disability as a social construct Location of disability is in social perceptions and stereotypes not on inherent physical or mental conditions Disability can now include: Mental, learning and developmental disabilities, workplace injuries Present, past or perceived conditions Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Achieving Integration u Inclusive u Barrier design removal u Accommodate Ontario Human Rights Commission ontarienne des droits de la personne remaining needs Oct. 27, 2011

Bona Fide Requirements Ø Bona Fide Requirements: Ø According to Meiorin Supreme Court of Canada a rule, requirement etc. which has a discriminatory effect is allowed where it can be shown to be reasonable and bona fide in the circumstances Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Bona Fide Requirements (s. 11) Standard, rule, requirement or factor: u Purpose rationally connected to function? u Adopted in good faith? u Reasonably necessary? – impossible to accommodate without undue hardship? Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Accommodation Principles u Respect for dignity u Treat people as individuals u Right to integration and full participation Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Appropriate Accommodation u The goal: appropriate accommodation not just any accommodation – Promotes three principles – Equal opportunity to attain same level of performance or enjoy same level of benefits and privileges – Proposed or adopted for purpose of achieving equal opportunity – Separate from undue hardship analysis – Continuum Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Types u Clothing u Facilities u Work times u Reassignment of non essential tasks u Supports u Devices u technology Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

The Accommodation Process “The search for accommodation is a multiparty inquiry. “ Supreme Court of Canada Central Okanagan School District v. Renaud Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Accommodation Seeker u Inform those being asked for accommodation of their needs u Co-operate in obtaining necessary information u Participate in discussions about solutions u Work with the other parties on an ongoing basis to manage the process Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Accommodation Providers u Accept accommodation requests in good faith u Request only information required to make accommodation u Obtain expert advice where necessary u Bear the cost of any required medical information or documentation Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Accommodation Providers u Maintain confidentiality of persons seeking accommodation u Take an active role in ensuring possible solutions are examined u Deal with accommodation requests in a timely way Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Unions u Take an active role as partners in the process u Share joint responsibility with employer to promote accommodation u Support accommodation measures regardless of the collective agreement Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Limits of Accommodation u Accommodation need not be provided if it causes “undue hardship” u Standard for undue hardship is a high one u Onus of proof is on the accommodation provider Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Limits of Accommodation FACTORS NOT CONSIDERED u Business inconvenience u Resentment or hostility from co-workers u Operation of collective agreements u Customer “preferences” Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Limits of Accommodation FACTORS CONSIDERED u Costs u Outside sources of funding u Health and Safety Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Costs u Quantifiable u Related to the accommodation u Look at whole organization, not just branch/unit u Altering the essential nature or affecting viability of business Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Minimizing Costs u Recover/distribute costs u Immediate versus phased-in u Reserve funds u Outside sources of funding u Creative design solutions Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Health and Safety Requirements bona fide and reasonable u Look at alternate means u Risk assessed after precautions have been taken to reduce it u Assess nature/severity/probability/scope of risk u Does risk remaining after accommodation outweigh benefits of enhancing equality? u Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Assumption of Risk An accommodation seeker may wish to take on some degree of risk: u Is person fully informed of risk? u How serious is the risk? u Is there a risk to anyone else? Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011

Commission contact Head Office: 180 Dundas St. W. 8 th flr Toronto, ON M 7 A 2 R 9 Web Site: www. ohrc. on. ca Ontario Human Rights Commission ontarienne des droits de la personne Oct. 27, 2011