Duty to Accommodate, Reasonable Accommodation, Undue Hardship and Bona Fide Occupational Requirements
Our discussion in this Article involves non-unionized workplaces and accepts that stuttering is a disability.
There are many ways in which workplace standards (which include policies, procedures, or rules) can create or contribute to discrimination. Legislation and case law have evolved to recognize a Duty to Accommodate (DTA) on employers to adjust, alter, change, modify, and/or tailor workplace standards to allow employees to participate in the workplace by eliminating the discriminatory effects of those standards.
The DTA is rooted in respect for the employee’s dignity, individualization (consideration of their unique circumstances) and the objective of integration and full participation in the workplace. Both the employee and their employer have roles and responsibilities in the process, including good faith.
Duty to Accommodate & Employees
The DTA is generally triggered when an employee requests accommodation. I say generally because there are instances where an employer should ask, or ought to know to ask, the employee if they required accommodation. This is the “Duty to Inquire.” The severity of a Person Who Stutters’ disfluency may trigger the Duty to Inquire.
Ideally, and from the perspective of a person who requested accommodation in the past, an employee would inform their employer that they require accommodation, their employer would ask the employee what accommodation(s) they want, and then implement them. However, as a former management-side human resources practitioner, I can share with you that the DTA is not always so straight forward or one-sided. For employees, cooperating fully in accommodation process means finding a workable solution (not a perfect solution or one that they want or prefer).
Employees can be required to provide their employer with evidence of their disfluency, usually from a medical doctor or speech language pathologist. This is not necessarily a one-time requirement either. Your employer can ask for updated medical information, within reason.
Employees must also be prepared to accept reasonable accommodation. The work assigned must be meaningful, productive, and have value to both parties. This means, in part, employees must be open to alternative suggestions that meet their needs and be flexible when considering proposals that effectively respond to their needs.
Duty to Accommodate & Employers
Employers must accept that they have a legal duty to accommodate up to the point of undue hardship. This is important because accommodation often involves or creates some element of hardship. It is not a net zero or neutral exercise. If an employer is going refuse an accommodation on the grounds of undue hardship, it needs clear and cogent evidence to justify their position. Subjective conclusions are not proof of undue hardship. Employers need to consider customizing working conditions (e.g., using adaptive technology) to meet an individual’s specific needs and consider what is possible within the employee’s job and the workplace (e.g., bundling or changing an employee’s job tasks). Employers need to address each accommodation request on a case-by-case basis. I always recommend that accommodations be captured or codified in Accommodation Plans (but that’s a topic for a future article).
Reasonable Accommodation
Accommodation should be handled with both parties’ full participation in the identification of requirements and finding alternatives and solutions. Reasonable accommodation could warrant a separate article, it is that important, and often at times, complex.
For this Article, per the DTA, it is important to note that an employee is entitled to reasonable accommodation. Below are a few principles about reasonable accommodation from case law:
- It is not perfect accommodation, nor it is necessarily what an employee prefers, expects, or demands.
- It is not necessarily instantaneous nor indefinite.
- It can evolve depending on changes to a person’s job.
- It can evolve depending on changes to the nature and extent of a person’s disfluency.
- There is a “trial and errors” or “try and see” element whereby the parties may try an accommodation, observe its effectiveness (or ineffectiveness), and depending on the result, pursue other accommodations.
- Employees need to appreciate that by refusing reasonable accommodation to meet their unique need, they can be found to have “frustrated” the accommodation process.
Reasonable accommodation is very much a factual and contextual exercise. It depends on the nature of a Person Who Stutters’ disfluency, their job, and nature of the workplace. In most cases, your employer will be in the best position to know what accommodation options are possible in their workplace. Both parties need to approach the topic of determining reasonable accommodation in good faith and remain open-minded to all the available options.
When asking for accommodations or a particular accommodation it is always a good idea to use your job description (which hopefully your employer provided to you) as a road map. I always advise that the parties meet at scheduled intervals to review the accommodations and discuss any concerns or need for changes.
Undue Hardship
For all its benefits, it is important to be aware that the DTA is not absolute. It requires employers to implement, and employees to accept, reasonable accommodation(s) up to the point of undue hardship. Undue hardship describes the limit of an employer's obligation to accommodate an employee. Undue hardship is unique and there is no fixed point for it. It depends on a matrix of considerations, such as the size of the employer, work location, type of work or industry, the employee’s limitations, accommodations being offered or requested by the employee, and should be assessed individually.
An employer will have reached undue hardship when reasonable measures of accommodation are exhausted and only unreasonable or impracticable options remain. Case law suggests that undue hardship is reached when factors such as safety, health or cost make the employer's burden in accommodating an employee too high. Health and safety risks includes the risk to the person requesting the accommodation as well as other employees or customers. Cost considerations include any reasonably expected financial costs associated with the accommodation in addition to any outside sources of funding that may be available. An employer can not claim undue hardship just because an accommodation request would be “expensive”. To claim that an accommodation would impose undue hardship, the employer needs to prove that the cost, or health and safety risk, is so extreme it would seriously interfere with running the business.
Employers are expected to exhaust all reasonable possibilities for accommodation and demonstrate that they have followed an accommodation process before they can claim undue hardship. Some human rights legislation limits what factors may be considered as part of the undue hardship analysis to the cost and health and safety risks. In those instances, factors such as undue business inconvenience, resentment or hostility from other co-workers, the operation of collective agreements or customer preferences may not be considered.
Bona Fide Occupational Requirements (“BFOR”) & Meiorin*
*British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC)
In some instances, a BFOR may prevent accommodation by causing undue hardship. A BFOR is a standard or rule that is integral to carrying out the functions of a specific position. For a standard to be considered a BFOR, an employer must establish that any accommodation or changes to the standard would create undue hardship.
Recall in my August 2024 article, I cited the Moore Test for discrimination and noted that there are instances where discrimination is legally justified: if the requirement, qualification, or factor at issue is reasonable and bona fide in the circumstances. The Supreme Court of Canada’s decision in Meiorin provides a 3-part test to be applied to determine whether an employer has established (on a balance of probabilities) that a discriminatory standard is a BFOR, or justified a prima facie discriminatory workplace requirement, qualification, or factor.
Under the Meiorin test, the standard will be upheld if the employer establishes that
- Rational Connection: Was the requirement adopted for a purpose rationally connected to the performance of the job?;
- Good Faith: Did the employer adopt the requirement in an honest and good-faith belief that it was necessary to the fulfillment of a legitimate work-related purpose? and
- Reasonable Necessity: Is the requirement reasonably necessary to the accomplishment of that legitimate work-related purpose? To prove reasonable necessity, it must be shown that it is impossible to accommodate the claimant and others sharing his or her characteristics without imposing undue hardship on the employer.
Unfortunately, there are some jobs where a Person Who Stutters cannot be accommodated because the requirement to speak fluently is a BFOR. Good news is that positions where absolute fluent communication are BFOR are limited.
I hope you found this article helpful. The DTA, accommodation and its limits are complex but important topics. My goal was to provide a high overview of the topics and how they apply to PWS. If there a particular employment topic or issue that you would like me to address in a future article, let me know! You can reach me at: mathew.yaworski@stutter.ca All correspondence will be treated as confidential.
Disclaimer: The opinions and statements in this article are solely the author’s and do not represent the Government of Canada or the Department of Justice Canada. Nothing in this article should be construed or relied upon as legal advice or opinion.