This Background Paper provides an overview of the duty to accommodate – a fundamental principle of equality included in all Canadian human rights laws – and describes how that principle has been interpreted and applied in Canadian jurisprudence. The duty to accommodate is a legal obligation imposed on employers, landlords, and public and private service providers (the duty holders) to accommodate the needs of individuals with respect to prohibited grounds of discrimination, such as disability, religion, sex and gender, gender identity and expression, and family status. These duty holders must help ensure that accommodations are made so that the individuals to whom they owe this duty have equal opportunities and are free from discrimination in employment, the provision of services and housing. This could mean, for example, permitting an employee not to work on a religious holiday; creating a practical and appropriate workspace for a person with a physical disability; or ensuring that employment criteria do not discriminate unfairly based on sex or gender. Other types of accommodation could include permitting an inmate to be imprisoned with persons who share their gender identity, rather than the sex they were assigned at birth, or allowing a parent the scheduling flexibility required to attend to their family’s needs.
This obligation should not impose undue hardship on the duty holders. An accommodation is meant to achieve what is reasonable. For example, if accommodating an employee would be too costly or not practical, the employer may not be required to put in place all of the requested modifications to a job position. If an accommodation would have a negative impact on the rights of others, it may not be possible or required for the employer to proceed with it. Moreover, if an employer can show that a job position requires a certain level of fitness or ability, then the discrimination inherent in not hiring someone who does not meet the criteria may be justified (also known as a bona fide justification). The duty holder and the individual seeking an accommodation are expected to work together to find the accommodation that is most reasonable for all parties.
This Background Paper begins by reviewing the right to equality and the various human rights laws that establish the framework for the duty to accommodate. It then explores each of the prohibited grounds of discrimination in these laws (disability, religion, sex and gender, gender identity and gender expression, and family status), how they have been applied in the Canadian context, and how courts and human rights tribunals have defined the scope of the duty in different contexts.
Read the full text of the Background Paper: An Examination of the Duty to Accommodate in the Canadian Human Rights Context
Authors: Laura Barnett, Julia Nicol and Julian Walker, Library of Parliament
Revised by: Laura Barnett, Robert Mason, Julia Nicol and Julian Walker, Library of Parliament