You can remove barriers to equality of opportunity and participation
What process to use
What to do
Guidelines on Reasonable Accommodation under The Human Rights Code (Manitoba) for employers, unions, landlords, service providers, and persons or groups with special needs
Introduction
This guide is the Manitoba Human Rights Commission’s interpretation of provisions of The Human Rights Code with respect to “reasonable accommodation.”
It informs employers, unions, landlords and service providers about their duty to reasonably accommodate special needs that are based on protected characteristics under The Code, including disability and religion. It also advises persons, and groups, who require reasonable accommodation of special needs, about protections under The Code, and how to best approach their accommodation requests.
The Code has paramount status over all other laws of the Province of Manitoba. This means, for example, that meeting building code, health and safety, employment or labour law requirements is not enough if the result still discriminates.
This guide is subject to the specific language of The Code, and to interpretations by adjudicators and the courts.
What is The Human Rights Code?
The Human Rights Code (“The Code”) is Manitoba’s provincial human rights law and is administered by The Manitoba Human Rights Commission. It protects individuals and groups in Manitoba from discrimination.
Protected Characteristics
The Code prohibits discrimination based on the following characteristics:
• ancestry
• nationality
• ethnic origin
• religion
• age
• sex (including pregnancy)
• gender-determined characteristics
• sexual orientation
• marital or family status
• source of income
• political belief
• physical or mental disability
Protected Activities
Protection from discrimination extends to:
• any aspect of employment
• services available to the public or section of the public
• contracts
• rental of premises
• purchase of real property
• signs and statements
What is “discrimination” under The Code?
Different treatment based on a characteristic
Failure to reasonably accommodate
The Code prohibits unreasonable discrimination, whether or not that discrimination is intentional. Discrimination often involves treating someone differently on the basis of a protected characteristic, such as ancestry. Failure to reasonably accommodate a special need based on a protected characteristic is also discriminatory.
Discrimination has the effect of denying equality of opportunity to a person or group on the basis of a protected characteristic. It may impose burdens or disadvantages on individuals or groups, which are not imposed upon others, or limit access to opportunities, benefits and advantages that are available to others.
Discrimination often offends the individual worth and dignity of a person. It may be based on stereotypes or have the effect of promoting the view that the person or group is less capable or worthy of recognition or value as a member of society.
When determining whether unreasonable discrimination has taken place, the Commission will consider all of these factors within the broad purposes of The Code.
What is “reasonable” accommodation?
Adequate process
Sufficient effort and measures
Reasonable accommodation often involves a simple and inexpensive change to how something is typically done, which takes into account a need a person or group has that is based on a protected characteristic. An example is an employer allowing an employee to take a day’s leave to observe a religious holiday.
Reasonable accommodation results in greater equality of opportunity and participation in employment, services and housing of persons with special needs based on protected characteristics.
An accommodation is “reasonable” when there is an adequate process of accommodation, and the effort and measures taken are sufficient. A person who believes that an employer, landlord, service provider or other responsible party hasn’t taken reasonable steps to accommodate a special need could complain to The Manitoba Human Rights Commission. In deciding whether reasonable accommodation has been made, the Commission will look at both the process used to accommodate a special need as well as any resulting accommodation.
Where to start
A good place for an employer, landlord or service provider to start in responding to an accommodation request is with the person or group requiring accommodation. Ask what the need is and how it can best be met. Good communication, flexibility and co-operation between the person needing accommodation and the party responsible for providing it will lead to reasonable accommodation. The facts of each situation and the specific needs of the individual or group who requires the accommodation must be considered.
What to do
Employers, landlords, unions and others responsible for an activity must take substantial and meaningful measures of accommodation to eliminate or reduce the discrimination. As far as reasonable, the accommodation must also be provided in a manner that is most respectful of the dignity of the person or group requiring it. In this way, discriminatory barriers to full participation by that person or group can be eliminated - often to the benefit of many.
What limits the requirement of accommodation?
Undue hardship
The duty to reasonably accommodate special needs is often described in human rights law as “accommodation short of undue hardship”. The obligation to accommodate a special need is met when the hardship of accommodation becomes undue or unreasonable. “Undue hardship” is not defined in The Code, however case law has established that it is more than minimal hardship.
Factors to consider
In determining whether reasonable accommodation to the point of undue hardship has been made, the Commission will consider a number of factors. Among these factors are:
• financial costs of accommodation
• business efficacy
• health and safety concerns
• interchangeability of employees and facilities
• disruption to collective agreements
• impact on employees and service users
• impact on other protected rights
• benefit of the accommodation
Financial costs of an accommodation will be considered in the context of the nature, size and scope of a business or undertaking.
Accommodations that result in violations of protected rights of other employees, customers or tenants will be considered unreasonable. Customer or employee-preferences that are based on prejudice linked to race, sex, sexual orientation or another protected characteristic will not form any part of a consideration of the impact on others.
The Commission will also look at the benefit of accommodation in furthering equality relative to the degree of hardship, which would be assumed by the party responsible for accommodation. If a substantial measure of accommodation yields little benefit towards equality, it may be unreasonable. Where the ideal accommodation would result in undue hardship, other more readily achievable alternatives must be explored.
Reasonable accommodation depends on the circumstances. In most cases, accommodation is simple and affordable. With flexibility and good communication, accommodation solutions are usually possible.
Developing good workplace and business policies and procedures, which address the requirements of The Code, including the duty to reasonably accommodate, can also help avoid liability. Educating managers, employees and union and housing representatives on the principles and standards of reasonable accommodation will encourage reasonable responses to accommodation requests.
What about a reasonable occupational qualification for employment?
Apply the three-step test
The Code prohibits discrimination in employment unless the discrimination is based upon bona fide (“in good faith”) and reasonable requirements or qualifications for the employment or occupation.
The Supreme Court of Canada has set out a three-step test to assess whether an employer has established that, on a balance of probabilities, a standard that discriminates on its face is a bona fide and reasonable occupational requirement. The employer must show that:
1) it adopted the standard for a purpose rationally connected to the performance of the job;
2) it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
3) the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.
To establish that a standard is reasonably necessary to the accomplishment of a legitimate work-related purpose (step 3 above) an employer must show that it is impossible to accommodate individual employees with the characteristic of the complainant, without imposing undue hardship upon the employer.
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, and in signs and statements even where discrimination is based on bona fide (“in good faith”) and reasonable cause.
In determining whether bona fide and reasonable cause exists, the Commission will follow the approach set out by the Supreme Court of Canada. Essentially, the approach set out in the previous section on reasonable occupational qualifications for employment is modified to apply to services and housing.
What can I do if I require reasonable accommodation of a special need, which is based on a protected characteristic?
• Explain what your needs are.*
• Be willing to provide reasonable verification of the special need, which is based on a protected characteristic.
• Be willing to suggest accommodations that will meet your needs.
• Be prepared to accept an offer of reasonable accommodation, even if it isn’t the solution you most prefer.
• Participate in whatever accommodation you agree to.
*Please note that if a need for reasonable accommodation of a protected characteristic is reasonably evident, the duty to reasonably accommodate may apply even where a specific request for accommodation is not made.
Examples of accommodation
• A condominium owner 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 and informs her that if she is having a problem, such as a drug dependency, the employer is willing to reasonably accommodate through permitting a period of sick leave for attendance at a rehabilitation program or other treatment. The employee denies that there is any need for accommodation. The supervisor informs the employee 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 let go unless her performance improves. Accommodation is again offered and refused. The performance problems continue, and her employment is terminated.
• 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 staying 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 better provide for his health needs. He supports this request with a note from his doctor. The employer keeps the information confidential and makes any necessary schedule adjustments. A month later, the employer confirms that the accommodation is working.
• An employee asks her employer to reassign some non-essential duties, which conflict with her religious beliefs. She provides a letter from her Pastor that sets out the religious requirement. The employer allows for the reassignment of the non-essential duties. The trade union agrees to the proposed arrangement, after establishing that the impact on other members will not pose an 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.
• A school accommodates a learning disabled student by assigning a teacher’s aide to provide direct assistance to the child in the classroom.
Who can I call?
For further information, contact The Manitoba Human Rights Commission office in your area. Please ask about our seminars on reasonable accommodation and other human rights topics.
Winnipeg: 7th Floor - 175 Hargrave Street
Winnipeg, MB R3C 3R8
Phone: (204) 945-3007
Fax: 204-945-1292
Brandon: 340 Ninth Street
Brandon, MB R7A 6C2
Phone: (204) 726-6261
Fax: 204-726-6035
The Pas: 2nd Floor - Otineka Mall
P.O. Box 2550
The Pas, MB R9A 1M4
Phone: (204) 627-8270
Fax: 204-623-5404
TOLL FREE: 1-888-884-8681
TTY: 1-888-897-2811
This information available at or through this web site is subject to copyright and disclaimer notices.
Click here to review this important information before relying on or using any such information.
The Manitoba Human Rights Commission