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A Duty to Accommodate

Definitions

So how does equity versus equality fit into disability-related rights and responsibilities? Your college/university, including practicum placements, and future employers have a responsibility to accommodate their students/employees based on a documented and disclosed disability, which is referred to as their duty to accommodate.

What does “duty to accommodate” mean?

  • Duty to accommodate refers to the obligation of an employer, service provider, or educator to treat people differently in order to eliminate different and negative treatment of individuals or groups of people.
  • Duty to accommodate also means that one or more accommodations may need to be made in order to make the situation equitable (i.e. fair for everyone). That is, if a standard practice creates a barrier for someone because of their hearing loss or disability, the practice may need to be modified for that person. For example, giving a written test to a person with limited hand function will put that person at a disadvantage. An accommodation, such as giving the person more time or delivering it orally to that individual, is required.
  • In rare cases, employers may have the ability to turn down an employee’s or student’s accommodation needs in cases of undue hardship.

What is “undue hardship”?

  • As stated above, employers are required by law to accommodate their employees, based on documented and disclosed disability, unless the accommodation would result in undue hardship.
  • Under the Canadian Human Rights Act, an employer or service provider can claim undue hardship when adjustments to a policy, practice, by law, or building would cost too much, or create risks to health and safety. There is no precise legal definition of undue hardship or a standard formula for determining undue hardship. However, the threshold to establish undue hardship is high.
  • Each situation should be viewed as unique and assessed individually.
  • It is not enough to claim undue hardship based on an assumption or opinion, or by simply saying there is some cost.
  • ***In some cases, bona fide occupational requirements may prevent accommodations, as it would cause undue hardship. A bona fide occupational requirement is a standard or rule that is integral to carrying out the tasks of a specific position (Government of Canada, 2011). For example, swimming would be considered bona fide occupational requirement for a lifeguard.
  • To prove undue hardship, evidence must be provided as to the nature and extent of the hardship.
  • Although undue hardship is not clearly defined, some factors that are relevant to constitute undue hardship include:
    • Financial cost
    • Safety concerns for others
    • Employee morale
    • Impact on collective agreement
    • Size of employer’s operations
    • Interchangeability of the work force and facilities (Lynk, 2008)

Summary

Module 2 has taught you what your rights and responsibilities are regarding accommodations. You have learned that everyone is entitled to equity, dignity and respect and that everyone is entitled to freedom from discrimination. These rights are protected by law. The access that you are looking for is equity vs. equality because equity is giving everyone what they need in order to be successful.

The process of getting accommodations may seem a bit overwhelming at this point in time. Luckily, Module 3 will guide you through the process of getting the accommodations you need at the post-secondary institution of your choice.