The Duty to Accommodate in the Labour/Employment Context: Western Canada 2009 (Rev 6)

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This paper examines the law pertaining to the duty to accommodate as it has developed in Canada’s four western provinces to December 2009. In order to understand the duty to accommodate, one must understand where it is situated as an element within the broader human rights law of discrimination. Part II of this paper provides a general overview of the law of discrimination in the employment context, and the defence of bona fide occupational requirement (also known as bona fide occupational qualification) (“BFOR/BFOQ”) within which the duty to accommodate is found. Part III points out that both employers and trade unions may be found to have discriminated on prohibited grounds, and may have resort to the BFOR/BFOQ defence to avoid liability; thus both employers and trade unions may be called upon to accommodate a person (usually an employee or member respectively) to the point of undue hardship. It also addresses the claimant’s duty to facilitate his or her own accommodation. Part IV examines at what point the duty to accommodate may arise—when an accommodation is requested, or when implementing work rules or policies, whether unilaterally-imposed by employers or agreed-to by trade unions. Part V looks at the factors addressed in determining whether a particular standard is reasonably necessary for the employer to accomplish its purpose, as related to the BFOR/BFOQ defence. Part VI examines the factors addressed in determining at what point an accommodation may become an undue hardship to the employer and/or trade union, thus discharging them from the duty to accommodate. Part VII brings the reader’s attention to some emerging and changing areas of the law of accommodation. Part VIII brings the reader’s attention to recent judicial jurisprudence on the duty to accommodate in western Canada. Part IX Concludes the paper stating that the law of discrimination and accommodation is far from settled in Canada, and that interesting and exciting cases are presently wending their way through the courts and administrative tribunals of western Canada.

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