Duty to accommodate
The obligation under human rights legislation to adjust a rule, standard or practice so that it does not discriminate on a protected ground, up to the point of undue hardship.
In British Columbia it arises under the Human Rights Code, which covers employment at section 13 and services customarily available to the public at section 8. Education is a service under section 8, the provision at issue in Moore. The Supreme Court has described accommodation as a multi-party inquiry in which the person requesting it, the employer or institution, and any union each carry responsibilities.
See alsoUndue hardshipProcedural and substantive dutyAccommodationMeiorin test
SourceHuman Rights Code (BC), RSBC 1996, c 210; Renaud, [1992] 2 SCR 970; Moore, 2012 SCC 61.
Procedural and substantive duty
Two components of the duty to accommodate. The substantive duty concerns the outcome: whether a workable accommodation was provided. The procedural duty concerns the process: whether the individual's circumstances were investigated and options canvassed before a conclusion was reached.
An institution can fail the procedural duty in a case where no accommodation would have been possible, because reaching a conclusion without inquiry is itself a breach.
See alsoDuty to accommodateUndue hardshipInteractive process
SourceMeiorin, [1999] 3 SCR 3; Renaud, [1992] 2 SCR 970.
Undue hardship
The threshold at which the duty to accommodate ends. It is distinct from inconvenience, expense or difficulty.
In Renaud, Sopinka J stated that the word undue implies that some hardship is acceptable, and that only undue hardship satisfies the test. The factors identified in Central Alberta Dairy Pool include financial cost, interchangeability of workforce and facilities, and effects on the rights of other employees. Meiorin sets out further lines of inquiry, including whether alternative approaches were investigated and whether the standard could be made less discriminatory while still serving its purpose.
Hardship is established on evidence rather than on impression or anecdote, and cost is assessed against the resources of the organisation as a whole.
See alsoDuty to accommodateMeiorin testBona fide occupational requirement
SourceRenaud, [1992] 2 SCR 970; Central Alberta Dairy Pool, [1990] 2 SCR 489; Meiorin, [1999] 3 SCR 3.
Bona fide occupational requirement
A defence to a discrimination claim in employment. A standard that excludes a person is upheld where the employer meets the three-part test set out in Meiorin.
The corresponding defence outside employment is a bona fide and reasonable justification. Grismer confirmed that it is assessed on the same test.
See alsoMeiorin testEssential requirementUndue hardship
SourceMeiorin, [1999] 3 SCR 3; Grismer, [1999] 3 SCR 868.
Meiorin test
The unified three-part test from British Columbia (Public Service Employee Relations Commission) v BCGSEU (1999). To justify a discriminatory standard, the employer must establish that it was adopted for a purpose rationally connected to the performance of the job; that it was adopted in an honest and good faith belief that it was necessary to that purpose; and that it is reasonably necessary, which requires demonstrating that the individual cannot be accommodated without undue hardship.
The case concerned Tawney Meiorin, a forest firefighter dismissed for failing an aerobic standard that disproportionately excluded women. The decision replaced the earlier distinction between direct and adverse effect discrimination with a single analysis; McLachlin J observed that maintaining the distinction could serve to legitimise systemic discrimination. Grismer extended the test beyond employment later the same year.
See alsoBona fide occupational requirementUndue hardshipAdverse effect discriminationEssential requirement
SourceMeiorin, [1999] 3 SCR 3; Grismer, [1999] 3 SCR 868.
Adverse effect discrimination
Discrimination produced by a rule that is neutral on its face and excludes a protected group in operation.
Since Meiorin the analysis no longer turns on whether discrimination is direct or adverse in form. McLachlin J noted that few rules are framed in overtly discriminatory terms, so the question is generally whether the claimant suffered an adverse effect.
See alsoMeiorin testBarrierConstruct-irrelevant variance
SourceMeiorin, [1999] 3 SCR 3; Moore, 2012 SCC 61.
Essential requirement
What a course, program or credential requires a learner to demonstrate, stated in advance and independently of any particular means of demonstrating it.
The operative distinction is between a competency and its customary mode of expression. Where the outcome is the analysis of a text, reading it in print is a method. Where the outcome is the performance of a clinical procedure, the mode may itself form part of the requirement.
Requirements articulated only after a request has been received are difficult to sustain under the first two steps of the Meiorin test, which ask whether the standard was adopted for a legitimate purpose and in good faith.
See alsoBona fide occupational requirementMeiorin testConstructModification
SourceMeiorin, [1999] 3 SCR 3; AERA, APA & NCME (2014); Moore, 2012 SCC 61.
Accommodation
An adjustment to a rule, practice, environment or format that removes a barrier for an individual while leaving the essential requirement intact.
Universal design reduces the frequency with which accommodation is required. It does not displace the legal duty, since no design anticipates every individual.
See alsoModificationDuty to accommodateUniversal Design for LearningEssential requirement
SourceHuman Rights Code (BC), RSBC 1996, c 210; Renaud, [1992] 2 SCR 970.
Modification
A change that alters what is taught or assessed, rather than how a learner reaches or demonstrates it.
The boundary between accommodation and modification follows the boundary around essential requirements, and cannot be located until those requirements are articulated. In institutional practice the determination rests with accessibility advisors, accommodation offices and academic decision-makers.
See alsoAccommodationEssential requirementConstruct
SourceAERA, APA & NCME (2014).
Functional limitation
A description of what a person can and cannot do in a given context, expressed in terms of function rather than diagnosis. Difficulty sustaining attention for ninety minutes is a functional description; a diagnostic label is not.
Accommodation reasoning proceeds from function. A diagnosis is generally not the information an institution requires, and the same diagnosis produces different functional profiles in different people.
See alsoICFDisclosureInteractive process
SourceWHO, ICF (2001).
Interactive process
The exchange in which an institution and an individual identify a barrier, canvass possible adjustments and settle on one.
The procedural duty is substantially a duty to conduct this exchange. Omitting it constitutes a breach distinct from failing to provide an accommodation.
See alsoProcedural and substantive dutyDuty to accommodateFunctional limitation
SourceRenaud, [1992] 2 SCR 970; Meiorin, [1999] 3 SCR 3.
Disclosure
Informing an institution of a disability in order to obtain access. Most accommodation systems require it.
Disclosure carries costs that the requesting system does not measure: stigma, loss of privacy, and repeated explanation. Erving Goffman's account of stigma management describes the reasoning behind non-disclosure. Design that reduces the frequency with which disclosure is necessary reduces those costs.
See alsoAccommodationUniversal Design for LearningFunctional limitation
SourceGoffman (1963); Dolmage (2017).