Accommodation in employment.

• Author: Bowal, Peter
• Position: Employment Law

After a testy conversation with an employee about her absence and tardiness due to an alleged medical condition, the employer finds itself defending a human rights case of failing to accommodate the employee's medical condition. The employer discovers that it has a "duty to accommodate" the employee's medical condition to the point of "undue hardship".

When we think of "accommodation", we think of one of life's essentials--a place to live. Accommodation has a similar application in employment law. It is well-accepted Canadian doctrine that employers must adapt their jobs and workplaces to allow employees to thrive at work. The duty to accommodate the employee until the employer suffers undue hardship may seem to be an unnecessary and expensive obligation. Yet it is a concept founded on good faith and fair play. Payrolls are expensive and reasonable accommodation is another cost of doing business.

Bona Fide Occupational Requirement (BFOR)

An employer's duty to reasonably accommodate arises from applicable human rights legislation. Section 7 of the Alberta Human Rights, Citizenship, and Multiculturalism Act prohibits employers from discriminating in any way against any prospective or current employee "because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, sexual orientation, or family status of that person or of any other person."

This human rights legislation seeks to eliminate arbitrary decision-making and exclusion. This legislation may appear strict. Human rights legislation is generally given a broad and purposive interpretation. Exceptions are narrowly construed and discriminatory practices carefully considered. However, the law does allow the employer to discriminate if such practices are based upon a "bona fide occupational requirement" [s. 7(3)].

Some employers cannot help but discriminate on the list of prohibited grounds (above) to fill some jobs. For example, some patients in nursing homes insist on attendants of the same gender. Drivers must be able to see. A religious school might expect and ask that its teachers be adherents of that religion. Physical strength is a BFOR in firefighting. Firefighters must carry and control hoses, ladders, and remove people from burning buildings. On average, more men than women will meet the strength tests for this job.

The BFOR must be reasonable and justifiable and obviously work-related...