How did we get here? Setting the standard for the duty to accommodate.

• Author: Pothier, Dianne
• Position: UNBLJ Forum: Recent Developments in Canadian Labour and Employment Law

It has been almost a quarter of a century since the Supreme Court of Canada's decision in O'Malley incorporated the concept of the duty to accommodate into Canadian human rights law and almost a decade since that concept acquired a more prominent position in that Court's adoption of the unified test for bona fide occupational requirement (BFOR) in Meiorin. (1) Yet, I think there remains some conceptual confusion about exactly where and how the concept fits in current Canadian human rights law.

The duty to accommodate cannot be properly understood as a stand-alone concept. It should be seen as subsumed within the overarching concept of reasonable necessity as a critical part of the test for a BFOR. It is also inextricably bound up with the qualification of undue hardship. Moreover, a full appreciation of accommodation includes both individual and systemic dimensions. The duty to accommodate originated as an ad hoc notion, involving only after-the-fact tinkering. A full development of the concept of accommodation requires an appreciation of systemic aspects that have the potential for fundamental transformation of the world of work. To date, the systemic aspects of accommodation have been given only scant attention. In my assessment, as explored in this article, the lack of clarity on all of these points stems largely from the duty to accommodate concept not having fully escaped its roots.

THE ROOTS IN O'MALLEY

The duty to accommodate was incorporated into Canadian human rights law simultaneously with the recognition of adverse effects discrimination. The initial association of the duty to accommodate with adverse effects discrimination viewed accommodation as individualized and ad hoc exceptions to general rules, where the general rules were not being questioned. That was the context of O'Malley.

O'Malley involved a claim against retail chain Simpsons-Sears alleging discrimination on the basis of creed. O'Malley was required by Simpsons-Sears to revert to part-time from full-time employment as a sales clerk when her conversion to Seventh Day Adventism caused a conflict between her religious convictions and her full-time work schedule. Simpsons-Sears required all full-time sales clerks to work some Saturdays, but the tenets of Seventh Day Adventism preclude work on Saturday, its Sabbath. Simpsons-Sears continued to employ O'Malley in a part-time capacity without Saturday shifts, but refused to fashion a full-time schedule not involving Saturday work.

There were several elements of O'Malley that made it relatively easy for it to serve as a test case for the recognition of adverse effects discrimination and the concomitant duty to accommodate up to the point of undue hardship. It is clear that Simpsons-Sears acted as it did on the assumption that its only legal obligation was to avoid direct (intentional) discrimination, and that it had no duty to accommodate O'Malley's religious convictions. When the Supreme Court of Canada concluded that Simpsons-Sears was wrong in law, Simpsons-Sears bore the brunt of its mistake of law, but its liability in this respect was quite limited. Although it is certainly ironic given the recognition of the case as having significantly expanded anti-discrimination law, O'Malley was not a champion of sex equality.

Before the Board of Inquiry the complainant said she was no longer interested in full-time employment because her husband preferred that she not work full time. She, therefore, now seeks compensation only for the difference in remuneration between full-time and part-time employment lost between October 23, 1978 and July 6, 1979, the date of her marriage. (2) Accordingly, there was little pressure on the Supreme Court of Canada to let Simpsons-Sears off the hook.

The O'Malley case was also easy as a test case because the rule itself, requiring full-time sales clerks to work on Saturdays, was uncontentious, given the propensity of shoppers to shop on Saturdays. (3) The religious basis for O'Malley's claimed exception via accommodation did not undermine the logic of the rule catering to the vast majority of shoppers having no religious constraints on Saturday shopping. The innocuous nature of the general rule in O'Malley prompted Justice McIntyre to say:

Where there is adverse effect discrimination ... there is no question of justification raised because the role, if rationally connected to the employment, needs no justification; what is required is some measure of accommodation. (4) As initially conceived by the Supreme Court of Canada, the duty to accommodate was disconnected from justification of general rules. It was seen as individualized and ad hoc exceptions to generally valid rules. It was seen as minor tinkering rather than fundamental transformation.

From the start in O'Malley, the duty to accommodate was qualified by the limit of undue hardship. (5) While embracing adverse effects (unintentional) discrimination, the Court was looking for a way to contain its scope. Yet the Supreme Court of Canada was able to say very little about undue hardship in O'Malley. Simpsons-Sears could not claim it had accommodated O'Malley up to the point of undue hardship where (based on the assumption of no legal obligation) it had made absolutely no efforts at accommodation in a full-time position.

Thus, the particular way in which the duty to accommodate emerged in O'Malley left it somewhat disconnected from associated concepts. In the years following O'Malley, jurisprudence from the Supreme Court of Canada increasingly separated the analysis of direct and adverse effects discrimination, with the duty to accommodate only linked to the latter. (6) Moreover, the lack of any justification requirement for general rules in adverse effects discrimination cases was strengthened with the result that, after a finding of a prima facie case of discrimination, the analysis went straight to the duty to accommodate. (7)

THE UNIFIED TEST IN MEIORIN

Almost fourteen years after O'Malley, the Supreme Court of Canada in Meiorin retreated from the bifurcated approach between direct and adverse effects discrimination. Meiorin involved a challenge to an aerobic fitness standard for forest firefighters. The aerobic fitness standard was introduced after Meiorin had been on the job for three seasons. Although her previous job performance had been judged satisfactory, she was terminated after failing the aerobic fitness test multiple times. Her union filed an unjust dismissal grievance which went to arbitration. The basis for the challenge to Meiorin's dismissal was sex discrimination. Because of physiological differences between men and women, the aerobic fitness test was disproportionately failed by women. Although the test did not explicitly distinguish between men and women, and was thus not direct discrimination, the fact that women were significantly more likely to fail the test made out the prima facie case of adverse effects discrimination. (8) The Supreme Court of Canada's prior jurisprudence adopting a bifurcated approach told the arbitrator that, as a case of adverse effects discrimination, the employer's defence hinged on the duty to accommodate without a serious questioning of the general rule.

The Supreme Court of Canada in Meiorin expressly overruled its previous jurisprudence and abandoned the bifurcated approach whereby the BFOR analysis had been relevant only to direct discrimination and the duty to accommodate had been relevant only to adverse effects discrimination. In a unanimous judgment in Meiorin the Court adopted a unified approach to both direct and adverse effects discrimination, applying a single three-step test for a BFOR.

... three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the...