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  April 14, 2016

Undue Hardship

When referring to an employer’s duty to accommodate to the point of "undue hardship," the use of the word undue implies that some hardship is acceptable. Indeed, some hardship is generally expected in the accommodation process. It is only undue hardship that exhausts an employer’s duty to accommodate.

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An impugned workplace standard, rule or practice, if it is to be justified under the Human Rights Code, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship.

The relevant factors that may be considered when assessing an employer’s duty to accommodate an employee to the point of undue hardship include the following:

  • the financial cost of the possible method of accommodation;
  • the disruption of operations;
  • the relative changeability of the workforce and facilities;
  • the prospect of substantial interference with the rights of other employees,
  • the impact on a collective agreement; and
  • any health and safety concerns.

This list is not necessarily exhaustive. However, some other considerations — such as convenience or employee morale — are often rejected as valid considerations in assessing undue hardship.

Some service providers seek to rely on customer preferences as a bona fide justification for discriminatory conduct, but this is a perilous position. The Tribunal has rejected customer preference as a justification in many cases. For example, in De Jong v. Horlacher Holdings Ltd., [1989] B.C.C.H.R.D. No. 13, customer preference was rejected as a defense to discrimination on the basis of disability in circumstances where an employer dismissed an employee with acne because of customer complaints about her appearance and misguided fears of HIV and other diseases. In reaching that conclusion, the Tribunal reasoned that it is not a defence to say that one discriminated as a matter of business or economic advantage or necessity, to meet the wishes of other persons, such as customers, tenants or employees. In short, the Tribunal adopted the proposition that “one cannot break the law because another person wants or encourages the transgressor to do so”. The Tribunal affirmed this proposition in Gordy v Oak Bay Marina, 2004 BCHRT 225, stating it is well established that it cannot be a defense to assert one only discriminated because of the real or perceived preferences of customers.

The financial cost of accommodation is frequently cited as a significant hardship by employers. Such costs may amount to undue hardship if they are:

  • quantifiable;
  • tied to the accommodation measures; and
  • sufficiently substantial as to be prohibitive.

Other factors relevant to the consideration of the costs of accommodation measures include:

  • the size of the organization and its relative financial means;
  • the timing of the costs and the employer’s ability to spread the costs over time and/or across the organization; and
  • the availability of outside resources, such as government grants, tax incentives, etc.

Employers faced with an accommodation issue should be aware that the BC Human Rights Tribunal and the courts have generally set a high threshold for employers arguing that they are unable to accommodate a claimant without experiencing undue hardship.

Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.