What is the duty to accommodate?

The duty to accommodate is the legal obligation of employers, service providers, and other organisations to adjust rules, practices, or facilities to enable people with protected human-rights characteristics to participate fully, up to the point of undue hardship. The duty applies under both the Canadian Charter of Rights and Freedoms (in cases involving government action) and federal-provincial human-rights statutes (in cases involving private employers and service providers). It has become one of the most-applied principles in Canadian human-rights law.

The duty was first articulated as a constitutional principle in Ontario Human Rights Commission v. Simpsons-Sears (1985), often cited as O'Malley, where the Supreme Court of Canada required Simpsons-Sears to accommodate a Seventh-day Adventist employee whose Sabbath observance conflicted with Saturday work scheduling. The court held that intent to discriminate is not required; neutrally applied rules can have discriminatory effects (adverse-effect discrimination) and must be modified to accommodate.

The current framework was refined in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999), known as the Meiorin case, which set out a three-step test for justifying a discriminatory standard: the standard must be rationally connected to the work, adopted in good faith, and reasonably necessary to accomplish the work-related purpose, with accommodation up to undue hardship. The undue-hardship threshold considers cost, health and safety, the interchangeability of the workforce, and the size of the operation.

Accommodation cases span many grounds. Disability accommodation includes physical-access modifications, modified duties, assistive technology, and scheduling flexibility (Eldridge v. British Columbia, 1997, on sign-language interpretation; Council of Canadians with Disabilities v. VIA Rail Canada, 2007, on rail accessibility). Religious accommodation includes Sabbath observance, religious dress (Multani v. Commission scolaire Marguerite-Bourgeoys, 2006, on the kirpan in school), and prayer time. Family-status accommodation (Canadian National Railway v. Seeley, 2014) addresses childcare obligations. Pregnancy and parental accommodation flow from sex-discrimination protections under section 15 of the Charter and provincial codes.