1. ONTARIO HUMAN RIGHTS COMMISSION The Duty to Accommodate Presentation to Accessibility Workshop Essex County Oct. 27, 2011 Presenter Shaheen Azmi, PHD Acting Director, Policy, Education, Monitoring, and Outreach Ontario Human Rights Commission

2. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Overview  Code and human rights  Duty to Accommodate

3. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 The Ontario Human Rights Code  Code is the law in Ontario prohibiting discrimination and harassment  Code promotes a climate of understanding and mutual respect for the dignity and worth of each person  Provides for equal rights and opportunities without discrimination  Aims to ensure each person feels a part of the community and able to contribute fully  Quasi-constitutional

4. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 The Human Rights System u The Code establishes three pillars –The Ontario Human Rights Commission Policy, education, systemic discrimination –The Ontario Human Rights Tribunal Files complaints, mediates, adjudicates –The Human Rights Legal Support System Free legal clinic for selected complainants

5. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011  Code prohibits discrimination and harassment on the basis of certain ‘grounds’:  Race  Ancestry  Place of origin  Colour  Ethnic origin  Citizenship  Creed  Sex/Pregnancy  Sexual Orientation  Age  Record of offences  Marital status  Same-sex partnership status  Family status  Disability Grounds in the Code

6. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011  Code prohibits discrimination and harassment in 5 ‘social areas’:  Employment  Services, Goods & Facilities  Housing  Contracts  Membership in vocational and professional associations Social areas in the Code

7. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Complaints can be made to Ontario Human Rights Tribunal Approach is remedial and preventative: not punitive Must contains 3 key elements: Identified ground + Social area + Differential Impact Human rights complaints

8. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Largest area of complaints: Grounds: u Disability – over 50% u Race and related grounds – about 40% Social areas: u Employment – about 80% u Services – 17% Human rights complaints

9. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Basic Principles of Human Rights  Discrimination - doesn’t have to be intentional  Substantive equality: Not same treatment but equal opportunity  Adverse impact: sometimes neutral rules can have an adverse impact on certain groups  Inclusive design: structures and systems should be as inclusive as possible  Human Rights Accommodation should be provided where barriers are presented

10. ONTARIO HUMAN RIGHTS COMMISSION Disability and Duty to Accommodate

11. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Discrimination and the Duty to Accommodate “The principle object of certain of the prohibited grounds is the elimination of discrimination resulting from the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions….The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society’s benefits and to accommodate them” SCC, Eaton v. Brant County Board of Edcuation

12. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Common concerns Social Areas u Employment u Housing u Goods, services, facilities All Code Grounds u Creed u Sex (pregnancy) u Age u Family, marital, same-sex partnership status u Disability

13. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Definition of Disability u Code definition: “Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness” u Case law has reframed this definition in context of disability as a social construct u Location of disability is in social perceptions and stereotypes not on inherent physical or mental conditions u Disability can now include: Mental, learning and developmental disabilities, workplace injuries u Present, past or perceived conditions

14. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Achieving Integration u Inclusive design u Barrier removal u Accommodate remaining needs

15. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Bona Fide Requirements  Bona Fide Requirements:  According to Meiorin Supreme Court of Canada a rule, requirement etc. which has a discriminatory effect is allowed where it can be shown to be reasonable and bona fide in the circumstances

16. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Bona Fide Requirements (s. 11) Standard, rule, requirement or factor: u Purpose rationally connected to function? u Adopted in good faith? u Reasonably necessary? –impossible to accommodate without undue hardship?

17. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Accommodation Principles u Respect for dignity u Treat people as individuals u Right to integration and full participation

18. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Appropriate Accommodation u The goal: appropriate accommodation not just any accommodation –Promotes three principles –Equal opportunity to attain same level of performance or enjoy same level of benefits and privileges –Proposed or adopted for purpose of achieving equal opportunity –Separate from undue hardship analysis –Continuum

19. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Types u Clothing u Facilities u Work times u Reassignment of non essential tasks u Supports u Devices u technology

20. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 The Accommodation Process “The search for accommodation is a multiparty inquiry. “ Supreme Court of Canada Central Okanagan School District v. Renaud

21. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Accommodation Seeker u Inform those being asked for accommodation of their needs u Co-operate in obtaining necessary information u Participate in discussions about solutions u Work with the other parties on an ongoing basis to manage the process

22. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Accommodation Providers u Accept accommodation requests in good faith u Request only information required to make accommodation u Obtain expert advice where necessary u Bear the cost of any required medical information or documentation

23. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Accommodation Providers u Maintain confidentiality of persons seeking accommodation u Take an active role in ensuring possible solutions are examined u Deal with accommodation requests in a timely way

24. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Unions u Take an active role as partners in the process u Share joint responsibility with employer to promote accommodation u Support accommodation measures regardless of the collective agreement

25. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Limits of Accommodation u Accommodation need not be provided if it causes “undue hardship” u Standard for undue hardship is a high one u Onus of proof is on the accommodation provider

26. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Limits of Accommodation FACTORS NOT CONSIDERED u Business inconvenience u Resentment or hostility from co-workers u Operation of collective agreements u Customer “preferences”

27. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Limits of Accommodation FACTORS CONSIDERED u Costs u Outside sources of funding u Health and Safety

28. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Costs u Quantifiable u Related to the accommodation u Look at whole organization, not just branch/unit u Altering the essential nature or affecting viability of business

29. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Minimizing Costs u Recover/distribute costs u Immediate versus phased-in u Reserve funds u Outside sources of funding u Creative design solutions

30. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Health and Safety u Requirements bona fide and reasonable u Look at alternate means u Risk assessed after precautions have been taken to reduce it u Assess nature/severity/probability/scope of risk u Does risk remaining after accommodation outweigh benefits of enhancing equality?

31. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Assumption of Risk An accommodation seeker may wish to take on some degree of risk: u Is person fully informed of risk? u How serious is the risk? u Is there a risk to anyone else?

32. Ontario Human Rights Commission Commission ontarienne des droits de la personne Oct. 27, 2011 Commission contact Head Office: 180 Dundas St. W. 8th flr Toronto, ON M7A 2R9 Web Site: www.ohrc.on.ca