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February 3, 2017

Undue Hardship

I am not a lawyer, but I have a finely tuned sense of justice. Unforgiving, you might say. 
I have been rankled by the concept of 'undue hardship' which is written into many pieces of accessibility legislation. It strikes me as one of those fictional constructs designed to keep people with disabilities in their place. Like the 'change of use' or 'under 200 square meters' exemptions in the building code, it's a bit of fantasy that springs from some deep desire to repress people who are different. Undue hardship always struck me as a one way street in the sense that it applies only to the employer.

The Ontario Human Rights Commission says this:
Organizations covered by the Code have a duty to accommodate to the point of undue hardship. Some degree of hardship may be expected – it is only if the hardship is “undue” that the accommodation will not need to be provided. In many cases, it will not be difficult to accommodate a person’s disability. Accommodation may simply involve making policies, rules and requirements more flexible. While doing this may involve some administrative inconvenience, inconvenience by itself is not a factor for assessing undue hardship. The Code prescribes only three considerations when assessing whether an accommodation would cause undue hardship: 
  •  cost 
  • outside sources of funding, if any 
  • health and safety requirements, if any.
No other considerations can be properly taken into account under Ontario law. Therefore, factors such as business inconvenience, employee morale and customer and third-party preferences are not valid considerations in assessing whether an accommodation would cause undue hardship. 
Nova Scotia is similar:

All employers must try to accommodate the needs of their employees up to the point of undue hardship. Where this point is depends on several things, including the size of the organization and the role of the employee within the organization. For example, the larger the organization, the greater is the ability to accommodate. Accommodation does not have to be perfect, but it should be reasonable.

Nova Scotia reinforces the one-way-street message by adding:
An employee also has a duty in the accommodation process to provide sufficient medical information to show how his or her medical condition affects his or her ability to do the job. If an employee does not cooperate, the employer may not need to accommodate the employee.

Sheila Wildeman at Dal Law School furnished this eye-popping reference from a Supreme Court of Canada decision called Grismer :
"While in some circumstances excessive cost may justify a refusal to accommodate those with disabilities, one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment. This Court rejected cost-based arguments in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at paras. 87-94, a case where the cost of accommodation was shown to be modest. I do not assert that cost is always irrelevant to accommodation. I do assert, however, that impressionistic evidence of increased expense will not generally suffice. Government agencies perform many expensive services for the public that they serve. Moreover, there may be ways to reduce costs.”

It is a two way street!  Undue hardship goes both ways.  The expense of accommodation is measured against the cost of not accommodating instead of just referencing itself.  How did I not know this?  It is a 1999 decision, and I'm sorry to have been so benighted.

In the future, when someone mentions undue hardship I will say "and what about my undue hardship?"

Thank you Sheila!


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