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October 7, 2018

Undue Hardship


In Nova Scotia, the single reference on the Human Rights webpage to "Undue Hardship" is in the context of employment:

Duty to Accommodate

Employers must not discriminate against employees based on protected characteristics, such as disability or gender. In fact, an employer has what is called a “duty to accommodate." This means they must do what is reasonable to allow a person to get, or keep, a job.

Accommodating a person may mean allowing shorter work hours, changing job duties, or providing equipment that will let a person continue to work. 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.

Those of us on the receiving end of ''accommodation" are accustomed to hearing "undue hardship" used in the context of physical barriers.

  • "We don't provide level access to our business because a ramp isn't feasible and a lift is too expensive"
  • "Our doorways are 800mm wide and it would be an undue hardship to renovate them to 1000mm"
  • "Our washroom is downstairs and it would cost a fortune to move it"
There's a lengthy section in in Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15 (CanLII), released on March 23, 2007 which includes this interesting paragraph:

225 The threshold of “undue hardship” is not mere efficiency. It goes without saying that in weighing the competing interests on a balance sheet, the costs of restructuring or retrofitting are financially calculable, while the benefits of eliminating discrimination tend not to be. What monetary value can be assigned to dignity, to be weighed against the measurable cost of an accessible environment? It will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier.

To me this introduces the important idea that it's not just the undue hardship of a business or process that counts, but also the undue hardship of the user or patron and the undue hardship of the community.  So instead of just:
The cost to accommodate is unreasonable.
it becomes
The cost to accommodate + the cost to the individual + the cost to the community is unreasonable.

As an example, consider situation of a newly-minted social worker who is deaf.  A complete accounting of "undue hardship" might start with the cost of having an ASL interpreter at meetings and some technology, but should include the fact that we all have quite an investment in her education and that we collectively stand to benefit from her employment.  So it the cost to accommodate is
ASL Interpreter + fancy voice recognition device
- what we spent on her education
- the benefit of having a social worker 

I would feel better if the new Accessibility Standards had this a a principle - that accommodation has benefits as well as costs.  They can be harder to quantify, but the effort must be made.

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