We have developed a good understanding of the Employer’s Duty to Accommodate, where we use a Functional Abilities Assessment, but have not addressed the potential precursor of this duty, namely the Duty to Inquire. Similarly, we have discussed the concept of Undue Hardship, but with only limited detail.
The two quotations from policies developed at the Ontario Human Rights Commission provide good guidance on these concepts. Although I am referencing Ontario, the principles can generally apply equally in all other jurisdictions.
Duty to Inquire
“Where an organization is aware, or reasonably ought to be aware, that there may be a relationship between a disability and someone’s job performance, ………… the organization has a “duty to inquire” into that possible relationship before making a decision that would affect the person adversely.
This includes providing a meaningful opportunity to the employee to identify a disability and request accommodation. A severe change in a person’s behaviour could signal that the situation warrants further examination. Where a person exhibits inappropriate behaviour due to a disability, employers……. have a duty to assess each person individually before imposing measures that may affect the person negatively. Such measures might include ……. imposing discipline in employment.
Before sanctioning a person for misconduct or “unacceptable behaviour,” an organization must first consider whether the actions of the person are caused by a disability, especially where the organization is aware or perceives that the person has a disability. The person’s disability must be considered in determining what, if any, sanctions are appropriate, unless this causes undue hardship.” Ontario Human Rights Commission
“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:
• 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.
To claim the undue hardship defence, the organization responsible for making the accommodation has the onus of proof. It is not up to the person with a disability to prove that an accommodation can be accomplished without undue hardship. The nature of the evidence required to prove undue hardship must be objective, real, direct and, in the case of cost, quantifiable. The organization responsible for accommodation must provide facts, figures and scientific data or opinion to support a claim that the proposed accommodation in fact causes undue hardship.
A mere statement, without supporting evidence, that the cost or risk is “too high” based on speculation or stereotypes will not be sufficient.
Objective evidence includes, but is not limited to:
• financial statements and budgets
• scientific data, information and data resulting from empirical studies
• expert opinion
• detailed information about the activity and the requested accommodation
• information about the conditions surrounding the activity and their effects on the person or group with a disability.” Ontario Human Rights Commission
Note: Remember these important principles to ensure there is a proper defence, when confronted with a human rights complaint as a result of the termination with notice of an employee, who claims protected grounds.