Under the British Columbia (BC) Human Rights Code (the Code), an employer may not treat a worker differently on the basis of the prohibited grounds enumerated in the Code. In other words, the Code protects you from discrimination.
In general terms, when a worker requests an accommodation on the basis of one of the enumerated protected characteristics, an employer has should accommodate that duty unless it is very difficult to do so. This is otherwise known as their duty to accommodate. I.e. A worker experiences a psychological injury requiring fewer hours at work and the ability to work from home 1 day a week.
In this article, we explore the concept of workplace discrimination, the legal duty to accommodate, the limitations of this duty and what qualifies as reasonable accommodation.
BC Workplace Discrimination
The Code prohibits employers from discrimination against employees on protected grounds.
Discrimination can occur in various ways, but it’s generally described as unfair behaviour that limits a person or group of people’s access to opportunities and benefits available to others as a direct result of a distinct personal characteristic.
The following grounds are protected:
- race, ancestry or place of origin;
- religion;
- marital status;
- physical or mental disability;
- sexual orientation;
- sex or gender (including pregnancy status);
- age;
- political beliefs; and/or
- criminal conviction (if the conviction relates to an undertaking independent to your employment).
If you would like to learn more about workplace discrimination in BC, you can read Zoe Arghandewal’s discussion here.
An Employer’s Legal Duty to Accommodate
To ensure fair treatment in the workplace and equitable access to employment opportunities, employers have a legal duty to accommodate.
In simple terms, for an employer to be accommodating, they may need to adapt and adjust the workplace to accommodate the employee’s protected characteristic.
EXAMPLE
Suppose an employee has a physical disability. In that case, all reasonable efforts must be made to make the employment relationship work, such as considering adjustments, within reason, to the work schedules or duties. If an accommodation is too difficult for the employer to accommodate they may take the position that the accommodation would cause them undue hardship and they have a justifiable reason for terminations (the discrimination).
Duty to Accommodate Limitations: Undue Hardship
While it’s important to ensure that employees have access to fair treatment and equal opportunity, the employer should not suffer undue hardship while attempting to achieve that.
So, if your employer is taking all the reasonable steps to accommodate you, but it costs them massive amounts of money, or it’s negatively affecting your co-workers, then their duty to accommodate you is reasonably limited.
Each workplace will differ in what is reasonable or not. Still, in general, you can expect your employer to consider the following factors when deciding on whether or not the duty to accommodate you will cause them undue hardship:
- the impact that accommodating your rights will have on other employees;
- the cost of accommodating your rights;
- the size and flexibility of the workplace (a big company has access to more resources than a small company, for example); and
- possible health and safety risks.
BC regulations set a very high standard for limiting an employer’s duty to accommodate. So, it’s not enough for you to claim that the duty to accommodate is inconvenient.
Reasonable Acceptance of a Solution
Having said that, it is expected that reasonable offers of accommodation would be accepted by workers.
EXAMPLE
If an employer can’t afford to install a lift to accommodate your wheelchair access but can afford to install wheelchair ramps – that’s may be a reasonable solution.
Key Takeaways
When it comes to human rights protection and the BC Human Rights Code, there are several protected personal characteristics that employers should be aware of.
An employer’s duty to accommodate relate to and exist to prevent workplace discrimination. Where a protected personal characteristic is involved, such as pregnancy status or religion, employers are required to do what they can to accommodate and ensure that their employees are protected – unless it causes them undue hardship.
If you feel that you are the target of discrimination, a human rights lawyer can assess your circumstances with you and assist you with understanding your legal position and options.
At Arghandewal Law, Zoe is dedicated to assisting employees through the process of understanding their legal position and working towards the best possible resolution for you.
So, if you have any questions about your employer’s duty to accommodate, contact us today!
