duty to accommodate (2012 08) - ohrc - cmha opening doors facilitator training

August 2, 2012 1

The Duty to Accommodate

2Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Accommodation Principles

Respect for dignity

Treat people as individuals

Right to integration and full participation

These guide both procedural and substantive accommodation

3Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Achieving Integration

Inclusive design

Barrier removal

Accommodate remaining needs

4Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Accommodation

Accommodation often occurs based on the following Code grounds:

Disability Sex (including pregnancy) Gender identity & gender expression Creed Family status Age

5Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Question

What rules, requirements, policies or standards exist that may seem neutral, but have an adverse impact or disadvantage people with mental health disabilities or addictions? On people based on other Code grounds?

6Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Bona Fide Requirements(s. 11)

Standard, rule, requirement or factor: Purpose rationally connected to

function? Adopted in good faith? Reasonably necessary in the sense

that it is impossible to accommodate without undue hardship?

7Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Appropriate Accommodation

Separate from undue hardship analysis

Continuum 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

8Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Accommodation Seeker

Inform the accommodation provider of their needs

Co-operate in obtaining necessary information

Participate in discussions about solutions

Work with the other parties on an ongoing basis to manage the process

9Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Accommodation Providers

Accept accommodation requests in good faith

Request only information required to make accommodation

Obtain expert advice where necessary Bear the cost of any required medical

information or documentation

10Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Accommodation Providers

Maintain confidentiality of persons seeking accommodation

Take an active role in ensuring possible solutions are examined

Deal with accommodation requests in a timely way

11Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Limits of Accommodation

Accommodation need not be provided if it causes “undue hardship”

Standard for undue hardship is a high one

Onus of proof is on the accommodation provider

12Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Limits of Accommodation

FACTORS NOT CONSIDERED Business inconvenience Resentment or hostility from co-

workers Operation of collective agreements Customer “preferences”

13Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Limits of Accommodation

FACTORS CONSIDERED Costs Outside sources of funding Health and Safety

14Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Costs

Quantifiable Related to the accommodation Look at whole organization, not

just branch/unit Altering the essential nature or

affecting viability of business

15Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Minimizing Costs

Recover/distribute costs Immediate versus phased-in Reserve funds Outside sources of funding Creative design solutions

16Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Health and Safety

Requirements bona fide and reasonable Look at alternate means of

accommodation to avoid risk Assess nature/severity/probability/scope

of risk Risk assessed after precautions have

been taken to reduce it Does risk remaining after accommodation

outweigh benefits of enhancing equality?

17Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Assessing Risk

Nature of risk (what could happen that would be harmful?)

Severity of risk (how serious would the harm be if it occurred?)

Probability of risk (how likely is it that the potential harm will actually occur?)

Real risk, or merely hypothetical or speculative? could it occur frequently?

Scope of risk (who will be affected by the event if it occurs?)

18Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Assumption of Risk

An accommodation seeker may wish to take on some degree of risk:

Is person fully informed of risk? How serious is the risk? Is there a risk to anyone else?

19Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Question

What are forms of accommodation thatmight be relevant to someone with a mentalhealth issue in: Employment Housing Services?

What are forms of accommodation based onother Code grounds?

20Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Types of Accommodation: Employment

Modified facilities Modified job duties Flexible policies, procedures Technical or human support Time off Alternate formats Alternate methods of assessment

21Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Types of Accommodation: Housing

Modified units, common elements Flexible policies, procedures Considering alternative rental criteria Third-party support Alternate formats of communication Taking disability into account as a

mitigating factor

22Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Types of Accommodation: Services

Flexible deadlines, or extra time given Quiet service environment Human support Multiple ways of contacting the organization Facilitating or providing support for

decision-making Accessible forms and application

procedures Flexibility in scheduling appointments Considering disability as a mitigating factor

August 2, 2012 23

BREAK

August 2, 2012 24

Scenarios

25Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Scenarios

Ground Social Area Discriminatory effect? Issues, principles, considerations Problems, or anything else you need

to know in order to assess? What could be done, or should have

been done differently?

26Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Scenario #1

A person with a mental health disability asks her landlord for an accommodation. The landlord tells her that before he can accommodate her, he requires that she give him her medical diagnosis.

27Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Scenario #2

A newly hired employee discloses that he has bipolar disorder and asks his employer to call his wife and doctor if they notice anything unusual in his behaviour. He also states that he may need to take a few days off if this happens. His employer is concerned that he did not tell them this when he applied. A few days later, the employee starts exhibiting strange behaviour, and the company dismisses him on the basis that his high security position requires someone who can handle stress, and is stable and available.

28Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Scenario #3

A person who is a newcomer to Canada gets taken to a mental health hospital by police. He does not speak English and requests a language interpreter. The hospital has a policy only to provide services in English and French. ASL interpreters are provided if needed for someone’s disability. As a result, the doctor does an assessment without an interpreter present.

29Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Scenario #4

A person with a mental health disability applies for work using a supported employment agency. The supported employment agency tells her that she is not ready for employment because she has recently been released from hospital, and does not recommend her for a position.

30Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Scenario #5

A woman with schizophrenia shows erratic behaviour in her apartment, such as yelling in the night, putting her TV out in the hallway, and leaving papers on the stove burners. The landlord, concerned about health and safety, evicts her for disturbing the “reasonable enjoyment of the premises” of other tenants.

31Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Scenario #6

After a few weeks of being on a job placed by a supported employment agency, the employer tells the agency that “it’s not working out” because the employee with a mental health issue needs more time than other workers to learn the position. The supported employment agency depends on good relationships with its employers. They agree to place the person somewhere else.

32Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Scenario #7A man who identifies as Muslim is in a forensic mental health facility. He shares a room and eats his meals with other patients. Due to his religious requirements, he requests halal meals and that he be given a private space to pray several times a day. Because of the side effects of his medication, he also has difficulty eating his whole meal in the time given to patients at meal times (all meals are supervised by staff). Because of this, he is losing weight.

The hospital denies the requests for a special diet and a place to pray because they lack available staff to respond to individualized meal requests, and they don’t have extra space in the facility. They say that special requests are often difficult to agree to because they lack staff to provide the extra supervision that may be required due to possible health and safety concerns.

33Ontario Human Rights CommissionCommission ontarienne des droits de la personne

Opening Doors

August 2 & 3, 2012

Scenario #8

An addictions counselor’s coworkers start to notice that she comes to work visibly under the influence of alcohol. The employee starts cancelling her counseling appointments unexpectedly. Shortly thereafter, the manager confronts the employee, who denies that she is using alcohol. The employer terminates the employee’s job, stating she is a health and safety risk to her clients and cannot perform the essential duties of her position.

August 2, 2012 34

Questions?