The duty to accommodate can be one of the most perplexing (and vexing) issues faced by employers. The recent Supreme Court of Canada (“Court”) decision of Moore v. British Columbia (Education), provides some insight into the scope of the duty to accommodate, particularly where that accommodation comes at a significant financial cost.
Factually, the Moore decision is not an employment case but, rather, involved the provision of remedial instruction to Jeffrey Moore, a public school student with severe learning disabilities. As a result of financial constraints, the school board announced that it would not longer be able to provide the intensive support that Jeffrey had previously enjoyed. In order to continue obtaining the sort of instruction he required, Jeffrey’s only option was to attend private school, at significant cost to his family.
The Moore family filed a human rights complaint against the school board, alleging that Jeffrey was discriminated against on the basis of his disability. The Court upheld the original decision of the British Columbia Human Rights Tribunal, which ordered the school board to reimburse the Moore family for the costs related to his attendance at private school, and to pay $10,000.00 in damages for pain and suffering.
The Court did not comment directly on the duty of employers to accommodate employees with disability-related needs. However, the Court’s consideration of whether the school board’s discrimination was justified on the basis of undue hardship provides employers with some guidance on the duty to accommodate where that duty comes at a significant financial cost to the employer.
The school board argued that its discriminatory treatment of Jeffrey was justified on the basis that budget cuts had led to the closure of the special program Jeffrey attended, and that providing the service would have resulted in undue hardship. In its review of the school board’s financial justification argument the Court considered the following:
- the decision to close the program was purely a financial one;
- at the time the decision was made, the school board had made no analysis as to available alternatives; and
- after the program closed, the only services available to students with severe learning disabilities were those which had previously been provided to students with less severe needs.
While the Court noted that financial constraints were a “relevant consideration” to determining whether undue hardship was established, it also stated that accommodation is not a question of “mere efficiency”. However, in Moore, the school board’s failure to consider available alternatives to closure of the program rendered those financial considerations moot.
In the employment context, in order to establish undue hardship, an employer must show that all reasonable means of accommodation have been exhausted and that only unreasonable or impractical options for accommodation remain. As the Court in Moore noted, an employer must show that alternative approaches were considered and the employer must establish “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual”.
Moore highlights the need for employers to engage in comprehensive consideration of alternative measures which limit the negative impact of discriminatory action. The employer must ultimately show that it considered and rejected all viable forms of accommodation that were not discriminatory, and be in a position to explain why those forms of accommodation could not be implemented.
The employer must then show that it could not accommodate the employee without suffering undue hardship. Some financial hardship is to be expected in accommodation and limited financial cost will not, on its own, result in a finding of undue hardship. As was established in an earlier decision of the Court, British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees Union, (otherwise known as the “Meiorin” decision), some of the factors which may be considered in determining whether undue hardship will result include financial cost, disruption of a collective agreement, negative impact on worker morale, interchangeability of work force and facilities, the size of the operation, safety and risk.
The moral of the Moore story (at least from the employment perspective) can be summarized as follows:
- if an employee requires accommodation, all viable alternatives (regardless of how expensive) must be considered and evaluated;
- if a viable alternative is rejected, the employer must be in a position to explain why it could not be implemented;
- some expense for accommodation must be expected by the employer; and
- without proper analysis of available accommodation alternatives, financial arguments alone will not provide an employer with a successful undue hardship argument.