It is well established in human rights law that employers have a ‘duty to accommodate’  their employees. Put simply, this duty requires that employers make efforts to accommodate certain protected characteristics to the point of undue hardship. However, courts and tribunals have expressed different views about the scope of the duty to accommodate and  in particular, whether that duty includes separate procedural and substantive obligations.

In some cases, the duty to accommodate has been viewed as encompassing two separate and distinct duties: one procedural, and one substantive. The procedural duty requires an employer to take steps to inquire into an employee’s accommodation needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive duty relates to the actual accommodation implemented by the employer, or in the alternative, the reasons why the employer determined such accommodations could not be offered.

Based on this view, some courts and tribunals (most notably the Ontario Human Rights Tribunal) have awarded damages for an employer’s failure to meet the procedural duty to accommodate, even in cases where it was found that an employee could not be accommodated without undue hardship.

Conversely, courts in British Columbia have taken a different approach, considering the employer’s procedural actions or lack thereof as a tool to assess whether the employer has accommodated the employee to the point of undue hardship. However, that approach has been consistently followed, even within British Columbia.

The Federal Court of Appeal recently weighed in on this debate in Canadian Human Rights Commission v Attorney General of Canada and Bronwyn Cruden.1 That case involved a human rights complaint brought by an employee of the Canadian International Development Agency (CIDA). The employee, who suffered from type 1 diabetes, was denied a temporary posting in Afghanistan because she failed to meet medical guidelines which precluded employees with chronic medical conditions from being posted to that country.

The Canadian Human Rights Tribunal (the “Tribunal”) found that the medical guidelines were a bona fide occupational requirement, and therefore accepted that CIDA could not accommodate the employee without undue hardship. Nonetheless, the Tribunal went on to uphold the employee’s complaint on the basis that there were procedural shortcomings in the employer’s accommodation process. CIDA appealed the Tribunal’s decision.

The central issue on appeal was whether employees had a separate procedural right to accommodation that could be independently breached and could therefore attract remedies under the Canadian Human Rights Act, even if the employer could not accommodate the employee without undue hardship. The Federal Court set aside the Tribunal’s decision, concluding that once  it is found that an employee cannot be accommodated without undue hardship there is no basis for a finding of discrimination.

The Tribunal sought judicial review from the Federal Court of Appeal. At paragraph 19 of its decision, the Court of Appeal confirmed that “there is no separate procedural duty to accommodate under the [Canadian Human Rights Act] that could give rise to remedies…”. However, the Court of Appeal went on to note that procedural steps taken by the employer will be useful in assessing whether appropriate accommodation has been achieved. The overriding consideration is whether the employee’s disability would impose an undue hardship upon the employer.

Based on the Cruden decision, it seems clear that in the federal sector, a lack of procedure alone will not be sufficient to give rise to a breach of the duty to accommodate or damages. It remains to be seen  whether the Federal Court of Appeal’s approach will be adopted in jurisdictions which had previously recognized the existence of two separate duties. However, such a change would be a welcome development for employers, as it would clarify that liability can only arise where an employer has breached the duty to accommodate and not simply where it has failed to take certain procedural steps in the accommodation  process.

David O’Neill