How Did We Get Here: Setting the Standard for the Duty to Accommodate

Dianne Pothier

Abstract


It has been almost a quarter of a century since the Supreme Court of Canada's decision in O'Malley incorporated the concept of the duty to accommodate into Canadian human rights law and almost a decade since that concept acquired a more prominent position in that Court's adoption of the unified test for bona fide occupational requirement (BFOR) in Meiorin. (1) Yet, I think there remains some conceptual confusion about exactly where and how the concept fits in current Canadian human rights law.

The duty to accommodate cannot be properly understood as a stand-alone concept. It should be seen as subsumed within the overarching concept of reasonable necessity as a critical part of the test for a BFOR. It is also inextricably bound up with the qualification of undue hardship. Moreover, a full appreciation of accommodation includes both individual and systemic dimensions. The duty to accommodate originated as an ad hoc notion, involving only after-the-fact tinkering. A full development of the concept of accommodation requires an appreciation of systemic aspects that have the potential for fundamental transformation of the world of work. To date, the systemic aspects of accommodation have been given only scant attention. In my assessment, as explored in this article, the lack of clarity on all of these points stems largely from the duty to accommodate concept not having fully escaped its roots.

Keywords


Human Rights and Discrimination; Public Law

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