Conflicting Rights

Questions in this section (click on the question):

15. What if an accommodation conflicts with other regulations or other requests for accommodation?
16. What if the accommodation conflicts with a collective agreement?
17. Some people perceive accommodation as “special treatment.” Is it fair that one person gets “special treatment” over others?

15. What if accommodation conflicts with other regulations or other requests for accommodation?
 
From time to time, an employer or service provider will have to reconcile “conflicting rights.”  For example, someone with an allergy to animals may object to working with someone who has an assistance animal. One possible accommodation would be to physically separate the workers. Another would be to arrange schedules that prevent or reduce contact.

There is no hierarchy of grounds. For example, someone’s need to be accommodated on the basis of family status is as important as somebody else’s need to be accommodated on the basis of religion. You can’t claim discrimination on the grounds of religion as a way to give your accommodation precedence.

There may be cases where an accommodation that is reasonable for one person may not be reasonable when somebody else asks for it. For example, in a case involving INCO, the employer was accommodating two employees’ religious needs to change shifts. When a third employee asked for a similar change of shift, INCO provided evidence that it would amount to undue hardship to accommodate him as well. The tribunal agreed with INCO⁵.

⁵ Osborne v. Inco Ltd (1984), 6 CHRR D/2591 (Man. C.A.),

16. What if the accommodation conflicts with a collective agreement?

The duty to accommodate prevails over private arrangements such as collective agreements. However, a substantial departure from the normal operation of the collective agreement may amount to undue interference and may accordingly constitute undue hardship⁶.

Union members have a legitimate interest in ensuring that the employer implements the terms of the collective agreement. If this interest is threatened by a proposed accommodation, the union need not agree to it, but maintaining the integrity of a collective agreement is not to be considered, if doing so has discriminatory impact. Some employers and unions have developed joint “accommodation committees” to maximize opportunities to accommodate and minimize the impact of accommodation on the collective agreement.

It is legitimate to be concerned about the impact that an accommodation will have on others. However, you have to show more than minor inconvenience to defeat the employee’s right to be accommodated. The courts have said, “The employer must establish actual interference with the rights of other employees, which is not trivial but substantial, will result from the adoption of the accommodating measures.” ⁷

When it comes to collective agreements, unions should follow the same process of identifying and eliminating barriers to full participation in the workplace as does the employer.
 
See also Question #26 (What is a union’s responsibility in the search for accommodation?)

⁶ Renaud, v. Central Okanagan School Board and C.U.P.E., 16 CHRR D/425 (S.C.C.)
⁷ (see Renaud, above)

17.  Some people perceive accommodation as “special treatment.” Is it fair that one person gets “special treatment” over others?

Equal treatment does not mean identical treatment. Sometimes, some employees have to be treated differently so that everyone has equal access to employment. For example, a rule that all employees must stand when greeting customers will deny employment to employees in wheelchairs. Excusing an employee in a wheelchair from this rule lets her or him stay on the job.

This does not mean that these employees have “special treatment.” Rather, the duty to accommodate recognizes that equal treatment excludes some people, who suffer discrimination because of their personal characteristics, such as race, religion or disability. Accommodation removes barriers to full participation in the workplace. When an employer refuses to accommodate, it denies some employees the opportunity to work.

Employees concerned about “special treatment” should be provided the employer’s accommodation policy and procedure, if applicable. Otherwise, the employer or supervisor or union representative should discuss the employer’s legal responsibility to accommodate its employees to the point of undue hardship. It should be explained to the employee that accommodation is a fundamental responsibility that furthers equality and reduces discrimination in the workplace.

It may feel like “special treatment” for a co-worker today. However, that employee may well require accommodation someday.