Introduction to the Issue
In an effort to clarify the issues surrounding environmental sensitivities and accommodation for them in employment, housing, facilities, employee organizations and services, the Canadian Human Rights Commission commissioned two research projects. One examines the medical and architectural considerations and awareness of environmental sensitivities. The other project, this report, examines past legal assessments of accommodation for environmental sensitivities, including how third parties may be involved and the relevance of buildings codes and standards. The report was commissioned to answer the following questions:
What is the current status of case law on environmental sensitivities in Canada, including complaints filed with federal, provincial and territorial human rights commissions and tribunals? What is the current status of case law on environmental sensitivities in the U.S., U.K., Australia and New Zealand, including complaints filed with their human rights commissions and tribunals, if applicable? Do government policies and standards on building codes, air quality and ventilation include features that can act as barriers or shortcomings that are detrimental to individuals with environmental sensitivities? Does the case law include accommodation advice, including best practices, concerning environmental sensitivities? What are the pros and cons of these measures in terms of health, safety and cost? What do the legislation and case law tell us about resolving situations where the rights and interests of some appear to conflict with those of others? How can opposing rights and interests be reconciled? Where does the threshold of undue hardship lie under the Canadian Human Rights Act and the case law, considering the expense that may be involved in accommodations for environmental sensitivities (e.g. major renovations to buildings, moving to another building and major improvement of air quality)? If there is a conflict between the preference of the employee and the ability of the employer to provide accommodation, and if so, how is this conflict resolved?This report begins by examining environmental sensitivities generally to provide context for the research that follows. The authors consider environmental sensitivities in the light of international definitions of disability and evidentiary difficulties that may arise for litigants because of the minimal understanding of the condition within the medical community.
In the sections that follow, the researchers turn to a consideration of the types of accommodations that may be requested by a person with environmental sensitivities and to jurisprudential consideration of the reasonableness of these accommodations in Canada, the United States, and Australia. The researchers also conducted research into New Zealand and United Kingdom jurisprudence, but were unable to identify anything of relevance. In each jurisdiction, the researchers consider which accommodations have been accepted and which have been rejected as unreasonable or as causing undue hardship. The researchers consider how third parties are engaged in the accommodation process and how the rights of the different parties are reconciled. The section concludes with the researchers drawing cross-jurisdictional conclusions on what accommodations will likely be required as a result of Canadian human rights analysis.
The researchers continue by examining the extent to which the case law, their consultations and secondary sources identify specific barriers or shortcomings in building codes and government standards on construction that are detrimental to individuals with environmental sensitivities.
This report concludes by providing, for the Commission and the employers, providers of goods, services, facilities or accommodations, and employee organizations subject to the Canadian Human Rights Act, R.S.C. c. H-6 (the “Act”), descriptions of best practices in relation to accommodation of environmental sensitivities and principles of universal design.1 This discussion includes a review of sample policies specific to accommodation for environmental sensitivities, such as fragrance or smoking policies.
Environmental Sensitivities
Environmental sensitivities are not easily defined, as they are a complex and often poorly understood group of chronic conditions. The explanation of sensitivities that appears below is given here merely to provide context for the legal analysis that follows.
The Ad Hoc Committee on Environmental Hypersensitivity Disorders, chaired by former Judge George M. Thomson, defined environmental sensitivities as:
a chronic (i.e. continuing for more than three months) multisystem disorder, usually involving symptoms of the central nervous system and at least one other system. Affected persons are frequently intolerant to some foods and they react adversely to some chemicals and to environmental agents, singly or in combination, at levels generally tolerated by the majority… Improvement is associated with avoidance of suspected agents and symptoms recur with re-exposure.2
Individuals with environmental sensitivities experience adverse reactions to environmental agents below the level deemed to be unsafe or to affect people. The causes, symptoms and triggers of environmental sensitivities vary from individual to individual. The triggering environmental agents are prevalent throughout the built environment and include electromagnetic fields and the chemicals found in building materials, furniture, cleaning and copying products, fragrances, and pesticides.
As a result of the scientific confusion, diagnostic difficulty and general lack of knowledge within the medical and broader community with regard to environmental sensitivities, the latter are often misdiagnosed as psychological or psychiatric conditions. This misdiagnosis and misunderstanding results in social stigma for people with sensitivities and may result in a denial of accommodation, with individuals being told that "it is in their head." However, despite the lack of clarity on the causes of environmental sensitivities and the absence of a diagnostic test, there is no doubt that individuals experience physical symptoms as a result of environmental agents. Even if environmental sensitivities were triggered by a psychiatric condition, the Act’s guarantee of accommodation to the point of undue hardship and non-discrimination would be equally applicable, albeit potentially with different forms of accommodation.
While this paper uses the term "environmental sensitivities," numerous other terms refer to the same or similar conditions, including "multiple chemical sensitivity (MCS)," "chemical injury," "sick building syndrome," "environmental illness," "environmental hypersensitivity," "electromagnetic field (EMF) sensitivity," "Gulf War syndrome," "environmental sensitivity disorder," "20th century disease" and "environmental allergies." Because of the variation in triggers and symptoms, it is preferable to refer to sensitivities in the plural, rather than the singular.
1. While the Act’s prohibition of discrimination in sections 5-13 applies to all employers, providers of goods, services, facilities or accommodations, and employee organizations under the federal jurisdiction of the Canadian Human Rights Commission, the researchers use the term “employers and service providers” throughout this paper. This term is used for ease of reference and not because the duty to accommodate and the standard of undue hardship discussed in this paper do not apply equally to all entities covered by the Act.
2. Report of the Ad Hoc Committee on Environmental Hypersensitivity Disorders, to Murray J. Elston, Minister of Health (August 1985), at 17-18.