Duty to accommodate – Johnstone decision

People with disabilities may encounter many kinds of barriers on a daily basis. These can be physical, attitudinal or systemic. There is a positive obligation on employers to identify and remove barriers in the workplace.

The duty to accommodate requires employers to proactively identify and eliminate rules, policies, practices and standards that have a discriminatory impact. Accommodation means reviewing and revising the rule, policy, practice or standard to incorporate alternative arrangements that eliminate discriminatory barriers. As well, the employers are required to accommodate individual requests by doing the following:

  • Explore options for removing those barriers that might affect the person requesting accommodation; and
  • provide reasonable accommodation to the point of undue hardship.

Steps for Accommodation

  • Inform the employer and union representatives of the need for accommodation (on the basis of disability, family status, religion, race, sex, gender identity, etc.);
  • Provide necessary information related to the accommodation requirement as requested by the employer (i.e. medical restrictions and limitations);
  • Discuss accommodation options with employer and union representatives and develop a written accommodation plan;
  • Implement accommodation plan;
  • Review and revise accommodation plan as necessary.

Note that each accommodation case is unique and must be assessed on a case-by-case basis. These steps are a general guide only and may need to be adapted.

For more information on the duty to accommodate, we invite you to read the PSAC’s Duty to Accommodate Guide which covers many frequently asked questions.

The Johnstone Decision

The Johnstone Decision is a 2010 groundbreaking decision of the Canadian Human Rights Tribunal, subsequently upheld by the  Federal Court of Appeal. The decision found the Canada Border Services Agency (CBSA) discriminated against PSAC member Fiona Johnstone by failing to accommodate her family obligations.

Ms Johnstone worked as a Border Services Officer at CBSA, requiring a fixed-shift schedule to arrange for child care. The employer refused to consider her request, given its view that it had no obligation under the Canadian Human Rights Act to accommodate her personal choices around childcare. PSAC supported Ms Johnstone throughout this lengthy human rights and Federal Court battle.

Ultimately, by upholding the decision of the Tribunal, the Court of Appeal rejected the narrow approach to family status accommodation argued by the government. The Court confirmed that human rights legislation is to be interpreted in a broad and liberal manner and that family status includes child care and other legal family obligations.The Court emphasized that there should be no hierarchy of rights, such that the test for family status accommodation was more difficult to meet than the other grounds of discrimination. Instead, employers are required to conduct a case-by-case analysis with a view to accommodating the particular needs of individual employees.

Some content on this page was first published on the PSAC website.