Working for the Government of Canada: The duty to accommodate and your right to non-discrimination
A non-discriminatory workplace
In Canada, every person has the right to equal treatment in the workplace without discrimination pursuant to the Canadian Charter of Rights and Freedoms and as reflected in the prohibited grounds of discrimination under the Canadian Human Rights Act. The Government of Canada is committed to a work environment that is inclusive, obstacle-free and non-discriminatory. It strives to adopt hiring practices that are non-discriminatory, and to fulfill its duty to accommodate to the point of undue hardship.
What the law says
The Canadian Human Rights Act prohibits discriminatory practices in employment matters and in the provision of services, based on 11 grounds: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, or conviction for an offence for which a pardon has been granted, or in respect of which a record suspension has been ordered. In addition, the Employment Equity Act supports the taking of positive measures to redress disadvantages that may be suffered by four designated groups: women, Aboriginal peoples, persons with disabilities, and members of visible minorities.
The duty to accommodate
As an employer, the Government of Canada has a duty to accommodate to avoid discrimination in the workplace. The duty to accommodate is not about suiting employee preferences; it is about removing barriers related to the 11 prohibited grounds of discrimination, up to the point of undue hardship for the employer, where such barriers result in differential treatment.
Accommodation means adapting work duties and adjusting the work environment so that all employees can participate fully in the workplace. Accommodation also means providing equal access to job opportunities. For example, a person with a disability applying for work with the Government of Canada may request accommodation during a selection process.
Accommodation is different for each person, and employees should inform the employer of their needs and participate in developing solutions. Accommodation need not be perfect, but it must be reasonable.
All personal information about an employee’s accommodation is protected under the Privacy Act. Such information is shared only as required and with the consent of the employee.
Should Dirk Apply?
Dirk has a son in a program for children who have special needs, and he must pick his son up every weekday at 3:30 p.m.
Dirk comes across a job opportunity with the Government of Canada as an administrative assistant. The job notice does not mention specific hours of work, but Dirk wonders whether he should apply, as he routinely would have to leave work at 3:00 p.m. to pick up his son.
Should Dirk apply?
Yes. As a potential employee, Dirk should apply even though he has family caregiving responsibilities. Often employers are able to allow employees to care for a family member and do their work through flexible arrangements, even if there is no obligation to accommodate. And, in situations where the responsibility to provide care for a family member is beyond a personal choice, an employer may have a legal obligation to accommodate that employee and may be obligated to modify a rule, policy or practice accordingly.
Is there a legal duty to accommodate?
This would depend on the circumstances of Dirk’s situation, including whether Dirk has exhausted reasonable alternatives for care. It also depends on whether the employer could accommodate Dirk’s request without incurring undue hardship.
Conflicts between an employee’s work requirement and childcare obligations must meet the test of the Federal Court of Appeal in Canada (Attorney General) v. Johnstone before triggering an obligation to accommodate.
Policies on accommodation and on employment equity
As an employer, the Government of Canada has developed policies on accommodation and on employment equity:
- The Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service applies to persons with disabilities.
- The Employment Equity Policy applies to four designated employment equity groups (women, Aboriginal peoples, persons with disabilities, and members of visible minorities).
The policies apply to all federal organizations for which the Treasury Board is the employer (the core public administration).
The Treasury Board of Canada Secretariat offers resources on the duty to accommodate for employees and managers in the federal public service. Here are two of the main ones:
- The fundamentals—Duty to accommodate: Roles and responsibilities
- Duty to Accommodate: A General Process for Managers
The following also deal with accommodation and employment equity in the workplace:
- Canadian Human Rights Commission:
- Government of Canada Labour Program
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