What is a disability?
Disability is defined as any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect, or illness and, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device. "Disability" also includes a condition of mental impairment or a developmental disability, a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, a mental disorder, or an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act.
York University Policy
Pursuant to its commitment to sustaining an inclusive, equitable community in which all members are treated with respect and dignity, and consistent with applicable accessibility legislation, York University shall make reasonable and appropriate accommodations in order to promote the ability of students with disabilities to fulfill the academic requirements of their programs, and for employees to fulfill the essential requirements of their positions. York University's policy aims to eliminate systemic barriers to participation in academic activities by students with disabilities, and in employment by workers with disabilities.
What is the duty to accommodate?
The goal of accommodation is to ensure that an employee who is able to work can do so, and that a student who is able to study can do so. In practice, this means that the employer or school must accommodate the employee or student in a way that, while not causing the employer undue hardship or compromising academic integrity, will ensure that the employee can work or that the student can study. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work or study are not unfairly excluded where working or learning conditions can be adjusted without undue hardship.
The test is not whether it was impossible for the employer or school to accommodate the employee's or student's characteristics. The employer or school does not have a duty to change working or learning conditions in a fundamental way. However, they do have a duty, if they can do so without undue hardship or comprising academic integrity, to arrange the employee's workplace or duties, or the student's learning environment or modes of evaluation or instruction, to enable the employee to do his or her work, or the student to complete a program of study.
The search for accommodation is a multi‑party inquiry, involving the employer/service provider, the person seeking accommodation, and a trade union where applicable. The employer or service provider has a duty to accommodate. A person seeking accommodation also has a duty to assist in securing an appropriate accommodation and his or her conduct must therefore be considered in determining whether the duty to accommodate has been fulfilled. When an employer or service provider has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the person seeking accommodation has a duty to facilitate the implementation of the proposal. A person seeking accommodation is also obligated to accept reasonable accommodation and the employer's or service provider's duty is discharged if a proposal that would be reasonable in all the circumstances is turned down.
The concept of undue hardship is one basis on which the duty to accommodate may be limited. The onus lies on the service provider or employer, who has failed to accommodate a person with disability, to prove undue hardship with evidence. An employer or school must take reasonable measures short of undue hardship to accommodate an employee or student. The use of the term "undue" infers that some hardship is acceptable. More than a mere negligible effort is required. The sometimes-expressed qualification that the measures be "reasonable" was an alternate way of expressing the same concept and is a question of fact varying with the circumstances of the case.
Undue hardship can be established where a standard or barrier is reasonably necessary insofar as there is a sufficient risk that legitimate objectives like safety, or academic integrity, would be threatened enough to warrant the maintenance of the discriminatory standard.
The point of undue hardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation remain.
A service provider’s or employer's refusal to spend a small proportion of the total funds available to it in order to remedy a barrier to access will tend to undermine a claim of undue hardship. Therefore, the size of a service provider’s or employer's enterprise and the economic conditions confronting it are relevant. Substantial interference with a service provider’s or employer's business enterprise may constitute undue hardship, but some interference is an acceptable price to be paid for the realization of human rights. A service provider’s or employer's capacity to shift and recover costs throughout its operation will lessen the likelihood that undue hardship will be established.
The factors that will support a finding of undue hardship are not entrenched and must be applied with common sense and flexibility.
Conflicting Rights and Attitudinal Barriers
Well‑grounded concerns that the rights of other students or employees will be negatively affected by a proposed form of accommodation must be considered. Objections based on attitudes inconsistent with human rights, however, are irrelevant.
Accommodation enables persons with disabilities to access employment, public services, and facilities as independently and seamlessly as possible, in the same way as any employee or student, to the extent possible. It is a fundamental human right for persons with disabilities to have independent access to employment and services in the same comfort, dignity, safety, and security as those without disability-related limitations.
This is the goal of the duty to accommodate: to render employment, as well as those services and facilities to which the public has access, equally accessible to people with and without limitations. However, it should be kept in mind that segregated treatment in services or employment for people with disabilities is less dignified and is unacceptable, unless it can be shown that integrated treatment would pose undue hardship or that segregation is the only way to achieve equality. Integration should be recognized as the norm of general application because of the benefits it generally provides.
Any reasonable alternative form of accommodation must respect the dignity of the person with disabilities.
The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee or student, and the specific circumstances in which the decision is to be made. Throughout the employment relationship or educational relationship, the employer or school must make an effort to accommodate the employee or student.
Duties and Responsibilities
As the accommodation process is a shared responsibility, everyone involved should co-operatively engage in the process, share information and consider potential accommodation solutions. The person with a disability is required to:
- make accommodation needs known to the best of their ability, preferably in writing, so that the person responsible for accommodation can make the requested accommodation
- answer questions or provide information about relevant restrictions or limitations, including information from health care professionals (but disclosure of diagnoses is not required)
- take part in discussions about possible accommodation solutions
- co-operate with any experts whose assistance is required to manage the accommodation process or when information is needed that is unavailable to the person with a disability
- meet agreed-upon performance standards and requirements, such as job standards or academic standards, once accommodation is provided
- work with the accommodation provider on an ongoing basis to manage the accommodation process.
The accommodation provider is required to:
- be alert to the possibility that a person may need an accommodation even if they have not made a specific or formal request
- accept the person’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
- get expert opinion or advice where needed (but not as a routine matter)
- take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions
- keep a record of the accommodation request and action taken
- communicate regularly and effectively with the person, providing updates on the status of the accommodation and planned next steps
- limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request
- consult with the person to determine the most appropriate accommodation
- implement accommodations in a timely way, to the point of undue hardship
- bear the cost of required accommodation.
Accommodation concerns and complaints should be directed to the Centre for Human Rights, Equity and Inclusion. You may also refer to:
York Policies / Procedures / Guidelines