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1 Canadian Lab. L.J. 1 (1992)

handle is hein.journals/canlemj1 and id is 1 raw text is: THE DUTY TO ACCOMMODATE: A PURPOSIVE APPROACH M. David Lepofsky* The duty to accommodate is critical to the fight for equality for the dis- advantaged. In this paper, David Lepofsky provides an overview of the duty to accommodate and argues that it is vital to approach that duty in a pur- posive way. In Lepofsky's view, the purposes of the duty include overcom- ing systemic discrimination, protecting against direct and intentional dis- crimination, enhancing respect for the individual in society, and fostering public tolerance. According to Lepofsky, the core of any accommodation is the tailoring of the work rule, practice, condition or requirement to the specific needs of the affected individual or group. The duty to accommodate has both proce- dural and substantive elements, requiring consideration of the validity of the substantive reasons for the failure to accommodate, as well as the suffi- ciency of the deliberative and investigative process in response to a request for accommodation. The critical factor, however, is undue hardship. This involves an examination of the substantive reasons for declining to accom- modate, an evaluation of whether the adverse effects of accommodation are factually based, and if so, an assessment of whether the adverse impact amounts to undue hardship. The author responds to what he identifies as six prevalent misconcep- tions about the duty to accommodate: contrary to what some may believe, he argues that the duty is not restricted to cases of indirect or adverse effect discrimination; that the duty produces benefits for employers; that differential treatment is necessary to attain the goal of equality of opportu- nity; that it is far less onerous to employers than many other regulatory burdens; and that the focus on individual rights does not run contrary to group rights. Lepofsky concludes by stating that the duty to accommodate is a legal response which cannot, in and of itself, overcome all barriers to full partic- ipation in the community. It does, however, make an important contribu- tion to advancing the goals of human rights legislation. Mr. Lepofsky is counsel with the Constitutional Law and Policy Division of the Min- istry of the Attorney General for Ontario. This article is written in the author's person- al capacity. It does not purport to represent the views of Ontario's Attorney General or his Ministry.

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