Important Terms

The following are general definitions for important terms. The terms are discussed in more detail throughout the document.

Barrier:
A barrier is an element of the environment, including physical elements and emotional attitudes, that prevents a person with a disability from full participation in an activity (University of Prince Edward Island [UPEI], 2015).

Disability:
As stated in UPEI’s Academic Accommodation for Students with Disabilities policy, the term disability is defined as a functional limitation caused by a long-term or recurring physical, sensory, mental, physical or learning impairment that restricts the ability of a person to perform the daily activities necessary to participate in learning or daily living (UPEI, 2015). Disabilities covered in the PEI Human Rights Act include most physical and mental conditions that affect ability, and the Act covers both visible and invisible disabilities (PEI Human rights Commission [HRC], 2016b).

The Ontario Human Rights Commission notes that, “A disability may be the result of combinations of impairments and environmental barriers, such as attitudinal barriers, inaccessible information, or the barriers that affect people’s full participation in society” (Ontario Human rights Commission, n.d).

Invisible disability:
An invisible disability is a disability that is not noticeable or apparent to others. Invisible disabilities can include brain injuries, chronic pain, mental illness, diabetes, hearing impairments, gastrointestinal disorders, and many more. All of these conditions can disrupt everyday activities, but they are not obvious to others. Invisible disabilities may be overlooked and misunderstood (Rick Hansen Foundation, 2015; Magliano & Santuzzi, 2013).

Accommodation:
In this guide, accommodation refers to equipment, practices or policies that enable an employee with a disability to succeed in the workplace. Examples of accommodation include additional equipment or modifications to existing equipment (e.g. modified keyboards), flexible hours of work or modified work schedule, additional training, modified work environment (e.g. quiet areas) and customized work duties (Disability Alliance BC, 2016).

Duty to accommodate:
In Canada, employers have a legal obligation to “identify and eliminate any rules, policies, practices, facilities or equipment that may have a discriminatory effect against employees or potential employees [emphasis added] and limit their opportunities for employment” (WorkSafeNB, 2013; PEI HRC, 2016a; 2016b). This is referred to as the duty to accommodate.

Employers must accommodate the needs of individuals or groups (including employees) protected by the PEI Human Rights Act to the point of undue hardship. To successfully accommodate an employee, an employer must implement whatever means necessary (up to the point of undue hardship) to allow the person to work to the best of their ability. “To accommodate an employee may mean specific changes to the workplace environment, policies, and standards.” Accommodation can only be denied if a rule, standard or practice is based on a Bonafide occupational requirement and therefore cannot be changed (PEI HRC, 2016c; 2016d).

This legal obligation is mandated in all provinces and territories by provincial human rights acts.^[1] Federally-regulated workplaces are subject to the Canadian Human Rights Act through the Canadian Human Rights Commission.

Undue hardship:
Undue hardship means that accommodating the special needs of protected individuals (employees protected under the PEI Human Rights Act) imposes an unreasonable burden on employers. “What constitutes undue hardship will vary in each case, as will the factors taken into consideration.” For example, it is considered undue hardship if the accommodation affects the financial viability of the enterprise, or creates unsafe working conditions for one or more employees. In PEI, it is the employer’s responsibility to prove the existence of undue hardship as a result of providing an accommodation (PEI HRC, 2016c; 2016d).

According to the PEI Human Rights Act (PEI HRC, 2016c; 2016d), some common factors considered when determining if an accommodation constitutes undue hardship are:

• Health and safety concerns
• Unreasonable financial costs
• Morale of other employees in the workplace
• Financial viability of the enterprise
• Disruptions of a collective agreement
• The size of an enterprise limiting the interchangeability of the workplace

BFOR (Bona Fide Occupational Requirement):
A bona fide occupational requirement, or BFOR, is a job requirement or qualification that is essential to completing the job safely and efficiently. An employer would not be required to provide an accommodation if it can show that the specific job duty or requirement is a bona fide occupational requirement. For example, operation of a vehicle to transport equipment from one work site to another would qualify as a BFOR. Accommodating a worker who is blind would not be a reasonable expectation in this scenario (Disability Alliance BC, 2016).

Discrimination:
Discrimination is an action or decision that prevents a person or group from having an equal opportunity. Discrimination does not have to be intentional. For example, to not provide an employee with a reasonable accommodation can be considered discrimination (unless there is a case for undue hardship). Discrimination does not have to include differences in treatment. In fact, treating everyone the same when they are not the same can result in discrimination (UPEI, 2015)

Disclosure:
Disclosure refers to the act of making information about a disability known. In the employment setting, disclosure would be the act of an employee informing their employer about their disability (UPEI, 2015).

Employment equity/Equal opportunity employer:
Employment equity is the use of hiring policies that encourage fair representation of members of the four designated groups in Canada:

• women
• Aboriginal peoples
• persons with disabilities
• members of visible minorities

Employment equity encourages the establishment of working conditions and hiring practices that are free of barriers. According to the Government of Canada (2018), employment equity “promotes the principle that employment equity requires special measures and the accommodation of differences for the four designated groups”. Any employer that is regulated by the Federal Government of Canada has a legal obligation to comply with the Employment Equity Act and provide equal employment opportunities to the four designated groups listed above (Government of Canada, 2018).

References and Resources

Disability Alliance BC. (2016). Disclosing Your Disability: A Legal Guide for People with Disabilities in BC. Retrieved from http://disabilityalliancebc.org/disclosureguide/

Government of Canada. (2018). Employment equity in federally regulated workplaces.
Retrieved from https://www.canada.ca/en/employment-social-development/programs/employment-equity.html

Magliano, J. & Santuzzi, A.M. (2013). Invisible Disabilities. Psychology Today. Retrieved from

https://www.psychologytoday.com/us/blog/the-wide-wide-world-psychology/201306/invisible-disabilities

Ontario Human Rights Commission. (n.d). What is a disability? Retrieved from
http://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/2-what-disability#_edn22

PEI Human Rights Commission. (2016a). Duty to Accommodate. Retrieved from https://www.peihumanrights.ca/education-and-resources/duty-to-accommodate

PEI Human Rights Commission. (2016b). Prince Edward Island Human Rights Act. Retrieved from http://www.gov.pe.ca/humanrights/

PEI Human Rights Commission. (2016c). They’re Your Rights to Know: A Guide to the PEI Human Rights Act. Retrieved from http://www.gov.pe.ca/photos/original/YRTK.pdf

PEI Human Rights Commission. (2016d). Workplace Rights: A Guide to the PEI Human Rights Act for Employers and Employees. Retrieved from http://www.gov.pe.ca/photos/sites/humanrights/file/Workplace%20Rights-english-web.pdf

Rick Hansen Foundation. (2015). Let’s Talk About Invisible Disabilities. Retrieved from https://www.rickhansen.com/news-stories/blog/lets-talk-about-invisible-disabilities

University of Prince Edward Island. (2015). Academic Accommodations for Students with Disabilities. Retrieved from https://www.upei.ca/policy/adm/ss/gnl/0002

WorkSafeNB, New Brunswick Department of Post-Secondary Education, & New Brunswick Human Rights Commission. (2013). Accommodation at work. Retrieved from https://www2.gnb.ca/content/dam/gnb/Departments/hrc-cdp/PDF/guide-Accommodation-at-Work-2012.pdf