What factors are relevant in determining whether undue hardship is undue?

British Columbia, Canada


The following excerpt is from Nixon v. Vancouver Rape Relief Society, 2002 BCHRT 1 (CanLII):

In Meiorin, Madam Justice McLachlin referred to some of the factors which were enumerated in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489 (at p. 520-21) as being relevant in determining whether hardship is undue. She suggested that, in so doing, courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. She stated: The skills, capabilities and potential contributions of the individual claimant and others like him or her must be respected as much as possible. Employers, courts and tribunals should be innovative yet practical when considering how this may best be done in the particular circumstances. (para. 64) She then sets out a series of questions to be asked: Has the respondent investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard? If alternative standards were investigated and found to be capable of fulfilling the respondent's purpose, why were they not implemented? Is it necessary to have all individuals meet the single standard for the respondent to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established? Is there a way to do the job that is less discriminatory while still accomplishing the respondent's legitimate purpose? Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies? Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?

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