THE DUTY TO ACCOMMODATE: WHO WILL BENEFIT?

Abstract

This article describes the development of the duty to accommodate in Canadian jurisprudence, attempts to untangle to doctrinal knots associated with it, and considers the conceptual weaknesses inherent in the idea. Although much has happened in human rights jurisprudence in the last twenty years, the concept of accommodation is not yet fully developed. So far, the Supreme Court of Canada has dealt with accommodation in religious and age discrimination cases only. It is not clear whether the duty to accommodate will apply to other grounds, such as disability, race, and sex similarly. Nor is it clear that it should. The authors argue that the "reasonable accommodation "framework lacks the capacity to address inequality and foster inclusive institutions. It is flawed by implicit acceptance that social norms should be determined by more powerful groups with manageable concessions being made to those who are "different". The authors posit that accommodation jurisprudence can be rescued but only if adjudicators and courts reject a "sameness/difference" paradigm as inadequate to address issues that in fact concern group-based inequalities in power.