Undue Hardship

The duty to accommodate places an onus on the institution to find a way to accommodate the needs of the student unless doing so would cause undue hardship to the institution. In other words, undue hardship is the legal limit of the duty to accommodate.

While some degree of hardship may occur for institutions in accommodating student needs, inconvenience on its own is not a factor that defines undue hardship. There are three criteria for undue hardship:

[ 1 ] Cost

If the cost of an accommodation is so substantial that it would alter the essential nature of the enterprise, or so significant it would substantially affect its viability, it may not be the most appropriate accommodation (though an alternate accommodation would still need to be considered). Mere speculation about financial implications, however, is not generally sufficient, and evidence of undue hardship must be objective, real, direct, and quantifiable. For example, post-secondary institutions need to provide concrete evidence of the full cost of the accommodation and copies of financial statements that provide proof the cost cannot be borne.

[ 2 ] Outside sources of funding

To offset costs, institutions must take steps, wherever possible, to obtain grants, subsidies, and other sources of funding. Institutions can also consider cost-sharing and tax deductions. When available, students are expected to avail themselves of outside sources of funding to help cover expenses related to their own accommodation (e.g. the Bursary for Students with Disabilities through OSAP).

[ 3 ] Health and safety requirements

If an accommodation is likely to cause significant health or safety risks, it may not be the most appropriate accommodation (though an alternate accommodation would still need to be considered). An assessment of whether an accommodation would cause health and safety risks should use objective evidence to obtain an accurate understanding of the risk, as opposed to basing them on stereotypical views. When only the student is affected by the health and safety risk, the institution is obliged to explain the potential risk to the student so that they can assess whether or not it is acceptable. Removing a student with a disability from a learning environment for health and safety reasons must be done with genuine interest in maintaining a safe environment for all students and staff. It cannot be punitive and must use a proportionate response. The student is then entitled to periodic review of their accommodations and reassessment to determine if their disability status is subject to change.

Case example

Elena is a student who uses a motorised wheelchair . The university is worried that use of the motorised wheelchair could potentially create safety risks for other students. A staff team is put together to assess the actual risk and find ways to reduce the risk. The staff team determines that the safety risk is relatively low and creates a list of rules and regulations to be followed by all students, including Elena, to protect student safety.

No other factors, such as inconvenience, morale, third-party preferences, or collective agreements should be considered. Providing accommodations to students may take more time for instructors, especially when retroactive, but this cannot be the reason for denying the accommodation. It is also important to note that the onus of proof in these three criteria lie with the institution and not with the student.

Other limits on the duty to accommodate

There is not a limitless right to accommodation. Other than the criteria for undue hardship, the following are some other limits students might encounter in getting access to specific accommodations.

• If a specific accommodation would fundamentally alter the nature of the educational service, it would not be considered an appropriate accommodation
• If the student still cannot fulfill essential duties for the class, even after inclusive design has been considered, barriers removed, and accommodation options have been examined, tried, and exhausted.
• If the student, or their parent or guardian, does not participate in the accommodation process, for example by refusing to comply with reasonable requests for information.

There is a legal test for determining essential requirements of a class to ensure that they are not discriminatory by design. This test asks:

1. Is the requirement rationally connected to the task or purpose (vs. habit, tradition, ease)?
2. Is there evidence to support that the requirement is essential?
3. Is the requirement socially constructed such that it excludes specific groups for a reason that is irrelevant or based on assumptions about the group?

Case example

Alex is a student in your Public Speaking course who struggles significantly with social anxiety. They ask to be exempt from giving any presentations, but this accommodation is not deemed appropriate as it would alter the fundamental requirements of the course. Instead, Alex’s accommodation advisor works with the faculty to make sure that they are offered the option of presenting to a smaller group of 5 students at the end of class, for each of the presentations required in the course.