THE ACCOMMODATING WORKPLACE. Discrimination in accommodation, service and facility

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1 THE ACCOMMODATING WORKPLACE In 1999, the Supreme Court of Canada issued two significant decisions impacting on the obligation of employers and service providers to accommodate employees whose rights may be affected by workplace rules and policies. Section 8 of the Code provides: Discrimination in accommodation, service and facility (1) A person must not, without a bona fide and reasonable justification, (a) (b) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons. (2) A person does not contravene this section by discriminating (a) (b) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or on the basis of physical or mental disability, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance. Section 13 provides: Discrimination in employment (1) A person must not (a) (b) refuse to employ or refuse to continue to employ a person, or discriminate against a person regarding employment or any term or condition of employment

2 2 because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. (2) An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1). (3) Subsection (1) does not apply (a) (b) as it relates to age, to a bona fide scheme based on seniority, or as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan. (4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. The duty to accommodate is not expressly required in the Human Rights Code. It has, however, been interpreted as a requirement of the Code as a result of the decision of the Supreme Court of Canada in O Malley v. Simpson Sears Ltd. 1 In that decision, the Court distinguished between direct and indirect discrimination. Direct discrimination occurs where a rule or practice is discriminatory on its face. For example, a posting that required that applicants be female would be considered direct discrimination. An employer could defend the posting if it was able to demonstrate that there was a bona fide occupational requirement that only females be employed in the position. On the other hand, a rule or practice that was on its face neutral, which posed a burden on individuals within one of the enumerated categories, was considered indirect, or adverse effect discrimination. For example, while a requirement by an employer that employees be available for work seven days a week is not, on its face discriminatory, it may have a discriminatory application to employees whose religious beliefs require them to observe a day of rest. Where indirect or adverse effect discrimination was demonstrated, the obligation of the respondent to such a claim would be to demonstrate that it would pose an undue hardship to accommodate the individual circumstances of the complainant. In practice, however, it was often difficult to determine which type of discrimination had occurred. Particularly in the case of disability, the test was difficult to apply. For example, our firm was involved in a case before the Human Rights Tribunal where the 1 O Malley v. Simpson Sears Ltd. [1985] 2 SCR 536

3 3 employer had not re-engaged a seasonal contractor who had been diagnosed with bipolar disorder. The issue was whether the alleged discrimination could be characterized as direct discrimination (a rule that the employer would not engage persons with mental disabilities) or adverse effect discrimination (a neutral rule that all contractors would be required to perform assigned duties in a manner that would not compromise safety). In reviewing prior Human Rights decisions, we found that approximately 50% had characterized similar cases as direct discrimination and 50% as indirect discrimination. In two decisions rendered in 1999, the Supreme Court of Canada decided that the same results should apply no matter what type of discrimination was alleged. 2 The New Test Following these decisions, the issues that will be considered by a Human Rights Tribunal, or an arbitrator under a collective agreement, considering an allegation of discrimination, will be as follows: 1. The complainant will be required to show that he or she has been prejudiced by the actions of the respondent. 2. The complainant will be required to show that the actions complained of fall within the prohibited grounds of discrimination. The respondent (the employer or service provider) will then have to demonstrate that: 3. The rule or practice adopted was for a purpose rationally connected to the outcome (i.e. the performance of the job). 4. The particular standard was adopted in an honest and good faith belief that it was necessary for the fulfillment of the legitimate purpose. 5. The standard is reasonably necessary to the accomplishment of that purpose. To meet the third stage of the test, the respondent must demonstrate that it would be impossible to accommodate the claimant (or person showing the characteristics of the claimant) without undue hardship, whether in the form of impossibility, serious risk or cost. The new standard applies to all prohibited grounds enumerated in the Human Rights Code. 2 British Columbia (Public Service Employee Relations Commission v. BCGEU [1999] SCJ No. 46 and Grismer v. The British Columbia Counsel of Human Rights et al [1999] SCJ No. 73 (QL)

4 4 To better understand the test established by the Supreme Court of Canada,, we will demonstrate how the Court applied the test in the Grismer decision. Mr. Grismer was a BC resident who suffered from a disease which affected his peripheral vision. Mr. Grismer applied for a driver s licence and was refused the licence based on a policy of the Superintendent of Motor Vehicles that persons with Mr. Grismer s condition would be denied a driver s licence. Mr. Grismer filed a complaint with the BC Human Rights Commission. Ultimately, the Supreme Court of Canada made the following findings: 1. Mr. Grismer had been prejudiced by the determination that he could not have a driver s licence as a result of his disability. 2. The ability to obtain a driver s licence is a service customarily available to the public under Section 8 of the Human Rights Code and the refusal to provide Mr. Grismer with a licence was based on his disability. 3. The Superintendent s policy was established based on concerns about drivers safety; a purpose rationally connected to the obtaining of a driver s licence. 4. The standard was established based on recommendations of a panel of medical doctors, on their assessment that persons with Mr. Grismer s condition would be unable to drive safely. This standard was adopted, therefore, in an honest and good faith belief that it was necessary for the fulfillment of the purpose, that being drivers safety. 5. The Superintendent of Motor Vehicles failed to demonstrate that it would be impossible to accommodate all individuals with Mr. Grismer s condition. Specifically, there was evidence that Mr. Grismer was able to take steps to compensate for his disability. Further, the Superintendent of Motor Vehicles was unable to demonstrate that Mr. Grismer could not be individually tested to determine if he could drive safely. The Supreme Court of Canada did not find that Mr. Grismer should have a driver s licence. Rather, the Supreme Court of Canada found that Mr. Grismer should have an opportunity to demonstrate that he could compensate for his disability and drive within the safety requirements established by the Superintendent of Motor Vehicles. The Court also concluded that the Superintendent of Motor Vehicles did not demonstrate that such testing would pose undue hardship. The Court recognized that there may be circumstances where it could be demonstrated that no accommodation could ever be available and gave as an example, using current technology, that it may be possible to demonstrate that no person who is totally blind could drive a motor vehicle safely.

5 5 THE DUTY TO ACCOMMODATE IN THE CONTEXT OF DISABILITY What is a Disability? The Human Rights Code does not provide a definition of disability, however, one human rights adjudicator has given the following definition: The concept of physical disability, for human rights purposes, generally indicates a physiological state that is involuntary, has some degree of permanence and impairs the person s ability, in some measure, to carry out the normal functions of life. 3 Adjudicators have found that tooth decay, obesity, anger and substance addictions, including smoking, may constitute a disability. In many cases, the question of whether an individual has a disability may be dependent on the circumstances. One court has held that common and temporary ailments that do not limit an individual s ability to take part in community life (or work) on an equal level with others do not constitute a disability. 4 Perhaps more significantly, the Supreme Court of Canada has recently found that it may be discriminatory to distinguish, exclude or prefer a person based on a perceived handicap. 5 In that case, the Court was considering the definition of handicap under the Quebec Charter of Rights and Freedoms, however, we anticipate that the same reasoning would be applied to the definition of disability in the BC Human Rights Code. The Court held: A handicap may be real or perceived, and a person may have no limitation in every day activities other than created by prejudice and stereotype. Courts will, therefore, have to consider not only an individual s biomedical condition, but also the circumstances in which the distinction is made. A handicap may exist even without proof of physical limitation or other ailments. The emphasis is not on the effects of the distinction, exclusion or preference rather than the precise cause or origin of the handicap. The Duty to Accommodate Employees or Applicants 3 Boyce v. New Westminster (City) (1994) 24 CHRRD/441 (BCCHR) at D/446 4 New Brunswick v. Griffin s Pub Ltd. [2005] NBJ no 476 (NBQB) 5 Quebec (Commission des droits de la personne et des droits de jeunesse) v. Montreal (City) [2000] SCC 27 (QL)

6 6 In determining whether it would impose undue hardship on an employer to accommodate the individual employee, the following factors may be relevant: a. the cost of the modification; b. the size of the employer s obligation; c. the disruption, if any, to the collective agreement; d. the morale of other employees; e. safety issues; and f. the interchangeability of the work force and facilities. However, the Courts have also indicated that safety issues, particularly where it is the safety of others that is at issue, and costs will be the most significant factors. In Grismer, the Court stated that it will be reluctant to find that no accommodation is necessary simply because of the cost of providing the accommodation. Further, Tribunals are reluctant to accept impressionistic evidence and prefer evidence of actual cost that would be incurred as a result of implementing an accommodation. The obligation does not require, however, that an employer provide the accommodation requested by the employer, or provide the best possible accommodation. Rather, an employer s obligation is to provide a reasonable accommodation. Arbitrators have held, for example, that an employer is not required to promote an employee as a form of accommodation or to bump another employee from their position or to create a position that otherwise would be unnecessary to the work force. Neither must an employer provide a preference to an employee with a disability, for example, by laying off a more senior employee. The duty to accommodate requires, therefore, both the employer and the employee (and unions in unionized work places) to consider reasonable modifications to the employee s job duties to allow the employee to function in their position. The employer must implement such appropriate and reasonable modifications to the point of undue hardship. A common thread through many cases is a requirement that, before decisions are made to terminate or otherwise limit the duties of a person with a disability (or perceived disability), the employer should make efforts to obtain medical information from the employee s doctor addressing the nature of the disability, the prognosis and the limitations the disability imposes on the employee s ability to perform the duties of their position. However, the B.C. Court of Appeal has stressed that an employer need not rely on medical evidence alone in deciding whether an employee may be accommodated. The Court noted that the employer may be in the best position to assess what risks may flow to the employee, his or her co-workers or members of the public if the employee returns

7 7 to work. As well the employer is entitled to rely on their own observations of the employee s abilities. The Court re-asserted that the duty to accommodate requires a common sense rather than a rigid approach, and that employers must take account the full legal framework in which they operate. 6 Where an employee (or prospective employee) requires some form of accommodation for a disability, we recommend the following steps: a. request that employee produce medical evidence of the disability and the limitations imposed on their ability to perform the duties of their job; b. ask the employee what forms of accommodation they believe would allow them to perform the duties of their job; c. brainstorm all forms of accommodation that may allow the employee to continue to perform the duties of their job; d. select a form of accommodation which would achieve the necessary results with the least cost and least disruption; e. if the accommodation selected would require some exemption from collective agreement language, seek the approval of the Union to the accommodation proposed; f. implement the accommodation. Forms of accommodation may include: a. physical aids (back supports, large screen monitors, ergonomic work stations); b. modification of the shift schedule (day shift only, half days, alternate days); c. modification of duties (reassigning duties such as heavy lifting to other employees); d. reassigning the employee to another (vacant) position; e. maintaining the employment relationship during a period of total disability. We are often asked by employers if it is ever appropriate to terminate the employment of an employee who is unable to attend at work. Such a decision should rarely be made without the benefit of a medical diagnosis indicating whether there is any reasonable likelihood of the employee returning to work within a reasonable period of time. Where 6 Oak Bay Marina Ltd. v. British Columbia (Human Rights Commission) (2002) BCCA 495 (BCCA)

8 8 the evidence demonstrates that there is little chance that the employee will return to work within a reasonable time, an employer may meet the onus of proving undue hardship. 7 The Role of the Parties THE EMPLOYEE: 1. disclose the nature of the disability and impact on their ability to perform duties, and, where necessary, provide medical evidence of same; 2. be reasonable in their expectations; 3. accept appropriate accommodations. THE EMPLOYER: THE UNION: 1. inform itself of the limitations arising from the disability; 2. conduct a full and comprehensive search of the range of possible accommodations; 3. accommodate to the point of undue hardship; 4. consult with the Union if the accommodation affects a collective bargaining right (such as seniority); 5. educate other employees about the duty to accommodate. 1. not unreasonably deny an accommodation that affects a collective bargaining right. The Duty to Accommodate in Services and Facilities The obligation to accommodate does not extend solely to employees. It is also required by the Code that the services and facilities provided to members of the public are not discriminatory. For example, one decision of the BC Human Rights Tribunal has found that it was discriminatory for a theatre to require a patron in a wheelchair to purchase a ticket at an entrance that was not wheelchair accessible and then go to a locked and 7 Hydro Quebec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'hydro- Québec[2008], 2SCR 561

9 9 unstaffed entrance to obtain access to the theatre. This discriminatory activity resulted in an award of $4, for injury to dignity, feelings and self-respect. 8 Accordingly, where a disability affects a member of the public s access to a service or facility, the service provider should ensure that some reasonable accommodation is provided to enable the individual to have access. In the context of services and facilities, forms of accommodation may include: a. providing sign language interpreters; b. modifying the physical layout of building; c. providing additional staff to assist persons with disabilities; d. using specialized equipment to increase access. Limits of the Duty to Accommodate In the first few years after the Supreme Court of Canada s seminal decision in Grismer, arbitrators and human rights tribunals helpfully described some limits to an employer s duty to accommodate, for example, in the case of disability. Many arbitrators and adjudicators made statements to the effect that an employer would not have to dismiss another employee to accommodate a disabled employee or that an employer would not have to create a new position consisting entirely of duties that a disabled employee could perform. More recently, however, we are seeing decisions that suggest that employers cannot rely on such parameters absolutely and must be able to defend decisions based on the specific circumstances of the case at hand. While dismissing another employee to accommodate a disabled employee should not become a routine expectation of employers, it can no longer be discounted as a potential form of accommodation. The Supreme Court of Canada re-confirmed that while employers may reasonably create workplace rules or practices that purport to limit the extent of their duty to accommodate in certain circumstances, the employer must still assess whether the specific employee to whom the rule applies may be accommodated. 9 In the case in question, the Court found that an agreement between the employer and the union that established a maximum period of time for an employee s absence due to illness was not discriminatory, but could be applied discriminatorily if the employee s individual circumstances were not considered. 8 Miele v. Famous Players Inc. [2000] BCHRTD No. 6 9 McGill University Health Centre [2007] 1 SCR 161

10 10 An Employer s Duty to make Inquiries There has always been some tension between human rights obligations and an employee s privacy rights, again, specifically, in the area of disability. Employers must walk a fine line between obtaining appropriate operational information that will allow the Employer to properly accommodate an employee s disabilities while at the same time not seeking confidential diagnostic information. In recent years, the BC Human Rights Tribunal has placed a greater onus on an employer to ask what may be seen as invasive questions of employees, when the employer has a reasonable basis for concern about the employee s health and safety in the workplace. 10 For example, the BC Human Rights Tribunal imposed a duty on an employer to make inquiries about an employee s mental health in circumstances where the employee previously had been off work on a period of leave relating to stress, where the employee s performance appeared to be negatively impacted at the office, and where there were occasions in which the employee was tearful in the office. This duty was imposed even though the employee had previously provided medical confirmation that she was ready to return to work. In that case, the Tribunal found that the employer had a reasonable basis to suspect that the employee s performance was being impacted by her health. 11 Disciplinary Matters Culpable, Non-Culpable and Hybrid Labour arbitrators have recently developed an approach to determining circumstances in which an employer has a duty to accommodate an employee who has committed a workplace offence, normally subject to discipline. In the union context, a distinction has arisen between culpable, non-culpable and hybrid behaviour. Culpable behaviour is behaviour for which the employee is entirely responsible. In the context of disability, the fact that an employee has a disability does not excuse misbehaviour in the workplace where there is no link between the disability and the behaviour. On the other hand, there are certainly circumstances where misbehaviour may be entirely excused by an employee s disability. An example may be an employee who has fainted while at his workstation. Many cases, however, fall into what is described as a hybrid model. In this model, the disciplinary offence may in some way be affected by the disability but may not be excused by the disability. An example may be an addicted employee who steals from her 10 Toivanen v. Electronic Arts (Canada) [2006] BCHRTD No Morris v. BC Rail [2003] BCHRT No Kemess Mines Ltd and IUOE, Local 115 (2005) 139 LAC (4 th ) 305 (Munroe) 13 HEABC [2005] BCCAAA No. 183 (Jackson)

11 11 employer to sustain the addiction. In such a case, it is the employer s responsibility to assess the degree of responsibility that the employee has for her actions to determine whether discipline is appropriate or whether the employer should consider some form of accommodation of the employee s illness to prevent reoccurrences of the behaviour. While this model has not been fully adopted by the human rights tribunals, the exercise may still be useful in defending a human rights complaint. The Employee s Duty to Participate in the Accommodation Process Another trend in the decisions emerging in the area of the duty to accommodate is the increasing tendency of adjudicators to find that employees who do not co-operate in the process of accommodation may forfeit their right to be accommodated. 14 For example, an employee who refuses to provide medical information to their employer, outlining the limitations on his ability to perform the duties of the job arising from a disability, may have no basis to complain if the accommodation he seeks is not granted. Similarly, the cases continue to confirm that an employer s duty is to provide a reasonable accommodation and not necessarily the specific accommodation sought by the employee. While it will be incumbent on the employer to demonstrate that the accommodation offered was reasonable in all the circumstances, an employee may not refuse the accommodation offered and claim some preferred option. One area where there remains some tension, however, occurs where an employer makes inquiries of an employee who denies that he/she has a medical condition. It is often accepted that one of the symptoms of addiction related disabilities is a denial of the addiction. Even where an employer has asked an employee and the employee has denied that he suffers from any form addiction (or other mental health concern) a prudent employer may still seek a medical opinion confirming the employee s response before taking any form of action against the employee. Common Themes in Recent Decisions Although many decisions in the area of the duty to accommodate may seem, at first glance, to be contradictory, two common themes emerge. First, in all cases where an accommodation is sought, employers should ensure that they have adequate information about the individual s unique circumstances before relying on an established rule, policy or practice to deny any form of accommodation. Second, where the accommodation sought is on the basis of a disability, the employee should be asked to provide an opinion from their treating physician addressing the impact the disability will have on the employee s ability to perform the duties of their position. 14 Kamloops (City) and CUPE Local 90 (2004) 134 LAC (4 th ) 142 (DeRosa)

12 12 Adjudicative Statements Concerning the Principles of Accommodation 1. The legal test for the existence of undue hardship is onerous, as it requires employers to go well beyond organizational inconvenience and increased cost A mere statement, without supporting evidence, that the cost or risk of accommodation is too high, based on impressionistic views or stereotypes will not be sufficient to meet the standard of undue hardship It is not enough for an employer simply to take a tour of the horizon of jobs in the plant and then eye-ball the injured worker to see if he/she might fit into one of those jobs. It is an obligation worth emphasizing that an employer must SERIOUSLY APPLY ITS MIND to the issue of Accommodation. Specifically, the employer must: a. assess the strengths, capabilities, limitations and prognosis of the injured worker; b. conduct an accurate analysis of the physical requirements of each available job the injured worker might be assigned to on the basis of seniority and ability; c. synthesize #1 and #2 before coming to a judgment on whether the injured worker could or could not be re-integrated to employment; and d. concomitantly determine if any existing job could be sculpted for a period of time to fit the injured, but recovering, worker. 17 CONCLUSION The right of individuals to seek accommodations that will allow them to access employment and services is an evolving right. The extent to which an employer or service provider must go to accommodate persons with disabilities will be determined on a case-by-case basis. Particularly in the case of public bodies, mere inconvenience or cost will not excuse a refusal to provide any form of accommodation. We strongly recommend ensuring that your employees and, in particular, your mangers, are aware of their obligations to co-workers and members of the public so that accommodation issues may be resolved promptly and co-operatively. 15 CUPW and Canada Post [2004] CLAD No. 510 (Thistle) 16 Ahkwesahsne Police Association and Mohawk Council of Ahkwesahsne [2003] CLAD 642 (Chapman) 17 Dominion Castings [2000] OLAA No. 714 (Murray)

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