You’re Asking for What!?:Recent Developments and Limits

on the Duty to Accommodate

Wendy-Anne BerkenboschDan Black

11412473.2

Introduction

• Most employers are well aware of the need to avoid discrimination and to accommodate employees to the point of undue hardship.

• This morning we will briefly discuss:

• basic principles regarding the duty to accommodate; and

• recent examples of limits on the duty to accommodate.

Human Rights Legislation

• The Ontario Human Rights Code provides that:

• every person has a right to equal treatment with respect to employment without discrimination based on certain protected grounds; and

• every person who is an employee has a right to freedom from harassment in the workplace based on certain protected grounds.

The Employer’s Duty to Accommodate

• Once the employee establishes discrimination, the onus shifts to the employer to establish that the work rule or standard in question is based on a bona fide occupational requirement (BFOR).

• As we all know, in a case called Meiorin, the Supreme Court of Canada set out a three part test for establishing a BFOR:

The Employer’s Duty to Accommodate

1. the standard was adopted for a purpose rationally connected to job performance;

2. the standard was adopted in a good faith belief that it was necessary to fulfil a legitimate work-related purpose; and

3. the standard is reasonably necessary to the accomplishment of the legitimate work-related purpose and the employee cannot be accommodated without undue hardship.

Undue Hardship

• Some hardship is acceptable; it is only undue hardship that satisfies the test.

• If the proper operation of the business is excessively hampered or the employee is unable to work for the reasonably foreseeable future, the standard of undue hardship will be met (Hydro-Quebec decision).

The Employee’s Duty to Assist

• The employee is required to assist and actively participate in the accommodation process.

• Generally, the employee must:

• request accommodation;

• provide reasonable information;

• undergo reasonable treatment; and

• facilitate reasonable accommodation.

Example 1: Dishonesty

• 20 year employee dismissed after stealing $910 and reinstated under last chance agreement

• employee lied about having medical condition to delay return to work – dismissed again

• union argued dishonesty was due to mental illness –employee was “cognitively impaired”

• does the employer have to accommodate?

OPESU v. Ontario (Liquor Control Board) (Ont. Grievance Settlement Board, 2011)

• no; although employee had adjustment disorder, it was not cause of misconduct

• arbitrator accepted employer’s medical evidence that employee not cognitively impaired

• employee had ability to choose to act otherwise

• shows importance of adequate medical evidence

Example 2: Inappropriate Behaviour

• employee had bipolar disorder

• employer permitted flexible hours and breaks, work from home and restructured tasks

• during manic phase, employee became aggressive, argumentative and disruptive

• employee placed on paid sick leave and required to obtain treatment and assessment

• breach of duty to accommodate?

Yukon HRC v. Yukon (C.A., 2010)

• no; employer’s actions not based on stereotypes

• had successfully accommodated for 6 years

• employer attempting to assess whether employee’s actions due to medical condition

• confirms general right to seek medical information

Example 3: Unearned Promotion

• employee suffered on the job injury; various attempts to accommodate

• employee requested group leader position; employer declined

• employee refused alternative position, then retired and filed complaint

• was employer obliged to promote?

Ellis v. General Motors (OHRT, 2011)

• no; employer not obliged to offer undeserved promotion

• duty to accommodate does not require employer to promote employee to position employee not otherwise entitled to

• doing so would extend duty to accommodate beyond ensuring equal treatment

Example 4: Preferred Work Location

• employee was lesbian correctional officer who refused to conduct strip searches on female offenders

• employee wanted to be accommodated in current position at all-female facility

• employer offered accommodation at all-male facility, where female searches not required

• was employer’s offer reasonable?

OPSEU v. Ontario (Ont. Grievance Settlement Board, 2011)

• yes; position offered was reasonable

• employee not entitled to preferred or most appropriate accommodation

• employer not required to consider employee’s non-work activities (union executive, committee membership) in making accommodation decision

Example 5: Lack of Documentation

• teacher wanted assignment to library position and exemption from performance review

• employer repeatedly requested up-to-date medical documentation to support options:

• application for LTD benefits;

• employer’s RN to contact teacher’s doctor; or

• independent medical examination

• no up-to-date info, so employment terminated

• was employer’s termination unlawful?

Baber v. York Region District School Board (OHRT, 2011)

• no; an employee seeking accommodation has a reciprocal duty to co-operate

• employee must provide reasonable amount of information about physical and/or mental work restrictions and disability-related needs

• teacher’s failure to co-operate by providing medical information meant no breach of duty to accommodate by employer

Key Points

• The employee bears the initial burden of showing that he or she is entitled to accommodation.

• The duty to accommodate requires employers to individually assess and manage each employee’s circumstances to determine if the employee can be accommodated to the point of undue hardship.

Key Points

• The employee is entitled to reasonable accommodation.

• The employee is not entitled to the most appropriate or perfect accommodation.

• The employee is not entitled to dictate the accommodation that he or she will accept.

Key Points

• The employee has a duty to accept reasonable accommodation, even if it is not the employee’s preferred or ideal solution.

• While the cases we have discussed today are encouraging, remember that each case turns on its own facts and accommodation decisions should be made very carefully.

Questions?