You’re Asking for What!?: Recent Developments and Limits on the Duty to Accommodate Wendy-Anne Berkenbosch Dan Black11412473.2
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 Accommodate1. 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; and3. 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.