The Scope of the Duty to Accommodate

1. WHO: TO WHOM DOES THE DUTY APPLY?

• The obligation/responsibility to accommodate is primarily on the employer, but the Union (if applicable) and the accommodation-seeking worker also have certain legal duties connected to the process of accommodation.

• The right to be accommodated applies to all workers, regardless of unionization, and regardless of employee status or seniority.

a) It is owed to part-time employees: Golden Manor Home for the Aged and Ontario Nurses Association (1996) 53 LAC (4th) 353 (Davie).

b) It is owed to temporary employees: Canada Post Corporation v. Canadian Union of Postal Workers (Renich) (1998) 73 LAC (4th) 15 (Ponak).

c) It is owed to probationary employees: Treasury Board (Employment and Immigration Canada and Dekoning) (1993) 33 LAC (4th) 203 (Burke).

2. WHEN: WHEN DOES THE DUTY BEGIN AND END?

Employment Application/Interview/Hiring Process

• A job applicant does not have a duty to reveal information to a prospective employer that may classify the applicant by a prohibited ground of discrimination. (Rapson v. Stemms Restaurants Ltd. (1991) 14 CHRRD/449 (Ont. B of I)) (Quereshi v. G4S Security Services (Canada) Ltd (2009) OHRTD/428)

• The test for establishing a prima facie case of discrimination when the discrimination is the failure to hire the complainant requires an assessment of who was hired and their qualifications compared wit those of the complainant. (Oxley v. BCIT (2002) BCHRT 33) (Balhaddad v. Acetax Corp (No.2) (2006) BCHRT 210) (McGregor v. Morelli (2006) BCHRT 277) (Rahnama v. BH Allan Building Centre Ltd (No. 2) (2008) BCHRT 435)

The complainant must prove (a) that she was qualified for the particular employment; (b) that she was not hired; (c) that someone no better qualified but lacking the distinguishing feature which is the basis of the human rights complaint (i.e. sex, religion, race, etc) subsequently obtained the position; and (d) that the employer continued to seek applicants equal to the complainant respecting qualifications. (Shakes v. Rex Pak Ltd (1982) 3 CHRRD/1001) (Nixon v. Vancouver Rape Relief Society (2002) BCHRT 1, rep 42 CHRRD/20) (Israeli v. Canadian Human Rights Commission (1983) 4 CHRRD/1616)

• A case of discriminatory failure to hire is found in Morrison v. Adv-Care Home Health Services (2009) 68 CHRRD/8, where the complainant made out a prima facie case that the employer’s refusal to hire him was discriminatory, and the employer did not demonstrate a non-discriminatory justification for not hiring him. The Tribunal found that the employers actions had the “scent of stereotypical presumption” and that the employer decided that, because the complainant was a tall muscular man, he was aggressive and unsuitable and that the employer, therefore, discriminated against him on the basis of gender.

• The following case illustrates that stereotypes, not lack of ability, is often a huge barrier for persons with disabilities. The complainant W had cerebral palsy and applied for a room attendant positions at Woodlands Inn and Suites Hotel. His telephone interview went well, until the point where he mentioned that he had a disability requiring him to use a cane. After that, the interviewer became stiff and cold and, even though she promised to call him back to arrange an in-person interview, and despite his providing her with both his email and cell phone number, no call-back was received.

The issue was whether or not his disability played a role in the employer’s failure to call him back. On the evidence, the BCHRT member found that his disability DID play a role in the employer’s failure to call him back for a face-to-face interview and that he had been the victim of disability-related discrimination. He was awarded $5,000 for injury to dignity and 17,000 for wage loss. Winkelmeyer v. Ed Bulley Ventures Ltd., dba Woodlands Inn and Suites Hotel (unreported decision of BCHRT dated September 18, 2012), 2012 BCHRT 312 (CanLii)

• A person has the right to have her disability accommodated during the application/interview stage of the process, even before they are, technically, an employee. For example, in Trask v. Nova Scotia (Department of Justice, Correctional Services) (2010) NSHRBID No. 2, a job applicant with dyslexia and an adjustment disorder, manifested by anxiety and depression, was accommodated by being allowed an oral, rather than written exam, in the hiring process.
• If a person has been accommodated at this hiring stage, but has not been able to perform well enough to be awarded the position, the employer is not required to offer them a different job as part of its duty to accommodate.

For example, in MF v. Toronto Transit Commission (2009) OHRTD #51 (QL), a would-be bus driver with learning disabilities was accommodated by (a) being given extra time for written tests; (b) being given a private place to write the tests; (c) being given extra attention by the instructor; (d) being allowed to start the training again when she failed a required air brake test; (e) being provided with a personalized “learning plan”; (f) being assigned to an instructor who could work one-on-one with her; (g) being given time extensions; and (h) by the employer paying for a new assessment of her learning disability and her potential, conducted by an expert psychologist of the complainants choice, who said that …”the more demanding aspects of the Operator job are beyond her capactity to perfom them safetly and competently, thereby ensuring her personal safety and the public riding on her bus.”

The Tribunal found that the employer had fulfilled its duty to accommodate and that there is no obligation on a would-be employer to provide alternative employment if the applicant, with appropriate accommodation, is unsuited for the job.

After Being Hired

• The employer’s duty to accommodate begins at the point where the Employer has been made aware of the need for an accommodation, or where the circumstances are such that it ought to have known of such need.

• With respect to a particular worker at a particular point in time, the Employer’s duty ends either when that worker has been successfully accommodated or when the Employer can prove that it cannot accommodate that worker without incurring an undue hardship.

• Even though a worker may have been successfully accommodated at one point in his career, the duty to accommodate is an ongoing one; an employer may have to accommodate an individual a few different times over the course of her career, perhaps on the basis of different prohibited grounds of discrimination.

a) In Canadian Union of Postal Workers v. Canada Post Corporation, unreported award of Arbitrator Ponak dated July 1, 1995, an employee was accommodated through modified duties. His application to be transferred to a different shift was rejected, even though his seniority would have entitled him to the position. The Board upheld the grievance saying that, providing equal opportunities to disabled employees does not mean that a permanently disabled employee, once accommodated, must automatically be frozen forever in the same position, finding that the following factors could be relevant to an assessment of whether re-accommodation creates undue hardship:

i) How long the employee has been in the current position;
ii) How extensive and costly were the modifications of the current job;
iii) How extensive and costly are the modifcations likely to be in the new job;
iv) What impact is there likely to be on the other disabled employees who have yet to be accommodated;
v) On whose initiative was the the request for re-accommodation begun.

b) In Overwaitea Food Group-and-UFCWU, L.1518 (Ingenthorn) (2004) BCDLA 500.36.30.30-06, arbitor J. Hall upheld the fact that an employee who had been accommodated at one point in his career is not precluded from exercising his seniority rights and being re-accommodated through a job competition or lay-ff, where it will not cause undue hardship for the employer.

c) In Siemens VDO Automotive Inc. v. Canadian Auto Workers, L.1941 (Young) (2006) 154 LAC (4th) 372 (Watters) the grievor, who was restricted to working day shifts due to his type 1 diabetes, was denied a posting for a position that required the incumbent to engage in shift rotation, because of his medical restriction.

The arbitrator found that the employee’s duty was not extinguished by the fact that the employee was already being accommodated in another position, and that the employer had to consider whether further and reasonable accommodation could be achieved short of undue hardship.

• An employer’s on-going duty to accommodate continues while a worker is away from the workforce for a disability-related reason.

In Coca-Cola Bottling v. CAW L.385 (2011) OLLA #47 (Stephens), the issue of remedy arose after an arbitrator found that the employer breached its duty by not turning its mind to the accommodation for the period of time in which the grievor was involved in a Labour Market Re-entry Program operated by WSIB. The arbitrator found that (a) that the LMRP process did not relieve the employer from its obligation to accommodate the grievor when the basis for the LMRP i.e. the lack of appropriate work with the pre-disability employer, changes; and (b) that the employer was obliged to offer the grievor his former position when it became available, even though the grievor was in the LMRP.

(NOTE: The arbitrator was not prepared to find the union liable, as the employer argued, for failing to raise the issue of accommodation because the employer had relevant information, knew of the vacancies, and held the responsibility for accommodating the grievor. Accordingly, the grievor was awarded lost compensation from 2006 to 2008 when he was in the LMRP, and $18,000 damages for mental distress, one of the largest monetary remedies in an accommodation case by a Canadian arbitrator.)

• The duty to accommodate is an evolving one. For example, when an employee, an observant Jew, had been accommodated at work but became the victim of harassing remarks by co-workers and hate emails, the employer responded by telling her to report the incidents to the police and substantiate her absenteeism. The employer did nothing to deal with these concerns at the time they were raised because it apparently believed it had no duty to accommodate because the grievors secondment was coming to an end. LaBranche v. Treasury board (2010) CPSLRB #84 (Pineau)

3. WHERE: WHAT IS CONSIDERED THE WORK SITE FOR THE PURPOSES OF THE DUTY TO ACCOMMODATE?

a) Once an employer has concluded that there is no way that an employee can be accommodated with her own bargaining unit, the Employer must consider accommodations other in other bargaining units and in, certain circumstances, out-of scope or contract positions.

• In Dominion Color Corp (1999) OLAA #656 (Ellis), it was held that the duty to accommodate extends outside the bargaining unit; whether it is an undue hardship on the employer to do so is a question of fact.

• In Queens Regional Authority (1999) 78 LAC (4th) 269, it was held that an employer could accommodate a worker permanently outside the bargaining unit.

• In Hamilton Police Association v. Hamilton Police Services (2004) 76 CLAS 5 (QL), it was held that the Employer Police Board was entitled to accommodate disabled police officers in civilian bargaining unit positions.

• Kelowna (City) v. CUPE L. 338 (2003) BCCAA #72 (QL) (Lanyon), it was held that the duty to accommodate may require an employer to place someone outside of the bargaining unit.

b) Part of moving a worker into a pre-existing job may mean actually moving the worker to another workplace.

•In Overwaitea Food Group v. United Food and Commercial Workers, L.1518 BCDLA 500.36.30.30-08, a March 31, 2003 decision of arbitrator E. Burke, the grievor suffered from osteoarthritis, bursitis, and knee pain. Her doctor and her specialist recommended that she move to a particular store, which would reduce her travelling time from 3 1/2 hours to less than 20 minutes and would thus be best for her health.

The employer argued that the duty to accommodate did not extend beyond the worksite, outside of working hours, at a time when the grievor was not working and thus, it had no duty to accommodate pain that she experienced at the end of the work day in her car. The arbitrator said that what was at issue was whether it was a bona fide occupational requirement that every employee must work within an assigned location without any consideration of the commute its impact, and held that the duty to accommodate includes the consideration of the workplace location, the worker’s commute, the impact on the disability of the commute and the resultant ability of the grievor to perform the assigned work tasks.

c) Where the workplace itself is causing the grievor’s disability to worsen, an employer must consider moving the worker to a less stressful work site.