Procedural Aspects of the Employer’s Duty to Accommodate in the Accommodation Process:
The Duty to Inquire
1. The Supreme Court of Canada’s 1992 Renaud decision established that an accommodation-seeker is under a duty to disclose sufficient information to her employer to enable it to fulfill its duty to accommodate; and employer cannot accommodate something of which it is unaware.
2. An employer can rely on information that it had in its possession at the time of its alleged discriminator at (usually termination), rather than information acquired post-termination, as per the Supreme Court of Canada in Quebec Cartier.
3. An employer cannot use these principles to escape liability for discrimination, however, when it is in possession of information that raises the possibility that a worker requires accommodation, even if it is not formally notified of such need. When an employer is in such a position, it has a duty to inquire into the general nature and extent of the employees disability-related needs.
4. The duty to inquire is triggered when;
a) An employer is made aware of the need for accommodation, but does not yet have medical information regarding the general nature of the disability and the worker’s disability-related needs;
b) A workers conduct is such a departure from the norms of human behavior that the employer ought to have inquired about the existence of a disability or possible disability requiring accommodation;
c) A workers poor job performance is so unusual that the employer ought to have inquired about the existence of a disability or possible disability requiring accommodation;
d) The employer is about to take action that will negatively impact a worker (such as termination) and the workds conduct or job perfomance is such that it raises the possibility of a disability requiring accommodation;
e) An employee expresses a desire to return to work following a disability-related absence.
• Senyk v. WFG Agency Network (BC) Inc (No.2) (2008) BCHRT 376 (Lyster) Grievor, on LTD, respectfully indicated to her employer that she wished to return to work and was sent an email terminating her employement, without any inquiry regarding her condition, prognosis, or accommodation.
• See also the Kerr decision of the BC Ct. Ap.
5. The union also has a duty to inquire when it has a reasonable grounds for believing that an employee may have a disability requiring accommodation.
6. CASES WHERE THE DUTY TO INQUIRE WAS NOT TRIGGERED- MENTAL DISABILITIES
• The complainant was terminated for “uncontrolable anger”. The tribunal found that there was nothing in the complainant’s conduct that was so far out of the norms of communication among individuals, or idicitave of distress, that it would give rise to a duty to inquire. There had been no request from the complainant or the WCB rep for accommodation. (Downer v. Alaska Highway Autobody and others (2011) BCHRT 114)
7. CASES WHERE THE DUTY TO INQUIRE WAS NOT TRIGGERED- PHYSICAL DISABILITIES
• The complainant had disclosed that he had back problems but had never asked for accommodation, and was eventually terminated for excessive absenteeism. He had a) had successfully performed heavy work for several weeks; b) had never taken or requested back-related time off; c) had professed readiness to return to work after an absence; and d) repeatedly breached the requirement to call the employer if he was going to be absent. (Gallello v. Holland Landscapers and another (2011) BCHRT 70)
8. CASES WHERE THE DUTY TO INQUIRE WAS TRIGGERED- MENTAL DISABILITIES
• The complainant was a manager of a cab company who had been diagnosed with depression and anxiety (which had been communicated to the employer) and who was eventually terminated for ongoing performance issues and failure to report to work. The Tribunal found that the employer’s duty to inquire was triggered because a) the employer had observed the employee making erratic and irrational statements; b) the employer hold him to do nothing until the employer was sure he was fit to return to work; c) the employer acknowledged it needed more medical information; and d) the employer called a board meeting to inquire into how he was doing, and when he failed to attend the meeting, the employer made no attempt to find out why he did not show up. (Bowden v. Yellow Cab and other (No. 2) (2011) BCHRT 14)
9. CASES WHERE THE DUTY TO INQUIRE WAS TRIGGERED- PHYSICAL DISABILITIES
• The complainant, a good worker, had been employed for 6 years and rarely absent in the first 2, but started missing work and was terminated when off work for back problems. The employer said it was not provided with medical information but the tribunal said that the fact the employer knew about the disability, but failed to make any inquires, means that the employer had failed its duty to inquire. (Wyse v. Coastal Wood Industries, (2009) BCHRT 190)
10. DOES THE DUTY TO INQUIRE DIFFER IF AN EMPLOYEE HAS A MENTAL DISABILITY?
• The short answer is no; CK (Conni Kilfoil, the chief author of this document) says “maybe”.
• An employee’s denial that she has a mental illness or an addiction may not be enough to relieve the employer of its duty to inquire, severe “denial” may be medically recognized as part of the disability/addiction.
• An alcoholic employee who stole money from the till was terminated, and brought a disability related discrimination complaint against the employer and the union. The complaint against the union was dismissed because she had NOT told the union that she was an alcoholic at the time, and the tribunal said that the union had no information that would trigger its duty to inquire (Ryan v. Safeway and others (2007) BCHRT 428)
• A sawmill worker was terminated for smoking marijuana, contrary to the employer’s policy. The tribunal found that the duty to inquire was not triggered because a) The complainant did not claim at any time that he had a disability, b) the employer did not think that he had a disability, and c) his conduct was not such that the employer should have known that his denial was based on an addiction. (Geldrich v. Whisper Creek (2009) BCHRT 178)
10. WHEN WILL THE DUTY TO INQUIRE BE SATISFIED?
• The Miller case illustrates that the duty to inquire may be satisfied after general inquires for information are made about a complainant who is asserting a mental disability. The union claimed that several workers involved in a sinking ferry incident suffered from post-traumatic stress disorder, but provided no information regarding the impact of PTSD on any individual’s ability to comply with the employers request to answer questions.
In this case it was found that the employer had satisfied its duty to inquire because: a) when the union raised the issue, the employer explicitly requested more information; b) as soon as the union raised the possibility of a connection between giving information to the inquiry and anxiety disorder, the employer explicitly requested more information; c) the employer asked the union to identify the individuals who would not be able to answer questions, and specifically stated that, if an individual crew member produced a medical opinion from a qualified doctor that he was medically unfit to be interviewed, they would take that into account in their proceedings; d) they sent a second letter requesting this information. The Tribunal found that the employer was never provided with medical information with respect to any specific crew member and therefore the duty to inquire did not arise. (Miller obo others v. BC ferry Services and Taylor (2007) BDHRT 51)
Source of the above: “Employers Duty to Inquire under section 13 of the Human Rights Code: Physical and Mental Disability” by D. Juricevic of the BC Human Rights Tribunal, for the Continuing Legal Education Society of BC, November 2011.
©Conni Kilfoil, Equality Representative, Canadian Union of Public Employees [email protected]