'It basically didn't acknowledge his request for accommodation and just said, 'This is the plan, take it or leave it''
“Accommodation is a two-way street – the employee has an obligation to make their disability known to an employer, but once that's done explicitly, then the onus switches over to the employer to make reasonable inquiries and engage in the accommodation process.”
So says Glen Stratton, an employment lawyer at Ascent Employment Law in Vancouver, after the British Columbia Human Rights Tribunal ordered an employer to pay a worker more than $200,000 for disability discrimination that forced the worker to resign over health concerns during the onset of the COVID-19 pandemic.
The worker was immunocompromised from the effects of medication he took to manage arthritis. According to his doctor, his arthritis was “a chronic, lifelong autoimmune condition that requires potentially lifelong therapy with an immune suppressing medication.”
On March 5, 2020, the worker interviewed for a position at DF Architecture (DFA), an architectural design firm in Richmond, BC. During the interview, they discussed COVID-19, which was spreading rapidly at the time, and management told the worker that they were exploring remote work options. The worker didn’t mention that he was immunocompromised.
Probationary period
One week later, DFA offered the worker a position as a project lead and architect. The worker accepted the offer the next day, with the expectation that he would start on March 30 on a three-month probationary period.
On March 16, the worker sent his signed offer of employment with a message saying that he anticipated having further discussions about the pandemic and working remotely. He stated that he was “open to all options at this point in time.”
Two days later, the BC government declared a provincial state of emergency due to the pandemic, with only essential services remaining open. As an architectural firm, DFA was able to remain open as an essential service.
On March 26, the worker received his work schedule for the next two months, which had half of the staff alternating days in the office with the other half, to reduce the number of people in the open-concept office. There were also office protocols of social distancing, washing hands, and sanitizing workstations, the kitchen, and the washroom after each use.
Physical disability
The worker called DFA’s business development manager and advised that he was immunocompromised due to an autoimmune condition, asking about remote work. The manager insisted that he come into the office for his first day of work.
The worker also emailed upper management about his condition, but they didn’t respond.
“At the outset, [the worker] didn't disclose that he had any sort of disability, so at the point where he was expressly saying that he was immunocompromised due to this arthritic condition - describing a specific disability that forms part of a protected ground - that's going to trigger an employer's duty to inquire,” says Stratton. “That's when the employer becomes obligated to make reasonable inquiries about that disability and its limitations, so it can then appropriately consider what accommodations would be required.”
The worker came to the office on March 30, but when he saw that his colleagues weren’t following the social distancing protocol, he went home at midday to work from home the rest of the day.
His next scheduled day in the office was April 2. However, others still weren’t observing social distancing so he went home early.
That afternoon, a revised work schedule was sent out that increased his days in the office to three per week with staggered hours for staff. The worker believed there would be five people with him for part of the day and three afterwards. There was no mention of sanitation protocols or cleaning in the schedule, although DFA had the office sanitized twice daily – which was unknown to the worker.
Resignation
The same day, the worker wrote to upper management hoping to explore other options for remote work. DFA’s owner replied, asking him to follow the schedule, which the worker took to mean that DFA couldn’t accommodate his health concerns. About 30 minutes after the owner’s reply, the worker sent an email resigning from his position because “I cannot expose myself to the risk.”
The worker filed a human rights application alleging discrimination based on physical ability and that DFA didn’t fulfil its duty to accommodate him.
The tribunal referred to the Moore test for discrimination, in which the worker had to prove that he had a physical disability, he experienced an adverse impact in his employment, and his physical disability was a factor in the adverse impact. If he established discrimination, then DFA would have to prove that there was a bona fide occupational requirement preventing it from accommodating the worker.
DFA agreed that the worker suffered an adverse effect when he felt that he had to resign, and this was linked to his alleged disability. However, the company argued that the worker didn’t provide it with any evidence of a physical disability before he resigned.
The tribunal found that the worker’s immunocompromised status constituted a physical disability under the BC Human Rights Code, as the condition was potentially lifelong and the effects of the medication put him in “an involuntary physiological state” that impaired his ability to participate in everyday activities compared to others without such a condition.
Duty to accommodate
The tribunal also agreed that the office schedule had a purpose rationally connected to the performance of the worker’s job and was adopted in an honest and good-faith belief that it was necessary to fulfill a legitimate work-related purpose – which were two of the three factors needed to support a bona fid occupational requirement defense. That left the question of whether DFA fulfilled its duty to accommodate, said the tribunal.
The tribunal noted that both DFA and the worker had obligations in the accommodation process – the worker had to disclose his disability, and then DFA had to take steps to obtain more information and assess accommodation options. Although the worker didn’t initially disclose his disability when he was interviewed and hired, he clearly disclosed it when he expressed his concerns with the schedule, the tribunal said.
As a result, DFA’s duty to accommodate was triggered when the worker disclosed that he was immunocompromised on March 26, and the company didn’t fulfill its duty to accommodate when it failed to engage in the accommodation process and instead insisted on adherence to the work schedule, said the tribunal. As a result, DFA breached the code by failing to accommodate the worker’s disability and discrimining against him based on physical disability, the tribunal said.
DFA argued that the worker’s resignation came too quickly without any information on his condition, but the tribunal found that the worker advised of his condition on March 26 and afterwards, and DFA didn’t address it. Asking the worker to come into the office ignored the worker’s particular vulnerabilities, said the tribunal.
The worker disclosed his disability on several occasions and the big issue for DFA was that each time it didn’t acknowledge it, which was a failure of its duty to inquire, says Stratton.
“[The worker] expressly fleshed out on multiple occasions his concern for the hybrid work schedule and going to the office, and DFA just didn't fulfill its side of the bargain in engaging in the accommodation process,” he says. “Obviously, you have to respect an employee's privacy, but you need to understand his conditions as it relates to his ability to perform his role, and it just didn't try to understand his limitations such that it could properly consider what an appropriate accommodation would look like.”
“Instead, it basically didn’t acknowledge his request for accommodation at all and just said, ‘This is the plan that we've put in place, take it or leave it.’
Effects of discrimination
The worker explained that the discrimination significantly affected his career, as it happened during the pandemic. It also affected him emotionally, as he felt he had to choose between his health and his employment. He testified to experiencing anxiety to the point where he couldn’t maintain his professional registration.
DFA was ordered to pay the worker $183,802.59 in lost wages, representing half of the amount the worker had claimed to account for employment contingencies and the probationary nature of the worker’s position.
For injury to dignity, feelings, and self-respect, DFA was ordered to pay the worker $25,000. The tribunal considered the severity of the discrimination, the worker’s vulnerability as a new employee during the pandemic, and the significant impact on his emotional and professional wellbeing.
It’s a strong award for injury to dignity from discrimination, according to Stratton.
“Arguably the biggest determining factor is the actual impact and injury to dignity, that the worker experienced as a result of the discrimination,” he says. “And the tribunal was satisfied with the worker’s evidence that the discrimination had a big impact on him, both on an emotional and professional level - the impact it had on his confidence and ability to do his job, he was unable to maintain his professional registration as an architect, and he said he felt like he had to make a choice between his health and his employment. That's really compelling.”
