Employer argued pro-dog policy was important recruitment, retention tool in IT industry
A worker’s complaint that her employer with a dog-friendly office failed to accommodate her allergy and discriminated against her raises reasonable arguments that deserve a full hearing, the British Columbia Human Rights Tribunal has ruled.
PNI Media was an information technology (IT) company in Vancouver. As a way to attract and retain top talent, its office was a dog-friendly environment. The company had a policy allowing dogs in the office, although it prohibited dogs in meetings – but that wasn’t always followed.
In July 2019, PNI hired the worker to be a lead developer. According to the worker, during the hiring process she told two interviewers and the recruiter that she was allergic to dogs. She also told the office co-ordinator and HR co-ordinator on her first day of work.
Over a few months, the worker’s allergy symptoms worsened, including swelling, difficulty breathing, and migraine headaches.
On Oct. 7, the worker asked the HR director to remind employees not to take their dogs into the meeting rooms, as the smaller space exposed her more to dander and exacerbated her symptoms. The HR director agreed and emailed a group of dog owners saying that the worker was allergic to dogs.
Two weeks later, the worker said that people were continuing to bring dogs into the meeting rooms, forcing her to avoid them. The HR director sent another email about the policy rules.
First accommodation request
The worker’s symptoms didn’t improve, so she requested accommodation by “at least removing the dogs in my area, kitchen, and washroom.” PNI requested a medical certificate explaining her disability, treatment, prognosis, and recommended accommodations.
On Nov. 7, the worker had to leave early due to dogs in her work area that caused internal swelling. She worked from home the next day and PNI suggested that her desk could be moved away from “the general population,” but the worker didn’t want to be separated from her team.
PNI then moved the worker’s team to a corner of the office away from main traffic areas, although it couldn’t guarantee that the worker wouldn’t encounter dogs as people moved around the office. The worker continued to suffer from allergic reactions, so she said that she would work from home until she received the medical certificate from her doctor. It wasn’t ideal for her due to her supervisor role, but the request was granted on a temporary basis, with the stipulation that she would have to come to the office occasionally for meetings.
On Nov. 29, the worker provided the completed medical certificate indicating that she had a “chronic allergic respiratory condition” that could interfere with her work duties and quality of life. The doctor recommended avoiding “triggers” of her symptoms, but if that wasn’t possible then “home-based work with attendance to meetings in-person in pet-free rooms” would be a solution.
PNI agreed to a temporary remote work arrangement with occasional attendance at meetings, but it said that it couldn’t eliminate the pet-friendly policy as it was “a fundamental part of our workplace culture and it is a feature of our engagement, development and wellbeing initiatives that serves us very well in terms of employee recruitment and retention.”
Permanently working from home
The worker suggested making one of the two floors at the office pet-free, but PNI said that it wouldn’t address the spread of allergens through the ventilation system. As a result, the worker worked permanently at home.
According to the worker, she felt isolated and when she came to the building lobby for meetings every two weeks, she wasn’t given access to a washroom.
In March 2020, the worker filed a human rights complaint alleging discrimination on the basis of disability. She accused PNI of failing to accommodate her and referred to comments by co-workers about her condition that contributed to further isolation from her colleagues.
A few months later, PNI proposed an accommodation – contingent on her dropping her complaint - to designate an area dog-free for her and her team, as few people were coming into the office at that point due to the pandemic. A meeting room would also be designated dog-free so she had the option to attend meetings in person.
The worker declined, suggesting that the entire first floor be dog-free so she could be on the same floor as the engineering department. This was the first time the worker said that she needed to be near that department and PNI stuck to its first offer, seeing no operational need for the worker’s proposal.
There was no agreement on accommodation and the worker continued to work from home.
Application to dismiss complaint
PNI applied to have the worker’s complaint dismissed as having no reasonable prospect of success, as some of her allegations did not support a disability-related adverse impact, it was likely to justify its response to her allergy, and its dog-friendly workplace culture was not connected to the worker’s disability.
The tribunal noted that comments by co-workers did not rise to the level of discrimination, but they could be considered in the broader context of the worker’s complaint and her allergy, which she alleged caused her to be “socially and physically marginalized” from the rest of the workforce. Factors such as the comments and the fact that the no dogs in the meeting room rule was often ignored, provided a reasonable prospect that the worker could prove an adverse impact in the workplace, said the tribunal.
As for PNI’s duty to accommodate, the company argued that the dog policy was an important workplace “perk” that helped with recruitment and retention, and it was a common practice in the industry. However, while it was adopted in good faith, the worker’s position that it wasn’t a necessary prerequisite to work in the IT field was “above a level of conjecture and warrants a hearing,” the tribunal said.
The tribunal also found that PNI took several steps to accommodate the worker – including reminding employees about the policy, seeking medical information about the worker’s needs, relocating the worker, and allowing her to work from home – but determining if the company had reached undue hardship required a more extensive analysis.
“It may be, at a hearing, that the tribunal will conclude PNI satisfied its duties under the code and that going further would give rise to undue hardship,” said the tribunal. “However, that outcome is not reasonably certain given [the worker’s] evidence about the impact on her of being, first, exposed to allergens that made her sick and, second, physically excluded from the workspace because of her allergies.”
The tribunal denied PNI’s application to dismiss the complaint and determined that a hearing was necessary. See Fenech v. PNI Media Inc. and another, 2023 BCHRT 120.
