Employer assessed core duties of each application; not required to completely restructure position
The failure to promote a worker because her permanent restrictions made her unable to perform the core duties of the new position was not discriminatory, an Ontario arbitrator has ruled.
The worker was employed with the Toronto District School Board (TDSB), initially hired as a part-time caretaker in 2005. She became a full-time employee in 2010 and was appointed shift leader in 2019.
The worker had a medical condition that affected her flexibility and rotation and, over time, can cause bones in the spine to fuse. The worker lost rotation in her neck and developed osteoarthritis in her hips as well as carpal tunnel syndrome in her right wrist.
In 2017, the worker provided a modified work assessment from her doctor that listed several permanent restrictions, including being unable to sweep stairs or mop floors with a mop heavier than a certain weight; lifting restrictions; no cutting grass or operating a hedge trimmer; no raking sand and gravel in playgrounds; no shovelling snow or operating a snowblower; no washing windows, furniture or chalkboards; no climbing ladders; no vacuuming or cleaning pools; no setting up tables; and no testing fire alarms, sprinklers, or emergency lights.
Physical restrictions on the job
More assessments were done in 2021 and 2022 with some reduced restrictions, but most of the lifting limits and movement limits remained in place. In June 2023, the worker provided a list of modifications on activities such as climbing stairs, waste handling, carrying heavy items, climbing, walking, standing, sitting, and taking breaks when needed.
Starting in 2020, the worker made multiple bids on head caretaker positions at various schools. The TDSB reviewed the duties and responsibilities of the position, which varied depending on the school. The worker applied only to head caretaker positions at what were classified as “code 1” schools.
Head caretakers had to be prepared to respond immediately to requests to deal with school needs and the worker performed many of the head caretaker tasks as a shift leader. However, she never worked alone as a shift leader, while head caretakers at code 1 schools were on their own for most of their shift. The TDSB felt that the worker’s numerous physical restrictions made it impossible to perform the essential and core tasks of a head caretaker on her own. Although the worker had occasionally filled in as an acting head caretaker, this was different than doing it full-time as she had assistance. In fact, her shift leader position was accommodated with other staff helping her.
The TDSB individually assessed the requirements at each school where the worker applied, but it reached the same conclusion for each – the worker’s restrictions made her unable to do the job. As a result, each of the worker’s bids were turned down.
Worker alleged disability discrimination
The worker filed several grievances over the TDSB’s failure to promote her to a head caretaker position, alleging discrimination because of disability and a failure to accommodate. It pointed out that since the worker was being accommodated in a shift leader position, the TDSB should have worked with the worker in modifying the head caretaker tasks.
The TDSB argued that it fairly assessed the worker’s restrictions against the head caretaker duties at each school and it determined that the worker could not perform the core duties. It was not discriminatory to determine that a position was beyond an individual’s capabilities if that person was incapable of performing the essential duties, said the school board, noting that it already accommodated the worker in the shift leader position.
The arbitrator noted that “disabled employees are not to be excluded from opportunities for promotion” and employers must explore accommodation options when such employees are up for promotion.
However, the arbitrator found that the TDSB’s assessment was not a “blanket prohibition” against the worker from head caretaker positions. The TDSB considered the worker’s permanent restrictions and the essential duties of each and every application the worker made. It was reasonable for the school board to determine that the worker’s permanent restrictions made her unable to perform the essential duties of the position, the arbitrator said.
“The employer made a careful, informed and fact-based individual assessment of the restrictions and the essential duties,” said the arbitrator.
Worker needed assistance
The arbitrator agreed with the TDSB that, although the worker performed some head caretaker duties as a shift leader, she did this with assistance – a shift leader generally worked with at least four other caretakers, according to the evidence. This was a contrast to the head caretaker role that had to be ready to respond immediately to urgent events on their own, the arbitrator said.
“This is not a case where one or two of the essential duties need a tweak, or a modification,” said the arbitrator. “This is a case where the position itself would require significant restructuring and/or deployment of additional human resources (and leaving essential duties to be performed by others working different shifts would not be a reasonable option and would not address the need for some tasks to be performed immediately when the [worker] was working alone).”
The arbitrator also found that the sheer volume of schools overseen by the TDSB – about 600 – made it too onerous to search through its entire system for head caretaker jobs that might be accommodated. It was reasonable to focus on the schools to which the worker applied, said the arbitrator.
The arbitrator determined that the TDSB acted in good faith and made “a rational and objective” decision that the worker was unable to perform the duties of a head caretaker. The worker’s permanent restrictions made it impossible to accommodate her in that job and there was no discrimination in denying it to her, said the arbitrator in dismissing the grievances.
