New Ontario Human Rights Commission policy emphasizes the need for employers to avoid a narrow approach to accommodating employee disabilities
These days, most employers are well aware of their duty to accommodate an employee with a disability under human rights legislation such as the Ontario Human Rights Code. However, disability remains one of the most cited grounds of discrimination in applications made under human rights legislation, and most often arises in the area of employment. Among other factors, this trend could also be a sign that some employers continue to struggle with meeting their human rights-related obligations when it comes to accommodating disability.
On Sept. 29, 2016, the Ontario Human Rights Commission (OHRC) launched its new policy entitled Policy on ableism and discrimination based on disability. This OHRC policy is an update to the original policy on disability that was released in 2001, which had focused on interpreting undue hardship and considering the concept that alternative work arrangements should be considered for people with disabilities. The new OHRC policy clarifies the law of accommodation by incorporating case law developments over the past fifteen years, detailing the rights and responsibilities of the parties involved in accommodation, expanding on a number of key concepts — including the duty to inquire — and providing best practices to assist employers with meeting their accommodation obligation.
The remarks of the Chief Commissioner and the release of the new policy could be interpreted as a bellwether of the prevailing mood. In our practice and reviewing human rights case law, we find that employers may still struggle with the idea of erecting more than an accommodative façade and doing the bare minimum to comply.
An example of this façade is in the recent case, Hamilton-Wentworth District School Board v. Fair, where the Ontario Court of Appeal confirmed that the decisions by the province’s human rights tribunal and the Divisional Court on the failure to accommodate and remedy of reinstatement were reasonable. While the Fair saga is most often cited as a cautionary tale for employers that reinstatement is a remedy that can be awarded by the tribunal, the recent pronouncements by the Court of Appeal affirm a number of established accommodation principles.
Sharon Fair was on disability leave for three years prior to being terminated from her employment with the school board. Prior to her dismissal, she had been assessed as being capable of returning to work, but not in her pre-leave position. In response, the employer maintained that there was no suitable position available within her limitations and terminated her employment. The tribunal found in 2014 that the school board discriminated against Fair by failing to accommodate her disability, and the Divisional Court upheld the tribunal’s decision in 2014.
Upon further appeal, the Court of Appeal agreed with the Divisional Court that the school board “never had any real intention to accommodate” based on the evidence considered and that the school board breached its duty to accommodate by failing to actively, promptly and diligently canvass possible solutions to Fair’s need for accommodation in an alternate position. First, the Court of Appeal found that the school board took an overly narrow approach to Fair’s medical documentation that indicated she not be placed in a new position with the same personal liability as her pre-leave position. From the school board’s perspective, the medical documentation indicated Fair was restricted from performing any supervisory role as any such position carried the potential for personal liability. The tribunal noted that the medical documentation provided by Fair required further clarification and Fair was willing to provide additional medical evidence. However, there was no evidence that the school board took any steps to clarify Fair’s restrictions prior to determining that she could not be accommodated.
Second, the Court of Appeal agreed with the tribunal and Divisional Court that the school board failed to consider any alternate positions for accommodation, as there were two positions within the workplace that met Fair’s restrictions. The Court of Appeal rejected the school board’s arguments that the tribunal created a new standard for accommodation that required an employer to create a surplus position or displace an incumbent employee in order to accommodate. On the contrary, the evidence before the tribunal indicated that Fair would be accommodated in a position where the financial resources already existed and was vacant. The Ontario Court of Appeal confirmed that the tribunal’s finding was simply in keeping with the principle that authorizing a transfer of position was part of the consideration of alternate suitable positions.
Notably, the Court of Appeal stated that in fulfilling the duty to accommodate, an employer may be required to place a disabled employee into a vacant position for which he is qualified, but not necessarily the most qualified. In other words, accommodating an employee’s medical restrictions may trump another employee’s seniority rights. However, there are limits to this requirement as an employer would not be required to place an employee in any position for which he is not qualified.
Employers who choose to roll the dice and ignore the requirements to engage meaningfully in the accommodation process do so at their peril — the reality is these employers will likely face a much greater risk of legal action, human rights complaints, costly penalties and a range of other remedies to promote compliance with human rights legislation. For example, in Fair, the Ontario Court of Appeal upheld the tribunal’s award for 10 years of back pay and reinstatement of Fair despite having been away from the workplace for a decade. The goal of human rights legislation is to put the affected individual back in the position he would have been in had the discrimination not taken place and in certain circumstances, reinstatement could be the appropriate remedy, even if there has been a lengthy passage of time.
Fair reminds all employers that when receiving accommodation requests, the employer must act in good faith and meaningfully consider all reasonable steps, including modifications to the employee’s position or looking at alternate jobs. While the duty to accommodate will generally be triggered by a request, the accommodation obligation can also be triggered by the duty to inquire into an employee’s accommodation needs. The new OHRC policy states that “where an organization is aware, or reasonably ought to be aware, that there may be a relationship between a disability and someone’s job performance…the organization has a ‘duty to inquire’ into that possible relationship before making a decision that would affect the person adversely.” Sufficient awareness, according to the OHRC policy, would include observing inappropriate behavior by a person.
With this in mind, as well as the recommendations in the new OHRC policy, here are a few strategies to help employers actively accommodate:
Meaningfully consider possible accommodation options. Employers should be creative and flexible when it comes to considering accommodation requests and not simply “go through the motions” of accommodating. While there is no requirement to create a new position, assign meaningless tasks to the disabled employee or provide accommodation that would result in undue hardship, there is the obligation to consider modifying the employee’s current position or consider an alternate position that is available within the organization.
Clearly understand the accommodation need. Upon receiving a request for accommodation or having the duty to inquire triggered, employers should take active steps to understand the employee’s needs by seeking adequate medical information. The OHRC policy confirms that accommodation seekers may be expected to provide information such as the existence of a disability, the limitations or needs associated with the disability, confirmation that the person can perform their essential duties of the position and the type of accommodation that may be required.
Train your managers. Managers who are “on the ground” observing the day-to-day issues with employees must understand their legislative requirements and accountabilities, particularly when certain matters require escalation. Managers should be trained on their obligations under human rights legislation, including any behavior by an employee that the tribunal considers to trigger the duty to inquire.
Develop a clear accommodation policy. A policy outlining the process for accommodation should be clearly communicated and documented. Specifically, the policy should contain a commitment to accommodation, outline the duties and responsibilities of all parties involved in accommodation, and establish a procedure for maintaining the confidentiality of the information shared. As a note of caution, some employers may be tempted to create a “one-size fits-all” template for accommodation as a response to any requests for accommodation or whenever the duty to inquire is triggered. This is not acceptable as confirmed by the OHRC policy given that accommodation is an individualized process where employers are required to evaluate each request on a case-by-case basis. Accordingly, employers are best advised to design an accommodation process to ensure the investigation and implementation of accommodation options.
For more information see:
• Hamilton-Wentworth District School Board v. Fair, 2016 CarswellOnt 8904 (Ont. C.A.).
