3 notable cases in 2008 helped redefine the test for what constitutes ‘undue hardship’ when accommodating employees with disabilities
A new standard for hardship
The Supreme Court of Canada issued two landmark decisions in the summer of 2008 that changed the accommodation landscape for employers. The decisions relaxed standards for employers to prove reasonable effort for accommodation and they weren’t required to make fundamental changes to working conditions to accommodate, as opposed to a threshold of “impossibility” to accommodate they were held to previously.
An Ontario court decision followed that showed employers shouldn’t lower their guard, reminding them they must prove undue hardship is factual, not assumed or based on anecdotal evidence. Catherine Milne looks at what these cases mean for employers who are faced with accommodating employees with disabilities.
The year 2008 will be remembered amongst employment lawyers and human resource professionals as a year of significant change to human rights litigation, particularly in Ontario. On June 30, 2008, Ontario’s new process for the adjudication of applications under the Ontario Human Rights Code came into force, abolishing the former bifurcated system of investigation through the commission prior to hearings at the tribunal.
Procedurally, the new Human Rights Code and its revised rules, regulations and forms appear to offer applicants a less costly and time-consuming process for the determination of workplace human rights violations. Employers who may have formerly taken a laissez-faire approach to pending human rights complaints, letting months and years go by as cases worked their way through commission investigation, should take notice. Early disclosure and adherence to the strict timelines set out in the rules will mean immediate action is required when employers receive notice of an application.
Courts examined undue hardship
There were three important decisions dealing with accommodation in employment — two of them from the Supreme Court of Canada and one from the Ontario Divisional Court. All three examined the notion of “undue hardship” in the context of accommodating employee disabilities and the return to work following an extended disability-related absence. In the two Supreme Court decisions — Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil and Keays v. Honda Canada Inc. — the employers were exonerated. In the Divisional Court decision — ADGA Group Consultants Inc. v. Lane — the employer was reprimanded for its hasty and incomplete assessment of its ability to accommodate.
For years, employers had been counseled about the three-step Meiorin standard which they must meet in order to prove an adopted workplace approach or activity appropriately accommodates employees. Specifically, that test required:
•Establishing a rational relationship between the adopted approach or treatment and the performance of the job.
•An honest and good faith belief that the adopted approach was necessary in order to accomplish its purpose.
•Proof that it would have been impossible for the employer to accommodate the individual circumstances without suffering undue hardship.
As tribunals and courts stringently applied the Meiorin principle, and particularly the broad concept of “impossibility,” it became extremely difficult for employers to meet the test for undue hardship. But in 2008, the Supreme Court of Canada seized upon the opportunity to redefine and narrow the concept of “impossibility” and clarify the scope of employer’s obligation to accommodate.
In Hydro-Quebec, the Supreme Court found the employer had sufficiently met the standard of proving undue hardship through its many attempts to repatriate a chronically absent employee. Over seven-and-a-half years, Hydro-Quebec had initiated a number of adjustments to the employee’s working conditions based on her medical conditions, including light duties and incremental returns to work. Eventually, upon receiving advice from the employee’s doctor and a company appointed psychiatrist that the employee was unable to resume work in the reasonably foreseeable future, Hydro-Quebec was justified in terminating her.
“The test is not whether it was impossible for the employer to accommodate the employee’s characteristics,” the Supreme Court said. “The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his/her work.”
In Keays, though not specifically on the duty to accommodate, the Supreme Court commented on Honda’s disability management system, which required medical notes from absent employees and was predicated on facilitating attendance management and accommodation in the return to work. The court said such attendance management programs, where consistently applied, were intended to accommodate disability-related absences and are not in breach of the Human Rights Code’s obligations. It said monitoring the absences of employees who are regularly absent from work was a bona fide work requirement.
Undue hardship must be real, not speculated
It seemed as if employers had been given a reprieve from the previously broad application of “impossibility” in proving undue hardship. Shortly thereafter, the Ontario Divisional Court released its decision in ADGA in which it upheld an $80,000 damage award against an employer who failed to prove, both procedurally and substantively, that it was impossible to accommodate a bipolar employee.
Paul Lane was hired by ADGA as a software program tester. Though not disclosed at the time of hiring, four days after starting work Lane told his supervisor he suffered from bipolar disorder and asked her to intervene if she observed any symptoms which might indicate the onset of a manic episode. In particular, he asked that she contact his wife or doctor if she observed pre-manic characteristics since, if treated early and appropriately, full-blown manic behavior could be avoided. Lane’s supervisor researched bipolar disorder on the Internet and learned stress was one of the three main triggers of manic episodes. After discussing it with her supervisor, they decided to terminate Lane, eight days after he started.
ADGA said Lane misrepresented his ability to perform the essential duties of the position for which he was hired and it could not accommodate him short of undue hardship. ADGA argued that given the nature of its business — software development, safety and reliability testing for the Department of National Defence Canada (DND) — it could not risk employing someone whose behavior could jeopardize the company’s product.
The Divisional Court upheld the human rights tribunal’s ruling that ADGA rushed to judgment, basing its decision to terminate Lane on unreliable and unsubstantiated information about bipolar disorder. ADGA failed to meet its procedural obligation to accommodate Lane when it didn’t engage in a full exploration of the nature of bipolar disorder, seek expert medical or legal advice, consult with personnel in DND, or investigate the extent to which managing Lane’s condition was possible. Instead of taking responsible steps to fully evaluate whether it could accommodate Lane, ADGA dismissed him immediately, which breached the code.
The court penalized ADGA for the manner in which it dealt with Lane’s request for accommodation. Its reliance on anecdotal information relating to bipolar disorder was not nearly enough to meet the substantive or procedural requirements of accommodation. The court noted that in assessing whether the employer has met the duty to accommodate, the employer’s efforts must be assessed at the time of the alleged discrimination.
“Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications,” the court said. “Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concern that certain adverse consequences ‘might’ or ‘could’ result if the claimant is accommodated.”
Tips for employers
Employers should take the following from these cases:
•Maintain and consistently apply attendance management policies and disability programs.
•Obtain appropriate third-party advice concerning the nature of an employee’s disability and how it can be accommodated in your particular workplace;
•Do not act in haste, or attempt to read into the future, when determining whether or not an employee’s particular situation may be accommodated in the long run. Even if the determination is right, if it is based on insufficient information or evidence, it may not withstand the scrutiny of the court.
For more information see:
•Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, 2008 CarswellQue 6436 (S.C.C.).
•Keays v. Honda Canada Inc., 2008 CarswellOnt 3743 (S.C.C.).
•ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (Ont. Div. Ct.).
