No reason for employer to inquire if employee is ‘perfectly capable’ of informing it of accommodation needs
The British Columbia Human Rights Tribunal has reminded employees there is a fine line between an employer’s duty to inquire about the accommodation needs of a disabled employee and an employee’s duty to inform his employer that he requires accommodation in the first place.
Greg Crompton worked in an executive capacity at Coast 2000 Terminals (Coast), Fraser River Terminals (FRT) and their predecessor companies in Richmond, B.C., for 29 years. In 2004, Crompton was president of FRT, and he was appointed as vice-president, operations, of Coast. In July 2007, Crompton suffered an injury that resulted in the loss of a portion of his foot. He returned to work full time and to his full range of duties in early 2008.
In 2011, Coast moved Crompton’s office from the ground floor of one building to the second floor of a different building that was 1,000 feet from where Crompton performed most of his duties. According to Crompton, this relocation caused him significant pain and discomfort because he frequently had to walk, stand and use the stairs.
Crompton filed a complaint at the tribunal alleging that contrary to section 13 of the B.C. Human Rights Code, Coast discriminated against him based on his physical disability when it relocated his office to a location that aggravated his injury. He asserted that although he advised a supervisor about the pain and discomfort caused by the relocation, and although several supervisors must have observed his difficulty using stairs and walking around the premises, Coast did nothing to accommodate him. He argued that Coast had a duty to inquire about his accommodation needs because it had reason to suspect that his disability was negatively impacting his ability to work.
Coast brought an application to dismiss Crompton’s complaint arguing that its duty to accommodate did not arise because it did not know and could not have reasonably known that Crompton required accommodation for his disability. Crompton was cleared to return to work and to return to his pre-injury duties. He never informed Coast about his need for accommodation, he never objected to the relocation of his office and he was regularly observed moving freely around the premises without apparent difficulty.
The tribunal denied Coast’s application to dismiss the complaint. On the facts as submitted by Crompton, Coast should have been aware of the adverse effect the office relocation had on Crompton’s injury, and this triggered Coast’s duty to inquire whether Crompton required accommodation. A full hearing was required to resolve whether Coast actually knew or should have known about the pain and discomfort Crompton suffered as a result of the relocation.
Although the tribunal did not dismiss the complaint, there was recognition that an employee must engage accommodation and cannot rely on an employer’s duty to inquire in all circumstances:
“In my mind, there is a significant question as to whether such duty to inquire would be invoked in circumstances where there is nothing in the nature of Mr. Crompton’s disability which would prevent him from expressly advising his employer that he needed an accommodation with respect to their request that he occupy an office on the second floor of the executive building. I see no point in requiring an employer to inquire about the need for accommodation in circumstances like this where a senior member of management is perfectly capable of setting out his or her need for accommodation expressly and, if necessary, in writing,” said the tribunal.
Significance of Crompton for employers
Over 20 years ago in Renaud v. Central Okanagan School District No. 23, the Supreme Court of Canada made it clear that “an employee must demonstrate the need for accommodation and make a clear request to be accommodated before the employer’s duty to accommodate is engaged.” The Crompton case reaffirms that the duty to accommodate is a two-way street. While the employer shoulders the ultimate responsibility for providing accommodation, the employee shares this burden because he or she must ensure the employer is adequately informed about the need for accommodation in the first place. The mere fact that an employee is injured and has been off work is not sufficient to trigger a continuing duty to accommodate, especially in circumstances where an employee has been cleared to return to work without any restrictions. An employer may be aware of an employee’s injury and treatment, but this does not mean that the employer must assume further accommodation is necessary where there is an absence of circumstances that would trigger the duty to inquire. Ultimately, both the employee and the employer share responsibility for the accommodation process.
For more information see:
• Crompton v. Coast 2000 Terminals, 2013 CarswellBC 1833 (B.C. Human Rights Trib.). Eleni Kassaris is a partner in the Vancouver office of Blake, Cassels & Graydon LLP. She acts in both an advisory capacity and as litigation counsel in all aspects of employment and labour law, including privacy and human rights. Eleni can be reached at (604) 631-3327 or firstname.lastname@example.org.
• Renaud v. Central Okanagan School District No. 23, 1992 CarswellBC 257 (S.C.C.).
Eleni Kassaris is a partner in the Vancouver office of Blake, Cassels & Graydon LLP. She acts in both an advisory capacity and as litigation counsel in all aspects of employment and labour law, including privacy and human rights. Eleni can be reached at (604) 631-3327 or email@example.com.Freda Carmack is an articling student in the Vancouver office of Blake, Cassels & Graydon LLP. She earned a J.D. from the University of Ottawa Law School, and a J.D. (Cum Laude) from American University Washington College of Law. Freda can be reached at (604) 631-5206 or firstname.lastname@example.org.