Duty extends to a broad range of areas

Duty to accommodate to the point of hardship

Background

An employer’s duty to take reasonable steps to accommodate an employee’s needs to the point of undue hardship is well established in human rights law.

The duty to accommodate is generally thought of in relation to disability; but the duty extends to a broad range of protected grounds including religion, sex and family status. Adjudicators have recently adopted an expansive view of the duty to accommodate and set a higher threshold for proving undue hardship.

This article explores three issues as they pertain to the duty to accommodate: innocent absenteeism, bundling job duties, and strength requirements.

Three issues in the duty to accommodate

Innocent absenteeism

In two recent decisions, Desormeaux v. Ottawa-Carleton Regional Transit Commission and Parisien v. Ottawa-Carleton Regional Transit Commission, the Canadian Human Rights Tribunal ruled employees had been discriminated against when they were terminated for chronic innocent absenteeism. In both cases a grievance had been filed but the arbitrator upheld the discharge.

The complainant in Desormeaux was hired in 1989. During her nine years of employment as a bus operator she missed at least 365 full days and 24 part days. Her absences were caused by a variety of health problems. After numerous warnings, Desormeaux's employment was terminated because of her absenteeism. Desormeaux alleged this constituted discrimination on the basis of disability, contrary to the provisions of section 7 of the Canadian Human Rights Act. The tribunal agreed.

In Parisien the complainant was employed as a bus operator with the Ottawa-Carleton Regional Transit Commission. During his 18 years of employment, he missed 1,664 full days and 33 part days of work due, in large part, to illnesses. Parisien suffered from post-traumatic stress disorder and related ailments, triggered by two incidents involving violent confrontations with passengers. Parisien was dismissed in 1996 for chronic innocent absenteeism.

The employer’s position in both cases was that an accommodation analysis was not necessary since dismissal based on a predicted poor future attendance record implicitly took into consideration whether the disability could be accommodated.

The tribunal rejected this argument in both cases. It ruled that while the issue at arbitration was whether there was a past record of substandard attendance and a poor prognosis for regular attendance in the future, proof of accommodation was required under the Canadian Human Rights Act.

Based on the test established by the Supreme Court of Canada in British Columbia v. B.C.G.S.E.U. (also known as the Meiorin case) the arbitrators ruled the employer had failed to establish a bona fide occupational requirement for the discrimination since it did not demonstrate any effort was made to accommodate the disability to the point of undue hardship. In the tribunal’s view “tolerating" absenteeism could constitute an acceptable type of accommodation. Even where innocent absenteeism justified dismissal in accordance with labour arbitration law, the tribunal’s view was this did not mean the dismissal was in accordance with human rights law.

Desormeaux was reinstated with full compensation for lost wages. She also received $4,000 in damages plus interest for mental distress. No deduction was made for failure to mitigate damages. Parisien was also reinstated to his position and awarded damages for lost wages from the date of dismissal. He was also awarded $3,500 as compensation for hurt feelings.

“Bundling” job duties

The issue of whether an employer has an obligation to create a position in order to meet its duty to accommodate has also come to the forefront as shown in Re Essex Police Services Board and Essex Police Association, a case involving a constable who suffered from a degenerative disc disease. The arbitrator ruled the employer had a duty to “cobble together” a job representing sufficient productive first-class constable work to keep the grievor fully employed. But in the more recent decision of Biltrite Industries v. U.S.W.A., the arbitrator dismissed a grievance and held the nature and extent of the grievor’s restrictions made it impossible to identify duties that could be performed as full-time work.

While the extent of the duty to create a position remains unclear, the above-mentioned cases demonstrate that employers should consider all possibilities before deciding an employee cannot be accommodated short of undue hardship.

Strength requirements

On Sept. 12, 2003, an arbitrator ruled the Toronto District School Board’s requirement that part-time cleaners demonstrate the capability of lifting 50 pounds from bench to shoulder height was discriminatory on the basis of sex. In Canadian Union of Public Employees, Local 4400 v. Toronto District School Board, the arbitrator held the school board failed to demonstrate it could not accommodate female cleaners who did not meet the strength requirement without incurring undue hardship.

The school board hired the grievors in 2001 as part-time cleaners. The offers of employment were expressly contingent upon their passing a physical demands assessment. Each commenced work before completing the assessment but all were terminated following their failure to successfully lift 50 pounds from bench to shoulder height. Their employment was restored after they grieved their terminations and were provided with strength training which enabled them to successfully meet the requirement. But it was their evidence that at no time during their employment had they ever been required to lift anything weighing 50 pounds from bench to shoulder height.

The union said the part of the physical demand test that requires the lifting of 50 pounds had an adverse effect on women because of their physiology and was therefore discriminatory on the basis of sex. The union argued that although some women would be able to pass that test, a disproportionate number would fail . The union said the testing that was conducted on behalf of the employer overreached the requirements of the job. The test was also deficient because the people being tested were not told how much weight they would have to lift in order to pass the test and were not given information concerning lifting techniques.

Alternatively the union argued that if the requirement of lifting 50 pounds is rationally connected to the job, the grievance must still be allowed because the school board failed to accommodate women to the point of undue hardship by, for example, reducing the height requirement to which supplies have been stacked, making more efficient use of available storage space, ordering supplies in smaller quantities and arranging for supplies needed by part-time cleaners to be lifted and lowered by the head caretaker.

The school board’s position was that requiring applicants to demonstrate the capability of lifting is not discriminatory and does not disproportionately affect females because it is a standard which female applicants can meet.

The school board noted that although the grievors initially failed that part of the test, all three of them were able to pass it after taking strength training. The school board argued if the requirement is discriminatory, it is necessary for reasons of safety and efficiency. The arbitrator reiterated the three-step test set out in Meiorin for determining whether a prima facie standard is a bona fide occupational requirement (BFR):

• the employer adopted the standard for a purpose rationally connected to the performance of the job;

• the employer adopted the particular standard in an honest and good-faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

• the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

While the arbitrator was satisfied that the first and second steps of the test had been satisfied, the school board failed to demonstrate it could not accommodate the female employees without incurring undue hardship.

The arbitrator did not accept the school board’s position that, if the requirement is found to be discriminatory, the only appropriate accommodation would be to inform unsuccessful applicants about the strength training needed to meet that requirement nd provide them with an opportunity to be retested after completing a strength training program.

The abitrator ruled the requirement contravened section 11 of the Human Rights Code. The grievance was allowed and the school board was ordered to cease requiring that part-time cleaners demonstrate that capability.

For more information see:

Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2003 CarswellNat 901 (Can. Human Rights Trib.)

Parisien v. Ottawa-Carleton Regional Transit Commission, 2003 CarswellNat 3230 (Can. Human Rights Trib.)

British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., 1999 CarswellBC 1907, 1999 CarswellBC 1908 S.C.C.)

Essex Police Services Board v. Essex Police Assn., 2002 CarswellOnt 3455 (Ont. Police Arb. Comm.)

Biltrite Industries v. U.S.W.A., 2002 CarswellOnt 5255 (Ont. Arb. Bd.)

This in-depth look at the duty to accommodate was provided by Eric M. Roher and Michelle S. Henry. Roher is a partner at Bordner Ladner Gervais’ Toronto office. He practices in the areas of labour relations and education law. Henry is an associate in the labour and employment law group at Borden Ladner Gervais’ Toronto office.
For more information visit www.blgcanada.com


Tips for employers

Adjudicators have adopted an expansive view of the duty to accommodate, and have set a higher threshold for proving undue hardship.

Accordingly all alternative means of accommodation should be reviewed. In dealing with issues of accommodation in the workplace, managers and supervisors should consider all of the options objectively.

When employers are faced with concerns pertaining to their obligations under the Human Rights Code, organizations should attempt to balance the need to operate an efficient and flexible workplace with the rights and obligations of individual employees.

In striking this balance, managers and supervisors should investigate concerns in a timely manner while ensuring a climate of understanding and respect for the dignity and worth of all persons.

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