'Employers … should really take note of what's happening around the duty to accommodate,' says academic
Recently, the B.C. Human Rights Tribunal upheld a complaint in which the termination of a pregnant government employee was found to have been discriminatory.
The tribunal found that the employer had failed in its duty to inquire when the Ministry of Finance employee increasingly missed hours of work and came to work late.
Since the employer was aware that the employee had had difficult pregnancies in the past, it ought to have reasonably surmised that the employee’s behaviour was related to her pregnancy and offered to accommodate rather than terminating her, found the tribunal.
“There is no evidence on this application that the respondents were taking steps to inquire as to whether or not [the employee] needed any further accommodation regarding her pregnancy, including but not limited to in relation to her to workload.”
An employer has a duty to inquire into a possible relationship “before they make an adverse decision based on performance,” said Ritu Mahil, labour and employment arbitrator and mediator with Southern Butler Price in North Vancouver.
“If there is something coming up — like attendance issues all of a sudden or some performance markers that the employee isn't meeting — rather than immediately moving down the discipline stream, the employer will have the duty to inquire depending on what a departure it is for the employee, in terms of their usual behaviour.”
Avoiding allegations of discrimination
Most employers are aware that they have a duty to accommodate employees who are protected from discrimination according to the Canadian Human Rights Code.
But what about the duty to inquire? It’s the essential first step employers are required to take when an employee is struggling, and they have a “reasonable” reason to believe it might be related to a disability.
But there are grey areas that are decided on a case-by-case basis and often before HRT panels when an employee feels they have been penalized due to their disability, and they can show there was a reason their employer should have been aware of their disability.
One way to avoid allegations of discrimination because of a failure to inquire is to create an inclusive environment, said Amanda Hancock, assistant professor of leadership at the University of Regina.
“It's really important to have the foundational programs and policies in place at the organizational level, and make sure leaders and managers know how to enact those policies for employees who need them,” she said.
“It's really context – and case – dependent, when and where they draw the line about the duty to inquire, but the rule of thumb for employers is if you have a reasonable suspicion that an employee may have a disability, then you are entitled to ask for medical or functional documentation to a degree … within the guidelines of what's appropriate.”
Stigma around mental health barrier to accommodation
An employer’s duty to inquire can become complex when an employee is dealing with mental health issues that are invisible, Hancock explained. Because of known stigmas around mental health that persist in Canadian workplaces, many employees hesitate to request accommodations, and some may not even be aware themselves that they have a mental health condition.
It will be difficult for an employer to determine if behaviour is unusual if they don’t know what an employee is normally like, Mahil said, which is why proactive measures are so important for mitigating a duty to inquire.
“Develop a practice of routinely checking in with your employees. You're not going to have reason to suspect that there may be a medical condition that's impacting the employee’s ability to work if you don't know your employee at that personal level,” she said.
“All you have is an attendance record or performance concerns, and then all of a sudden they're down the performance management or disciplinary track, and an employer’s failure to make inquiries about the health of the employee before taking that step, when the employer has reasons to suspect that there's a medical condition, has been found to be discriminatory.”
Further complicating matters is that with invisible disabilities such as mental disorders, there could be a long process before arriving at the diagnosis and accommodation stage, Mahil said.
“It’s a step-by-step process. But the steps definitely take longer for the invisible disabilities.”
Tribunals award high damages for duty to inquire failures
In a 2023 Alberta Human Rights Tribunal decision, a panel found in favour of an employee who had been dismissed without cause and filed a complaint alleging discrimination. He had been let go because of complaints made against him by customers and colleagues, claiming he had been hostile and had issues with memory.
Because the employee had mentioned twice to his manager that his behaviour could have been due to his disorder (chronic traumatic encephalopathy), the employer ought to have inquired further into his medical condition before termination.
The Tribunal awarded the complainant $20,000 in general damages for injury to dignity and feelings.
“The world is designed for people who can function a certain way, who can move a certain way. It's only until one of those things is taken away from us that we start to notice the world around us is built for able-functioning people,” said Hancock.
“There's recently been movements to increase diversity, but it's not just about getting the diversity, it's making the environment inclusive. If we're working in a climate where there are often jokes about people's mental health, mental illness, slang being used that could be considered offensive, these kinds of acts by coworkers or managers … are signalling to people that it might not be safe to make that disclosure, to put yourself in that vulnerable situation.”
Undue hardship for employers will be high bar
The duty to accommodate is always limited by what would be considered “undue hardship” for the employer to implement, and that threshold varies among provinces and different organisations, Hancock said.
But it is a high threshold, and one that will only get higher under current labour conditions, she added.
“Organizations have to do a lot to accommodate employees who are requesting a reasonable accommodation that is medically supported. So employers, organizations and service providers should really take note of what's happening around the duty to accommodate, particularly because there's an expanding definition of disability,” Hancock said.
“Also… human rights tribunals and litigators are going to be more likely to hold the organization accountable to making sure that people can participate fully in the employment cycle, especially with the labour shortage that Canada currently finds itself in. In the future, it's really important that persons with disabilities are fully integrated into the workforce.”
