Accommodation applies to workplace, not personal devices

Arbitration board rules expensive hearing aid upgrade for teacher is not the responsibility of her employer

Since birth, Anju Mootilal had experienced serious hearing problems. In 1995, the board hired her to teach special education students. However, she did not receive any special treatment with regard to a personal hearing aid system at work. As her hearing loss worsened, she compensated by lip reading and sign language and the board installed a volume control box on her home telephone to help her communicate with her pupils’ parents.

In 1997, she used the $400 lifetime benefit provided by her benefits package to buy analog hearing aids. When these wore out in 2002, she decided to try a digital hearing aid system, which improved her hearing and she said significantly improved her ability to do her job.

However, the cost for the digital aids, $3,470, was beyond her means and she returned them to the supplier. In 2004, she was able to afford one new analog hearing aid but continued to use the other one bought in 1997, even though it was now being held together with glue.

Union argues Meiorin

Mootilal’s union launched a grievance, arguing the board had a duty to accommodate her disability — at least while she was working. It used the Supreme Court decision known as the Meiorin case.

The union argued the school board discriminated against Mootilal because of the lifetime benefit cap on hearing aids. In addition, it said the board did not have the necessary bona fide occupational requirement to deny her a more efficient hearing aid. Finally, the union argued the board could pay for the digital hearing aids without undue hardship. What was unique in this case is the only “practical and effective” form of accommodation for Mootilal was “to her person,” as opposed to making changes to her workplace.

The school board said Mootilal was being treated in the same way as other employees, including those disabled, who do not have their requests for personal assistive devices paid for by the board. It likened this kind of accommodation to a request for eyeglasses or wheelchairs — personal assistive devices people use to function outside the workplace in society at large. Mootilal’s superiors were happy with her work and from their point of view she didn’t need accommodation to do her job.

Board rejects Meiorin

The arbitration board agreed the school board could not avoid its obligation to accommodate using the loophole of a capped benefit clause, but it found Meiorin was the wrong avenue to take. That decision determined the standard by which to judge a prospective employee’s ability to perform work, not the policies to be used to accommodate an existing disabled employee.

The question was whether the school board’s decision to provide one form of accommodation (modification of the workplace) but not another (modification of an employee’s person) was discriminatory.

The arbitration board concluded the responsibility of the school board in meeting its duty to accommodate to undue hardship “is properly focused on the workplace and not on the employee’s person or body.” It found that it was not up to the employer to upgrade personal assistive devices any more than it would be proper for it to direct a disabled employee to acquire them.

“An employee’s personal decision respecting his or her own personal bodily integrity does not become work-related merely because he or she enters the workplace,” the board said.

The board drew an analogy with providing aspirin to a sufferer of migraine headaches. Paying for a bottle of aspirin would not be an undue hardship but it does not fall within the purview of accommodation, the board said. If Mootilal wanted digital hearing aids it was her responsibility to get them. The bottom line was if she couldn’t afford them, it was not a matter to be corrected by the duty of accommodation.

Board recommends some assistance

However, the arbitration board also said the parties should discuss the level of accommodation the school board could provide by adjusting her workplace or job and it should facilitate her ability to buy the digital hearing aids by arranging “favourable financing and a reasonable re-payment schedule.” The door seems to have been left open for a reconsideration of the basic question behind this decision: How far does the duty of accommodation extend?

For more information see:

Toronto District School Board and Elementary Teachers’ Federation of Ontario (June 29, 2007), Pamela Cooper Picher, Chair (Ont. Arb. Bd.).

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

Lorna Harris is the assistant editor of CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. Visit for more information.

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