'They were trying to rely on a policy but they applied it rigidly, and that's not going to cut it'
“The steps an employer takes to accommodate an employee is just as important as the accommodation itself - it’s going to be hard to show you’ve accommodated the employee to the point of undue hardship if you don’t follow the proper process.”
So says Nhi Huynh, an employment lawyer at Williams HR Law in the Greater Toronto Area, after Air Canada was ordered to pay a worker more than $30,000 in discrimination damages for denying the worker a promotion because of physical limitations from a workplace injury.
The worker joined Air Canada in 2011 as a call centre agent in Montreal. He worked in that role until January 2016, when a loud screech and static came through his headphones and hurt his ears. This caused continuous ringing and buzzing in his ears afterwards.
The worker filed a claim with Quebec’s workers’ compensation authority (CNESST), which was initially refused but later resolved with a settlement. A memorandum of agreement (MOA) dated Oct. 31, 2016, set out that the worker could not return to his call centre position and the parties would be bound by an audiologist’s assessment.
In January 2018, the audiologist determined that the worker could be employed with functional limitations of no headset use and minimal telephone use. In addition, he should have a quiet workplace or constant background noise that didn’t require hearing protection.
Accommodated position
The parties agreed to accommodation with the role of customer sales and service specialist at the Montreal airport. The worker started on March 18, 2018, and signed a second MOA stating that this was a complete and final resolution of “all items related to this situation.”
Air Canada approached the situation well by consulting with the worker and considering accommodation options, says Huynh.
“They consulted with all the relevant parties, made sure to keep the limitations in mind, and where they weren't able to accommodate in that particular position, they considered a different position to accommodate him based on his limitations,” she says. “They did things right in both the procedural aspect and the substantive aspect of accommodation.”
On Feb. 27, 2019, the worker hit his head on the door frame of an airplane, causing a mild traumatic brain injury. He successfully claimed workers’ compensation benefits and his family physician determined that he could return to work without any restrictions.
However, the worker still felt effects from the injury and consulted two other doctors. He submitted a claim to the CNESST for an aggravation of his condition, but it was denied. He appealed.
Applied for new position
In April 2019, the worker applied for a security operations specialist position on a project called the passenger service system (PSS). He believed that he could do the job without any accommodation, as much of it involved email with only some phone calls.
The worker had two successful interviews and, on April 29, a member of the interview committee called and congratulated him on getting the job.
However, within the next couple of days, Air Canada’s manager of disability management told the worker that the new position didn’t meet his physical restrictions as set out in the MOA. The new position required the use of a telephone with the possibility of many calls, and everyone around him would be using headsets in a “potentially chaotic environment.” The manager of HR confirmed that his permanent limitations prevented him from filling the position and also that Air Canada had a policy that no one could be re-assigned if they had a pending workers’ compensation claim.
Air Canada basically did the opposite of what it did before by making assumptions and not consulting with the worker, according to Huynh.
“Accommodation is a very context-specific process that you have to assess on a case-by-case basis,” she says. “They were trying to rely on a policy but they applied it rigidly, and that's not going to cut it because it's not going to allow the employer consider the individual's accommodation needs.”
Reassigned, laid off
The worker didn’t return to the sales agent position and his doctor filed medical reports saying that he could work with temporary restrictions such as no heavy lifting, bends, or prolonged standing. Air Canada was unable to find any positions that met these restrictions until Nov. 13, when it found a temporary assignment as a check-in agent.
On June 29, 2020, Air Canada laid off the worker as part of a layoff of nearly half of its workforce due to the pandemic. The PSS project continued operating with remote work.
In January 2021, the worker was still on layoff, so he found work with another employer. In April, Air Canada sent him a recall letter, but he didn’t follow up because he was earning more money at his new job.
The worker filed a human rights complaint alleging that the denial of the PSS job was discriminatory on the basis of disability. He also filed a complaint related to the layoff from his accommodated position, because he would have been able to continue working had he been appointed to the PSS position.
Air Canada maintained that the worker wasn’t able to perform the duties of the PSS job because of his limitations and it couldn’t accommodate him. The airline also argued that the CNESST had exclusive jurisdiction to deal with accommodation issues when the injury is work-related, leaving the tribunal without authority in the matter.
Disability a factor in denial of job
The Canadian Human Rights Tribunal found that the worker had a physical impairment that caused permanent functional limitations at the time that he applied for the PSS position and this qualified as a disability. The denial of the job after he had been told he had been selected was an adverse impact, said the tribunal.
The tribunal also found that it was clear that the worker’s disability was a factor in the decision to deny him the job opportunity, as Air Canada told him that one of the reasons was his permanent limitations. This established the three elements for prima facie discrimination, leaving Air Canada with the onus of proving that the worker couldn’t be accommodated in that position.
The tribunal determined that Air Canada didn’t demonstrate that bona fide occupational requirements prevented the worker from performing the PSS job duties because it didn’t even consider accommodating him. The manager of disability management decided that the worker couldn’t do the job based on his personal assessment of the worker’s limitations, although he acknowledged that he didn’t assess the sound level at the PSS workplace or the extent of telephone calls that would be necessary, the tribunal said.
“They weren't taking the time to really consider the facts with respect to undue hardship, which you need to meet if you're going to allege a bona fide occupational requirement,” says Huynh. “It was putting the cart before the horse and assuming that they understood the duties of the job, and then assuming that the worker wasn't able to do it with or without accommodation.”
The tribunal also found that the worker didn’t have to disclose his limitations to the interviewers because he felt that he didn’t require accommodation and the issue of discrimination only arose when Air Canada denied him the job.
Workers’ compensation claim resolved
As for jurisdiction and Air Canada’s policy on not reassigning an employee with an ongoing workers’ compensation claim, the tribunal noted that the worker’s limitations were from his ear injury, for which the workers’ compensation and accommodation issues had been settled in March 2018. The case that was still open with the CNESST was for the worker’s head injury, which had nothing to do with the limitations with which Air Canada was concerned about, the tribunal said.
Air Canada was ordered to pay the worker the difference in what he would have earned in the PSS job and what he did earn from the date the job was denied to him in May 2019 to when he found new work in January 2021 - $15,472. In addition, the airline had to pay $10,000 in damages for pain and suffering from the discrimination and $5,000 in special compensation for its “indifference to the consequences of these actions,” for a total of $30,472 plus interest.
Even employers with the best intentions can be liable for damages, says Huynh.
“In this case, the disability management manager wasn't trying to be malicious, he was trying to protect the employee and comply with the functional limitations,” she says. “But problems are created where frontline managers aren't properly trained and they can't identify or appropriately respond to accommodation requests.
“Like in this case, they might unintentionally discriminate because they've assumed that the employer can't accommodate something without undue hardship, so it's really important to train your employees to do a proper accommodation assessment that takes into account all the relevant details.”
See Marcovecchio v. Air Canada, 2023 CHRT 56.
