Pregnant Alberta woman’s discrimination complaint shows employers must be careful to treat all employees fairly
In a recent article, I referred to the duty to accommodate as a potentially endless source of frustration. (See the Jan. 31, 2007 issue or go to www.employmentlawtoday.com, click on “advanced search” and enter article # 1195.) That article reflected the perspective of those who work, on behalf of organizations, to deal with all of the issues relating to the accommodation of disabled workers.
There is another, sometimes diametrically opposed, perspective. The need for accommodation can also be an endless source of frustration for those who truly are in need of accommodation. Sometimes, employers just don’t get it right, either intentionally or simply out of carelessness or lack of knowledge. For an individual seeking to overcome a disabling condition and earn a living, this can be an exasperating and demoralizing experience.
Where did CN go wrong?
Recently, Canadian National Railway (CN) found itself the subject of a discrimination claim when it was alleged to have failed to accommodate an employee, Catherine Hoyt, during her pregnancy. Ultimately, the claim succeeded and CN was found to have discriminated against her in violation of human rights legislation. The interesting question is: “Where did CN go wrong?”
Hoyt worked for CN for 11 years. Her last position was as a yard conductor at a facility in Edmonton known as the Walker Yard, where trains are assembled and reassembled as needed using a complex system. The system uses locomotive control units, generally referred to as “beltpacks,” which are strapped to a worker’s body and allow the yard conductors to start, stop and control a locomotive. They have a safety feature which stops the locomotive after a few seconds if the beltpack is tipped beyond a 45 degree angle. This is designed to protect the conductor if they fall or become incapacitated. Hoyt discovered she was pregnant in February 2002. When she began to experience pain and discomfort while working, she consulted her doctor, who wrote a letter to CN explaining Hoyt required modifications to her job in order to accommodate her pregnancy. Specifically, she was to avoid hazards, strenuous activities and using the six-pound beltpacks. Hoyt delivered this letter on Feb. 18, 2002, and was told to go home on an unpaid leave until CN had time to consider the matter.
An assistant supervisor inquired as to whether other departments at CN had any positions available for a pregnant woman, but found nothing. On Feb. 25, Hoyt received a letter from CN which proposed she be placed on an afternoon shift as a yard conductor in a different part of the Walker Yard. The position would require the use of a beltpack. The letter concluded by advising that:
“If you feel you can not operated (sic) the LCS equipment the company will grant you a leave of absence without pay. At this time it is not reasonable practicable (sic) to modify your job function where the LCS equipment is not used.”
Worker distressed by offer
Hoyt was particularly distressed by this offer, as this position was more rigorous than her regular job and she was being asked to continue using the beltpack her doctor had specifically advised her not to use. She called her union, which had no knowledge of the accommodation proposal.
Hoyt went back to her doctor, who provided a more detailed letter explaining that the beltpack would cause abdominal pressure, put weight on the developing fetus and cause backache as the pregnancy progressed. In response, CN proposed Hoyt work in her former position but not use the beltpack. Instead, she would be provided with a radio and her co-worker would control the train in both directions. CN also proposed Hoyt work a regular afternoon shift, which would require that she have super seniority status.
Union rejects accommodation
The union reviewed this proposal and rejected it based on two grounds: a safety concern due to Hoyt not having a beltpack and a concern about the super seniority status, which might cause other employees to lose shifts. Hoyt shared these concerns and was also concerned about her relations with other employees if she was placed on the afternoon shift. After all, another female colleague of hers had been harassed after she received a similar accommodation.
On March 1, 2002, CN said it was unable to offer any further accommodation. On March 4, Hoyt requested information regarding what positions CN had considered for her and who her contact person would be going forward. CN did not respond to this request. Hoyt remained off work on an unpaid leave.
Worker offered driving job
Almost three months later, on May 25, 2002, CN contacted Hoyt and advised it had a position for her driving a crew van, starting May 28. Hoyt immediately accepted the offer. However, she had to arrange care for her two-year-old daughter. She had made arrangements at the beginning of the accommodation process but, by this time, she had been at home for three-and-a-half months. Remarkably, within three days, Hoyt was able to arrange for child care for every shift except for three Saturdays in June.
When Hoyt returned to work on May 28, she told CN she would not be able to work on those three Saturdays and her supervisor said he would see what he could do. On June 4, she went back to see what arrangements had been made and was told CN would accommodate her by allowing her to take unpaid leave on those days.
Altercation with supervisor
This upset Hoyt and she had a verbal altercation with her supervisor. She left his office and felt she was unable to drive the crew van safely. During her drive home, she experienced shortness of breath and pain in her abdomen. She drove directly to the hospital and was tested. The next day, she went to see her doctor and was advised that the stress she was experiencing regarding the issue of accommodation was endangering her health and could harm her fetus. She was directed to stay off work for a month. Hoyt remained at home and applied for workers’ compensation benefits. CN contested the application, which was ultimately denied. She did receive some sick benefits and returned to work in early July driving the utility van until she went on maternity leave. She filed a claim against CN alleging discrimination on the basis of sex.
The tribunal confirmed that:
“Where an employer has communicated a proposal that would fully accommodate an employee’s needs or restrictions and that is reasonable in the circumstances, the employer’s duty is satisfied. It then becomes the duty of the employee and, in a collective bargaining environment, the duty of the union, to accept and to facilitate the implementation of the proposal.”
The tribunal considered the two proposals made by CN and found neither of them accommodated Hoyt’s requirements. The first one, which required Hoyt to continue wearing the beltpack, was contrary to the medical advice of her doctor. The second proposal raised serious concerns regarding Hoyt’s safety and seniority issues. The tribunal noted the message conveyed by the second proposal would be prima facie discriminatory:
“If implemented, the proposal would mean that Ms. Hoyt (and only Ms. Hoyt) would be navigating the Walker Yard, among its 40 tracks, the moving rail cars weighing 30 to 130 tons and stretching as much of a mile long, without the equipment, the protection, that the general operating instructions afford every other employee on a two conductor crew.” The tribunal was particularly concerned by evidence that others withinCN, including Hoyt’s own husband, were accommodated to far greater lengths than Hoyt. Three days before Hoyt’s request for accommodation, a conductor injured his ankle. He obtained a note from his doctor and was told to come in the next day, where he was put to work in the administration office. Although he left after lunch each day to attend physiotherapy and then went home, he was paid for his full shift.
Nine days after Hoyt’s request, her husband, a conductor, became unable to use the beltpack due to back pain. He was also told to come in the next morning, where he joined the other employee in the administration office. He was later reassigned to a point protection position on a three-person crew.
The tribunal found a prima facie case of discrimination and CN was unable to justify its conduct. It ordered CN to compensate Hoyt for all lost wages and benefits from Feb. 18, 2002, to the date she returned in July 2002, minus any amounts that had already been paid. In addition, the tribunal ordered CN to pay $15,000 for the pain and suffering experienced by Hoyt and a further $10,000 in special compensation due to the fact CN knew it was engaging in a discriminatory practice, or was at least reckless in believing it was not. Finally, Hoyt requested and received compensation for the legal costs she incurred during the course of the proceedings.
Previously, the difficulty of accommodating an employee where the information regarding the restrictions is vague or confusing was discussed. In the CN case, the restrictions were clearly laid out by her doctor. CN, for whatever reason, did not appear to take these restrictions seriously at the outset. Subsequently, it made proposals that were unacceptable for a variety of reasons while at the same time accommodating other employees far more readily.
The law is fairly clear: Employers have a duty to accommodate to the point of undue hardship. The CN case provides a good example of how organizations can fail to meet this requirement. To avoid such a situation, employers are well advised to take all requests for accommodation seriously, work with the employee and, if applicable, the union, and ensure they treat all employees fairly, without intentionally or unintentionally discriminating against any individual or group.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected]
There is another, sometimes diametrically opposed, perspective. The need for accommodation can also be an endless source of frustration for those who truly are in need of accommodation. Sometimes, employers just don’t get it right, either intentionally or simply out of carelessness or lack of knowledge. For an individual seeking to overcome a disabling condition and earn a living, this can be an exasperating and demoralizing experience.
Where did CN go wrong?
Recently, Canadian National Railway (CN) found itself the subject of a discrimination claim when it was alleged to have failed to accommodate an employee, Catherine Hoyt, during her pregnancy. Ultimately, the claim succeeded and CN was found to have discriminated against her in violation of human rights legislation. The interesting question is: “Where did CN go wrong?”
Hoyt worked for CN for 11 years. Her last position was as a yard conductor at a facility in Edmonton known as the Walker Yard, where trains are assembled and reassembled as needed using a complex system. The system uses locomotive control units, generally referred to as “beltpacks,” which are strapped to a worker’s body and allow the yard conductors to start, stop and control a locomotive. They have a safety feature which stops the locomotive after a few seconds if the beltpack is tipped beyond a 45 degree angle. This is designed to protect the conductor if they fall or become incapacitated. Hoyt discovered she was pregnant in February 2002. When she began to experience pain and discomfort while working, she consulted her doctor, who wrote a letter to CN explaining Hoyt required modifications to her job in order to accommodate her pregnancy. Specifically, she was to avoid hazards, strenuous activities and using the six-pound beltpacks. Hoyt delivered this letter on Feb. 18, 2002, and was told to go home on an unpaid leave until CN had time to consider the matter.
An assistant supervisor inquired as to whether other departments at CN had any positions available for a pregnant woman, but found nothing. On Feb. 25, Hoyt received a letter from CN which proposed she be placed on an afternoon shift as a yard conductor in a different part of the Walker Yard. The position would require the use of a beltpack. The letter concluded by advising that:
“If you feel you can not operated (sic) the LCS equipment the company will grant you a leave of absence without pay. At this time it is not reasonable practicable (sic) to modify your job function where the LCS equipment is not used.”
Worker distressed by offer
Hoyt was particularly distressed by this offer, as this position was more rigorous than her regular job and she was being asked to continue using the beltpack her doctor had specifically advised her not to use. She called her union, which had no knowledge of the accommodation proposal.
Hoyt went back to her doctor, who provided a more detailed letter explaining that the beltpack would cause abdominal pressure, put weight on the developing fetus and cause backache as the pregnancy progressed. In response, CN proposed Hoyt work in her former position but not use the beltpack. Instead, she would be provided with a radio and her co-worker would control the train in both directions. CN also proposed Hoyt work a regular afternoon shift, which would require that she have super seniority status.
Union rejects accommodation
The union reviewed this proposal and rejected it based on two grounds: a safety concern due to Hoyt not having a beltpack and a concern about the super seniority status, which might cause other employees to lose shifts. Hoyt shared these concerns and was also concerned about her relations with other employees if she was placed on the afternoon shift. After all, another female colleague of hers had been harassed after she received a similar accommodation.
On March 1, 2002, CN said it was unable to offer any further accommodation. On March 4, Hoyt requested information regarding what positions CN had considered for her and who her contact person would be going forward. CN did not respond to this request. Hoyt remained off work on an unpaid leave.
Worker offered driving job
Almost three months later, on May 25, 2002, CN contacted Hoyt and advised it had a position for her driving a crew van, starting May 28. Hoyt immediately accepted the offer. However, she had to arrange care for her two-year-old daughter. She had made arrangements at the beginning of the accommodation process but, by this time, she had been at home for three-and-a-half months. Remarkably, within three days, Hoyt was able to arrange for child care for every shift except for three Saturdays in June.
When Hoyt returned to work on May 28, she told CN she would not be able to work on those three Saturdays and her supervisor said he would see what he could do. On June 4, she went back to see what arrangements had been made and was told CN would accommodate her by allowing her to take unpaid leave on those days.
Altercation with supervisor
This upset Hoyt and she had a verbal altercation with her supervisor. She left his office and felt she was unable to drive the crew van safely. During her drive home, she experienced shortness of breath and pain in her abdomen. She drove directly to the hospital and was tested. The next day, she went to see her doctor and was advised that the stress she was experiencing regarding the issue of accommodation was endangering her health and could harm her fetus. She was directed to stay off work for a month. Hoyt remained at home and applied for workers’ compensation benefits. CN contested the application, which was ultimately denied. She did receive some sick benefits and returned to work in early July driving the utility van until she went on maternity leave. She filed a claim against CN alleging discrimination on the basis of sex.
The tribunal confirmed that:
“Where an employer has communicated a proposal that would fully accommodate an employee’s needs or restrictions and that is reasonable in the circumstances, the employer’s duty is satisfied. It then becomes the duty of the employee and, in a collective bargaining environment, the duty of the union, to accept and to facilitate the implementation of the proposal.”
The tribunal considered the two proposals made by CN and found neither of them accommodated Hoyt’s requirements. The first one, which required Hoyt to continue wearing the beltpack, was contrary to the medical advice of her doctor. The second proposal raised serious concerns regarding Hoyt’s safety and seniority issues. The tribunal noted the message conveyed by the second proposal would be prima facie discriminatory:
“If implemented, the proposal would mean that Ms. Hoyt (and only Ms. Hoyt) would be navigating the Walker Yard, among its 40 tracks, the moving rail cars weighing 30 to 130 tons and stretching as much of a mile long, without the equipment, the protection, that the general operating instructions afford every other employee on a two conductor crew.” The tribunal was particularly concerned by evidence that others withinCN, including Hoyt’s own husband, were accommodated to far greater lengths than Hoyt. Three days before Hoyt’s request for accommodation, a conductor injured his ankle. He obtained a note from his doctor and was told to come in the next day, where he was put to work in the administration office. Although he left after lunch each day to attend physiotherapy and then went home, he was paid for his full shift.
Nine days after Hoyt’s request, her husband, a conductor, became unable to use the beltpack due to back pain. He was also told to come in the next morning, where he joined the other employee in the administration office. He was later reassigned to a point protection position on a three-person crew.
The tribunal found a prima facie case of discrimination and CN was unable to justify its conduct. It ordered CN to compensate Hoyt for all lost wages and benefits from Feb. 18, 2002, to the date she returned in July 2002, minus any amounts that had already been paid. In addition, the tribunal ordered CN to pay $15,000 for the pain and suffering experienced by Hoyt and a further $10,000 in special compensation due to the fact CN knew it was engaging in a discriminatory practice, or was at least reckless in believing it was not. Finally, Hoyt requested and received compensation for the legal costs she incurred during the course of the proceedings.
Previously, the difficulty of accommodating an employee where the information regarding the restrictions is vague or confusing was discussed. In the CN case, the restrictions were clearly laid out by her doctor. CN, for whatever reason, did not appear to take these restrictions seriously at the outset. Subsequently, it made proposals that were unacceptable for a variety of reasons while at the same time accommodating other employees far more readily.
The law is fairly clear: Employers have a duty to accommodate to the point of undue hardship. The CN case provides a good example of how organizations can fail to meet this requirement. To avoid such a situation, employers are well advised to take all requests for accommodation seriously, work with the employee and, if applicable, the union, and ensure they treat all employees fairly, without intentionally or unintentionally discriminating against any individual or group.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected]
