Hearing aid plea falls on deaf ears (Legal view) <!-- sponsoredarticle -->

Teacher argues school board had duty to accommodate disability

Does an employer’s duty to accommodate a disabled worker extend to personal assistive devices? An arbitration board recently answered that question with a “no.” Mostly.

In 1995, Anju Mootilal was hired by the Toronto District School Board to teach special-education students. Mootilal has serious hearing problems and did not receive any special treatment with regard to a personal hearing aid system at work. 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 tried a digital hearing aid system, which she said improved her hearing and ability to do her job. However, she couldn’t afford the hefty price tag — $3,470 — so she returned them. In 2004, she bought one new analog hearing aid but also continued to use the other one bought in 1997.

Mootilal’s union launched a grievance, arguing the board had a duty to accommodate her disability — at least while she was working.

The union argued the school board discriminated against her because of the benefit cap on hearing aids. It also said the board did not have the necessary bona fide occupational requirement that would have allowed it to deny her a more efficient hearing aid. Finally, the union argued the board could pay the $3,470 without undue hardship. What was unique in this case was that the only “practical and effective” form of accommodation was “to her person” as opposed to making changes to her workplace.

The school board said it had negotiated the cap on the hearing aid benefit with the union and Mootilal was being treated the same as all other employees, including disabled employees 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 glasses or wheelchairs — other personal assistive devices people use to function outside the workplace. Not only that, the teacher’s immediate superiors and parents of her students were very happy with her work. Therefore, she didn’t need accommodation to do her job. The board also pointed out she had never formally complained about her inability to hear as clearly as she would have liked.

The arbitration board agreed the school board could not contract out of its obligation to accommodate using the loophole of a capped benefit clause. But the real question was whether or not 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. Was the board entitled to limit its duty to accommodate only to modifications to the employee’s workplace and job components? If disabled employees had not equipped themselves with personal devices (like hearing aids, glasses or prostheses) for use in their life outside work, should the employer be expected to provide them at work?

A majority of the arbitration board members concluded it was not up to the employer to upgrade personal assistive devices any more than it would be proper to direct a disabled employee to acquire them.

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

The arbitration board also noted the question of financial undue hardship was irrelevant. The board drew an analogy between providing aspirin to a sufferer of migraine headaches and providing hearing aids to its deaf employee.

“Paying for a bottle of aspirin is not an undue hardship,” but it does not fall within the purview of accommodation, it said. If Mootilal wanted digital hearing aids, it would be her responsibility.

However, the arbitration board also made a surprising assertion: It concluded the parties should discuss the level of accommodation the school board should provide through adjusting her workplace or her job and, furthermore, it should facilitate her ability to purchase the digital hearing aids by arranging “favourable financing and a reasonable re-payment schedule.”

The door seems to have been left wide 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; Michael Riddell and Victoria Corbett – Nominees (Ont. Arb. Bd.).

Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. For more information visit www.hrreporter.com/clv.

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