Law takes tough stance on accommodation

The law surrounding an employer’s duty to accommodate is being applied more vigorously.

The Ontario Human Rights Commission sent that message to employers after deciding an Ontario fire department discriminated against a part-time firefighter when they turned him down for a full-time job because he had partial vision in one eye.

Representatives for the Ancaster Fire Department, near Hamilton, admitted they didn’t consider how they could accommodate the employee who could not meet a requirement needed to operate the town’s ambulance.

The ruling is consistent with a precedent-setting human rights case involving a B.C. female firefighter who was fired because she couldn’t meet a running requirement.

Both cases deal with the role of the employer in making special accommodations in certain circumstances and the need to review job requirements to make sure certain groups of people aren’t discriminated against or excluded because of them.

In this recent case, the commission’s board of inquiry found that the fire department discriminated against Mark Jeppesen, who had been working as a part-time firefighter for the southern Ontario town for 10 years. The board adjudicator said the town could have found ways to accommodate Jeppesen’s disability without incurring undue hardship, which primarily concerns costs and health and safety considerations.

At issue in this case was Jeppesen’s inability to obtain a class F driver’s licence because of his deteriorated vision in his left eye. Because the town also provided ambulance services through its fire department at the time, all of its firefighters had to qualify to operate the town’s ambulance. While Jeppesen had met all of the firefighter requirements, including a licence to drive the 45,000-pound fire truck, he could not qualify for the class F licence. Jeppesen lost central vision in his eye from histoplasmosis, an airborne fungal disease.

“The importance of the case is that it is consistent with (the B.C. firefighter case) in that it says you have to build in a quality to requirements. (Employers) really need to think about whether requirement X is okay for everybody and whether it’s necessary,” said Jennifer Scott, the lawyer representing the commission at the Ancaster hearings.

At an earlier hearing, the department claimed they could not accommodate Jeppesen because of staffing levels and training needs. The town argued that when Jeppesen applied for the job in 1997, the department had nine firefighters and could not accommodate a firefighter who could not drive the ambulance.

In fact, said Scott, during the hearings the department admitted they never considered how they could make special accommodations for Jeppesen. The department has recently merged with the City of Hamilton and no longer provides ambulance services.

“In many ways these requirements are set on very able-bodied notions of ability,” said Scott.

With the commission’s decision, Scott said employers will have to re-examine that default thinking.

“The message is that you can’t have this dogmatic adherence to requirements,” she added.

Jeppesen asked for special accommodation granted under the Ontario Human Rights Code, asking to be assigned to firefighter duties exclusively. Another hearing is expected to deal with the violations of Jeppesen’s rights under the code.

“(These cases) are telling employers that they have to be much more critical when developing standards. That they should avoid blanket requirements and think about whether requirements are necessary,” said Scott.

With the board’s decision, Ontario employers are beginning to see the effects of the B.C. case in their own backyard. It also adds to the limited Canadian jurisprudence dealing with accommodation in the workplace.

“Accommodation means you have to do things differently from what you might do for people who don’t have needs,” said Toronto-based human rights lawyer Lynn Bevan.

“In a nutshell, when you are looking at applications of a rule you may have to modify or at least review it if (that rule) has the unintended effect of excluding anybody who would qualify if they were allowed to prove their ability otherwise.”

In the B.C. case, forest firefighter Tawney Meiorin was fired because she could not run 2.5 kilometres in less than 11 minutes.

Meiorin, who had been employed as a full-time firefighter for two years when she was fired, missed the mark by 49.4 seconds.

The Supreme Court of Canada found the test to be discriminatory because women have less aerobic capacity and ordered Meiorin to be rehired with five years’ back pay.

The court found that the physical exam was not necessary “to identify those forest fighters who are able to work safely and efficiently.” The decision sent local fire departments scrambling to review their own practices to ensure they didn’t have the effect of excluding anybody.

Employers have to consider a number of things when deciding whether they can accommodate an employee. Some of these include: how essential is the requirement to the performance of the job on a daily basis; can the operational needs be met in another way.

“As long as the employee can perform the essential duties of a job, with or without accommodation, (the Ontario) decision signals that an employer will not be able to exclude a job candidate or terminate an employee because the employee cannot meet additional or ideal prerequisites,” said Neena Gupta, employment lawyer with the Toronto-based firm Goodman Carr.

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