Accommodation of disability

 By Stuart Rudner

It is well-established that employers in Canada are required to accommodate individuals with disabilities. In Ontario, this issue is governed by the Human Rights Code and, in particular, section 7(1). The code defines a physical disability as “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness." 

Most readers are aware this duty extends to the point of “undue hardship," which is one of those somewhat vague legal terms that, as one American jurist said when describing the test for obscenity, we “know it when we see it." As a result, although many people are aware of the legal obligation, very few understand it and even fewer can define it with specificity.

One recent case attempted to provide some guidance with respect to the process of assessing accommodation. 

The case, Horvath v. Rocky View School Div. No. 41, involved a caretaker who dislocated her right shoulder while at work, necessitating surgery and ultimately resulting in permanent restrictions on her ability to perform her duties. In response, the school board advised that it did not have a suitable position for Horvath and terminated her employment. Horvath brought a claim, alleging she had not been accommodated as required. 

Several factors worked against the employer. To begin with, the evidence revealed it had a policy of not providing permanent accommodation, despite the legal obligation to accommodate. Furthermore, the school board was unable to adduce evidence that it undertook more than a cursory investigation as to the accommodation that would have been required and what might have been feasible.

There was no consideration of other types of work or positions, anywhere within the school board, that Horvath may have been able to successfully undertake and, therefore, the school board could not credibly claim undue hardship would have prevented it from accommodating her. 

The Human Rights Tribunal of Alberta heard this case and in the course of its ruling, confirmed that the analysis of this type of complaint involves two issues: 

• Whether the complainant has made out a prima facie case of discrimination?
• If so, whether the respondent has justified its conduct, including demonstrating it accommodated the complainant to the point of undue hardship? 

The tribunal also confirmed the burden of proof is initially on the complainant to show there was discrimination, but shifts to the respondent once the prima facie case has been made out. 

As the tribunal confirmed, the first step in the analysis is in accordance with the Supreme Court of Canada’s ruling in Moore v. British Columbia (Education): 

“…to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.” 

Of course, this test applies equally to employment situations as it does to service. In Horvath’s case, it was readily apparent that a prima facie existed as her employment was terminated due to the fact she had a physical disability. As a result, the burden of proof shifted to the employer respondent, which had to demonstrate undue hardship prevented it from accommodating Horvath. 

Rocky View took the position Horvath was unable to return to the full duties of her previous position and, in order to accommodate her, it would have needed to create a new position for her. In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000: 

“In the employment context, the duty to accommodate implies that the employer must be flexible in applying its standard if such flexibility enables the employee in question to work and does not cause the employer undue hardship…The goal of accommodation is to ensure that an employee who is able to work can do so.” 

Other leading decisions with respect to the duty to accommodate were also referenced by the tribunal, including the following: 

• Supreme Court of Canada's decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin):   

“When referring to the concept of ‘undue hardship,’ it is important to recall the words of Supinka J. who observed in Central Okanagan School District No. 23 v. Renaud that ‘undue’ infers that some hardship is acceptable… The test is not whether it was impossible for the employer to accommodate the employee's characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work.” 

• Supreme Court of Canada's decision in Moore v. British Columbia (Education):   

“At this stage in the analysis, it must be shown that alternative approaches were investigated. The prima facie discriminatory conduct must also be

‘reasonably necessary’ in order to accomplish a broader goal. In other words, an employer or service provider must show ‘that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.’" 

The case law makes it clear an employer has a positive duty to consider requests for accommodation and must undertake a genuine and thorough analysis of the potential means of accommodation and their impact upon the organization. The tribunal in the Horvath case found that the school board “showed limited understanding of the scope of its duty to accommodate Ms. Horvath and took no effective steps to carry it through. At no juncture did it take more than cursory steps to explore Ms. Horvath's capabilities or what accommodation might be necessary to allow her to return to work." This did not meet the legal requirement. 

Furthermore, according to the evidence given by the supervisor of occupational health and safety and the human resources advisor, Horvath would not be accommodated via permanent placement in a position outside of her field, as the school board's policy was to temporarily accommodate individuals in different roles for a period of six to eight weeks, but not beyond that time frame.

As the court confirmed, “the policy imposes arbitrary and unwarranted restrictions on the school division's duty to accommodate. It has no justification in law. Even if an employee has permanent restrictions, this does not relieve an employer from the duty to accommodate to the point of undue hardship." 

The tribunal concluded Rocky View failed to consider alternatives for accommodation, and therefore did not meet the test set out in the Meiorin decision by showing “it could not have done anything else reasonable or practical to avoid the negative impact on the individual." 

With respect to the issue of undue hardship, Rocky View asserted it would have had to hire a second caretaker, and this would have caused undue hardship, but it did not provide any evidence in support of this assertion. There was no evidence to demonstrate the changes in job duties, reassignments or relocations that would have been required, along with the resulting cost and impact.

Rocky View also did not evaluate Horvath’s ability to take on other positions within the school board, which could have allowed it to simply replace her with someone else in the caretaker role and allow her to work in an entirely different role herself. 

The tribunal also quoted a passage from ADGA Group Consultants Inc. v. Lane, which explains the procedural aspects of the duty to accommodate: 

“The procedural duty to accommodate involves obtaining all relevant information about the employee's disability, at least where it is readily available. You can include information about the employee's current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural" duty to accommodate. 

In assessing whether the employer has met the duty, the employer's efforts must be assessed at the time of the alleged discrimination. An employer may not use after acquired evidence to support its view that an employee could not be accommodated. After acquired information is only relevant to remedy.” 

Given Rocky View’s failure to properly consider potential accommodation and adduce evidence of undue hardship, the tribunal found in favour of Horvath. She was awarded $44,656.48, representing loss of income from the time she became disabled to the time she developed another illness that would have prevented her from continuing to work. In addition, she was awarded $15,000 in general damages to take into account the impact of the discriminatory treatment on her dignity and the negative impact on her personal life, as well as the mental distress she suffered. 

Hopefully, this somewhat lengthy review of a recent decision will provide some guidance with respect to the duty to accommodate. Employers must remember they cannot simply dismiss requests for accommodation out of hand as being unreasonable, impossible, or constituting “undue hardship." Genuine efforts must be made by the employer to assess the need for accommodation and potential methods of providing it. 

At the same time, employees must be aware they are a critical party to the search for accommodation, and they must provide sufficient medical information in order to allow the employer to assess the need for accommodation. As other cases have demonstrated, an employee’s refusal or failure to participate in the accommodation process will defeat any claim based upon allegations of discrimination.