The Duty to Accommodate a Medical DisabilityWritten on behalf of Peter McSherry
Accommodation under Human Rights Law
The issue of accommodation is a cornerstone of human rights law. Although its application is often applied to disability issues in the workplace, this duty to accommodate applies to all human rights issues.
Duty to Accommodate to the Point of Undue Hardship
Take for example a job advertisement which states that the employer is seeking only female applicants. This is clearly in violation of the gender-neutral requirements of the Human Rights Code. A male person applies for the job and is rejected. If he were to file a human rights complaint, he could clearly establish a “prima facie” or evident case. However, the employer could defend the job ad by arguing that this particular position requires a female worker due to the sensitive nature of the position (for instance, if the position was for, an intake worker at a shelter for abused women).
The employer would then still have to show that it did its utmost to accommodate male applicants to the point of undue hardship. For example, did it offer sensitivity training to allow male workers to understand how to relate to and interview an abused female? Did it use external professionals to understand whether there were other means of determining, for instance, if an abused woman would feel safe speaking to a male worker about her intimate personal history?
Accommodating a Disability
It is true that disability issues often magnify the duty to accommodate. Take as a vivid example the decision of the Ontario Court of Appeal which upheld the Human Rights Tribunal in Fair v Hamilton. In that decision, it was found that the employer had failed to accommodate the applicant’s disability of a general anxiety disorder. This condition had been caused by a fear of prosecution due to her position of authority as Supervisor, Regulated Substances, Asbestos. This failure to accommodate led to a termination decision which was ultimately reversed by the Tribunal which ordered reinstatement, back pay and $30,000 damages for injured feelings. The final count of backpay was roughly 14 years.
Regional Municipality of Waterloo
A recent decision of the Human Rights Tribunal considered a similar argument, although one with dramatically less severe legal consequences, in a case involving the Regional Municipality of Waterloo.
The applicant in this case also suffered from a medical disability, Asperger’s syndrome. He had been off work to this disability from June of 2011 to September 2012. In preparation for his anticipated return to work, he met with representatives of the employer in mid- September. The case presented against the employer asserted that at this meeting and upon his actual return to active employment, he was not given proper accommodation due to his disability.
The Tribunal noted that symptoms of this disability was being unusually susceptible to noise, bright lighting, and crowded places, an inability to recognize social cues, exhibiting social issues when under stress, and needing clear communications which ideally should be supported by written communications.
The return to work meeting was found by the Tribunal to have been unduly stressful as it was conducted without regard to the particular medical vulnerabilities of the employee and conducted in the same manner as would have been done with an employee who did not require accommodations. This left the applicant employee confused and stressed. He asked for copies of the documentation he had been asked to sign but this request was denied. Due to this context and the refusal to allow more time to review the documents, his stress increased.
Similar issues followed once the applicant returned to work. In essence, his complaints centred on the failure of the employer to recognize that its actions must be nuanced to deal with an employee suffering from this disorder. One example was the delivery of a backdated letter of expectation that was written in a threatening tone, even though it was intended to be non-disciplinary. The conduct of the employer simply failed to show appreciation of, and hence proper accommodation to, the medical disability of the employee.
An award of compensatory damages for injured feelings was made of $10,500. There was no claim made for other relief such as lost wages.
Human Rights Matters Require Advice
Human rights remedies are difficult roads to navigate. If you are facing adverse treatment due to a physical or mental disability, or other human rights violation, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the legal process, advise you and help you assert your rights. Contact us online or by phone at 519-821-5465 to schedule a consultation.