Written on behalf of Peter McSherry
The basis of establishing a disability clearly may include physical and/or emotional issues. The definition of what may or may not be considered a disability in an employment context is ever-evolving within Canadian employment law.
Basics of the Theory
One recent case out of Nova Scotia considered whether a person claiming an addiction to sex may be found to have a disability within the context of a human rights protected right at work. If this were to be so, the employer would likely not be able to terminate summarily for this reason and would need to show proper and fair accommodation.
The facts of the case were not attractive. The male employee had been found to have been masturbating during working hours on the company premises, in a four-stall washroom. The conduct was commonly overheard by the employee’s co-workers.
The union argued that this conduct resulted from sex addiction and hence his condition should be accommodated and not result in termination, as the employer had done. Both parties had agreed that the conduct in question did not impair his work performance.
The employer had countered with the argument that this conduct was not due to addiction and also pointed out that the employer’s work manual specifically prohibited such conduct. Further, the employee had previously received a warning for the alleged wrongdoing two years prior to termination.
This case failed due to the inability of the employee to prove that the offensive conduct was indeed the result of a disability. Had he called medical evidence to support his position, the case may have found better footing. The employee would also have needed to demonstrate his acceptance of this diagnosis and his commitment to treatment.
Had these steps been followed, he may have been reinstated and recovered back pay. There likely would have been conditions as to a treatment regimen attached, but the remedy could have been allowed with proper foundations.
Given that this decision turned on the evidence, the question still remains as to whether sex addiction will be considered a recognized medical condition and disability protected under human rights legislation in an employment context.
In addition, although not argued here, the mere perception of a disability is also a human rights ground protected in an employment context. Had the employer, for example, asserted that it believed that the employee suffered from a disability when he, in fact, did not, a human rights remedy would have potentially followed.
Employers’ Take Away
Companies should take care to accommodate any perceived disability or actual disability. Failure to do so could result in dramatic consequences for the employer. In one notable action, the failure to accommodate a physical disability led to a successful claim for 11 years back pay and reinstatement.
Employees’ Take Away
This case is a vivid example of the need for careful and meticulous legal strategy before action is taken. This case could readily have taken a different turn with proper medical evidence and planning.
Get Advice and Know Your Rights
It is important to take advice and know your rights on this issue and indeed any employment law issue. Contact the offices of Guelph employment lawyer Peter A. McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.