Workplace Human Rights

Substantive

The obligation upon the employer is reasonable accommodation, which may or may not result in full accommodation.

When reasonable steps are taken, and does not reach the complete end requested by the complainant:

..the complainant must either sacrifice his religious principles, as this case was in that instance, or employment”.

This often quoted passage comes from the Supreme Court of Canada in OHRC v Simpson-Sears, known as "O'Malley". The complainant's religion prevented her from working from sundown on Friday evening to sundown on Saturday. In that such a position was not available with these working hours, she had accepted part-time employment.

She had been employed in retail women's clothing as a sales representative from 1971 to 1978. In October of this year, she joined the Seventh Day Adventist Church and was then unable to work the Sabbath hours. The employer was unable to offer such hours which resulted in her accepting other part-time hours. In July of 1979, she married. She then advised she was not interested in full time employment. Her claim for lost income became the difference in incomes from October 1978 to July of 1979.

At the first level hearing before the Ontario Board of Inquiry, the adjudicator found that the Human Rights Commission had not proven a failure to accommodate on the part of the employer. It dismissed the complaint.

The Divisional Court agreed but for different reasons. This court found that the intent to discriminate was required and saw none on these facts. The case proceeded to the Court of Appeal which came to the same conclusion.

The Supreme Court reversed in finding that the intent to discriminate was not a requirement. This court found that the employer was liable in the financial sum sought as it had introduced no evidence of any attempts made to accommodate the complainant's religious practices, as this onus was upon it, not the Commission once a prima facie case had been shown.

The references made in the decision to the complainant's need to consider less than perfect accommodation were obiter.

That being said, this court did stated that the employee cannot expect a perfect solution. Such a person must be prepared to accept accommodation which is reasonable.

As to the precise steps take to show substantive accommodation, the Supreme Court of Canada again stated that the factors of undue hardship are not defined, but “must be applied with common sense and flexibility”. These will include “the cost of possible accommodation method, employee morale and mobility, the interchangeability of facilities, and the prospect of interference with the other employees’ rights or of disruption of the collective agreement”.1

A further review of this issue by the Supreme Court of Canada came in the July 2008.  2 The Supreme Court explained the test of “impossible” with respect to the “undue hardship” test.

It was concluded that the employer may discharge with impunity where there has been reasonable accommodation and the employee will not be able to resume work in the reasonably foreseeable future. What is required is not proof of accommodation as being impossible, but rather proof of undue hardship. 3

The Supreme Court spoke to the test used by it in Meiorin considering the question of "undue hardship":

 Among the relevant factors are the financial cost of the possible method of accommodation, the relative interchangeability of the workforce and facilities, and the prospect of substantial interference with the rights of other employees. ....  The various factors are not entrenched, except to the extent that they are expressly included or excluded by statute.  In all cases, as Cory J. noted in Chambly, [1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525], at p. 546, such considerations “should be applied with common sense and flexibility in the context of the factual situation presented in each case”.

The test for undue hardship was stated as something less than “total unfitness for work” in the foreseeable future, but a situation where excessive harm has been shown or the employee has been accommodated and the employer has proven that that the employee is unable to work in the reasonably foreseeable future.

Accommodation by Considering a New Position or "Rebundling"

The Court did state, however, that authorizing staff transfers would be part of such a duty where such may be done without due hardship. The duty to accommodate hence does not stop with consideration being given only to the employee’s existing job. 4

The Ontario Human Rights Tribunal 5 came to the same conclusion. The employer School Board’s own policy on accommodation confirmed this but the decision was supplemented by the policy terms and was not conclusively driven by this factor.

It was this factor and others that caused the Tribunal to find a breach of the duty to accommodate, which ultimately resulted in a reinstatement order and an award of lost income. The lost income award totalled approximately 12 years. 6

The Court of Appeal in this case noted that an employer is not required to place a disabled employee into a position for which she is not qualified. That being said, the court continued to state that an employer may, however, be compelled to place the disabled person into the accommodated position for which she is qualified but not the most qualified.

This issue was again reviewed 7in a case in which the tribunal reviewed conflicting arbitral authorities and concluded that the employer was required to “bundle” or take various tasks from existing positions and create a new one.

The company need not, however, create a job which has no useful benefit to it. 8 Such a “re-bundling” of duties may not always be a viable option. 9

The Board of Inquiry reviewed the employer’s argument that it did not have a legal obligation to create a position for the applicant by offering to her general clerical work. The Board, without deciding this issue,10 determined that the past practice of the employer in offering general clerical work to disabled workers who had received short term disability benefits, exposed it to an argument that it was obliged to continue this practice in this instance in the assessment of the “undue hardship” defence.

The evidence showed a pre-determined intent to terminate the employee, without regard to her diagnosis, prognosis or ability to return to work.

This is all subject to the defence of undue hardship and also to the requirement that the newly created position is useful and productive, as noted. The Tribunal also noted that a distinction should be drawn, in this context, between a temporary accommodation and a need to accommodate to a permanent disability, the latter giving rise to a lower threshold of undue hardship.

Frustration Test

The analysis undertaken is to first apply the test of frustration and the common law test of Marshall referenced below and then ask whether it would otherwise have caused the employer undue hardship not to terminate. 11 To the list of factors of Marshall, 12 the Tribunal added two others, these being (1) the role the employer played in the development of the disability, as it was shown the employer contributed to her illness some of which was non-culpable such as a more aggressive workplace environment, and (2) the rude and offensive conduct of a superior which played a role in the decline of the health of the complainant.

Statutory Definitions of Undue Hardship

Some jurisdictions define the factors to be considered in the assessment of “undue hardship”. Other statutes do not do so and allow the common law interpretation to provide the guidelines.

Ontario, for example, considers “the cost, outside sources of funding, if any, and the health and safety requirements. The Canadian Human Rights Act uses the factors of “health, safety and cost”. The Yukon adds additional considerations such as disruption to the public, effect on existing contracts and business efficiency. Saskatchewan also considers the financial stability of the employer.

The defence of frustration in a human rights context is “the basis upon which an employer may be able to justify a prima facie discriminatory termination of the employment of a disabled employee as a BFOR. 13That is, there may be a point at which, due to frustration, the employer’s obligation to continue to accommodate the disabled employee will come to an end”.

The real question often is whether the employer has shown it has fulfilled its duty to accommodate the disability.

Even where the employment relationship may be said to have been subject to a prolonged interruption, there cannot be a finding of frustration until the employer has shown reasonable accommodation, as long as this may be done without undue hardship. 14

Once a suitable accommodated position has been found, the disabled employee is to be treated the same as any other worker, in the event, for example, of a lay-off. There is no incremental protection afforded. 15

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