The British Columbia Human Rights Code is an important piece of law that aims to foster a society in which impediments to full and free participation in the economic, social, political and cultural life of citizens are removed. Employment, as the driver of our economy, falls under the authority of the Code, and there are 14 prohibited grounds of discrimination in the workplace, including age, gender, race and place of origin.
In relation to the Human Rights Code, discrimination is considered to be negative, differential treatment on the basis of a protected ground. To take a simple example, I’m looking to hire two workers in the same position. I offer the female worker $15 an hour, and her male counterpart $20 an hour, for no reason other than gender-based stereotypes. Clearly, I am treating the female employee differently than the male employee. This is discrimination.
However, Canadian human rights law also imposes a duty to accommodate. This requires employers to ensure that persons with characteristics protected under the Code are not unfairly excluded where working conditions can be adjusted. The purpose is to remove barriers to employment and allow continued participation. The duty to accommodate has most often been applied in cases of persons with physical or mental disabilities, but has also been used in accommodating religious beliefs and parental obligations.
In considering whether the duty to accommodate has been engaged, five important questions must be asked:
1) Is there a protected human rights ground in play?
The first question for an employee and an employer to consider is whether the protections afforded by the Human Rights Code apply. While this question seems simple enough, in reality it can be the subject of much debate. For example, is stress a disability? Does a sick child engage the duty to accommodate family status? Mental health and family obligations are increasingly top of mind and what may not have been considered protected in the past may well be today.
2) Is the employer aware of it that the worker has a protected characteristic?
Communicating limitations is a common hurdle for many employees. Often, employees are suffering from a health issue and are put on leave by their family doctors, but only communicate this to the employer in the vaguest of terms. A medical note stating “off for one month” may suggest to the employer that the employee is having some challenges, but it may not be sufficient to communicate a limitation or a need for accommodation.
Also, many physical or mental disabilities requiring accommodation are not visible. The person living with diabetes or cancer may have accommodation needs, but if the employer is unaware of the disability, their obligation to accommodate them is questioned. For these reasons, while many employees would prefer to keep their health issues private, for accommodation purposes, limitations and the need for accommodation should be properly communicated to their employer.
Note that I place emphasis here on communicating limitations, and not disability. If a warehouse employee can’t lift above her head due to a shoulder injury, specifics of the injury are rarely required for accommodation purposes. What’s relevant to the company is how the injury impacts work activities, how it can be accommodated, and how long the accommodation is necessary.
3) Does the employer have all of the information needed to accommodate?
If the first two questions have been satisfied, the employer’s duty to accommodate will become engaged. There is no set formula for accommodation, and therefore employers will have to investigate options and provide an individualized accommodation plan for the employee. In order to do so, employers will need information from the worker to ensure the accommodation is appropriate.
Employees are understandably sensitive when it comes to their health and their personal information. However, workers also have obligations to participate in the accommodation process. This can include acquiring medical reports and providing employers with updates from healthcare providers. This can also include providing the employer with feedback as to whether the accommodation is meeting their needs or whether their limitations are progressing or digressing. This information is necessary in order to tailor accommodation needs.
4) What accommodation options are available?
Often, accommodation can be very simple. For example, perhaps the employee living with diabetes cannot work alone. Perhaps the employee with anxiety needs less overtime. Perhaps the person fighting cancer needs flexible duties to accommodate regular visits to healthcare providers. These types of simple accommodations can be easily implemented.
However, other issues are not nearly as simple. Think of the taxi driver who is suffering from degenerative vision loss, or the construction worker who suffers a debilitating back injury. In these types of circumstances, the employer’s accommodation investigation must be more extensive. This may include modifying duties, re-assignment to a new position and purchasing occupational or ergonomic equipment to ensure that the employee can safely fulfill their obligations.
5) Would accommodation cause undue hardship?
What happens when the employer conducts an accommodation investigation, but is unable to provide the employee with productive employment due to the his or her limitations? In these circumstances, the employer may be able to claim that they are unable to accommodate the employee without creating undue hardship. What constitutes undue hardship will depend on the facts of each case, however, by its name alone, it does suggest that some hardship is to be expected.
In accommodating employees, all employers can expect there to be some financial cost, some setbacks in productivity and some inconvenience. In considering accommodation options, however, an employer will not be expected to keep a disabled employee in a unproductive “make work” project. An employer may also not be expected to unduly disrupt the workplace or compromise the safety of co-workers. Another consideration in assessing undue hardship will be the size of the employer’s operations. This final point suggests that the larger the business, the more expense and inconvenience the employer can be expected to assume. If an exhaustive accommodation investigation has been conducted and appropriate options do not present themselves, the employer may be able to show that the employee no longer meets the bonafide occupational requirements of the position and claim that it is unable to accommodate the employee without creating undue hardship.
The duty to accommodate and undue hardship are complicated legal issues which impose high obligations on employers. Improper management of a human rights issue or jumping too quickly to an undue hardship claim can result in a complaint to a human rights commission and thousands of dollars in damages. For this reason, it is strongly encouraged that anybody facing challenges with workplace accommodations seek employment advice with experienced legal counsel.
By David M. Brown, Kent Employment Law
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