Is it the employer’s duty to inquire whether an employee has a mental disability? The BCHRT recently considered a case that addresses this.
Generally, before an employer can be required to accommodate an employee’s mental disability, the employer must know, or ought reasonably to know, that the employee has such a disability in the first place. It is usually up to the employee to inform the employer of the disability.
If, however, the employer has reason to suspect a disability, the employer may have a “duty to inquire” as to whether the employee has a mental disability, before taking steps that would negatively affect the employee. A failure to make such an inquiry may lead to a finding of discrimination. The recent decision of Hammell v. Corporation of Delta and another, 2017 BCHRT 246, sheds helpful light on the question of whether and how the duty to inquire arises.
The City of Delta (“Delta”) operates the Winskill Aquatic and Fitness Centre (the “Centre”). In January 2016, the complainant, a man in his late 50s and a long-time user of the Centre, was involved in an incident (the “First Incident”). The complainant swam up to three nine-year-old boys playing on a floating raft in the Winskill pool and engaged them in conversation. Due to their discomfort with the situation, the boys swam away.
The aquatic leader of the facility spoke to the on-call manager about the interaction and expressed a belief that the complainant exhibited autistic tendencies, but was not threatening or inappropriate in a sexual way. In response to concerns expressed by a parent of one of the boys, the on-call manager instructed the aquatic leader to ask the complainant to leave. The complainant took offence and later sent an e-mail asserting he was badly jet lagged at the time and meant no harm.
Several months later, the complainant was involved in a second incident, this time relating to a request for personal training services (the “Second Incident”). The complainant contacted Delta and indicated that he wanted to have a particular female trainer, Ms. L, train him. He wrote: “if there was at least a young, hot female trainer like [Ms. L] the pleasure of just being in her presence might help me overcome the pain enough to actually come in consistently to keep my nose to the grindstone.” Upon seeing the e-mail, senior Delta staff revoked the complainant’s facility privileges immediately.
The complainant appealed his banishment. The complainant, an American, asserted that Delta had overreacted to his comments about a “hot” female trainer, stating: “In New Jersey that adjective, in that context would not be considered ‘inappropriate’. Most Jersey girls would just be flattered by it”. His appeal was unsuccessful.
The complainant then claimed that he suffered from reactive hypoglycemia, and that when his blood sugar is off, it can impair his cognition and adversely affect his judgment and behaviour. He suggested that his behaviour in both incidents had been influenced by his hypoglycemia, and claimed that hypoglycemia can cause depression.
The complainant filed a complaint with the B.C. Human Rights Tribunal (the “Tribunal”) alleging discrimination by Delta and a senior staff member (the “respondents”) in the provision of an accommodation, service or facility on the basis of mental disability, contrary to the B.C. Human Rights Code. The respondents filed an application to have the complaint dismissed summarily, which required them to demonstrate that the complaint had no reasonable prospect of success.
The Tribunal’s decision
The Tribunal found that the complainant had some reasonable prospect of establishing that he had a protected characteristic – in this case, the disability of reactive hypoglycemia and depression – and that he had suffered adverse treatment in that he could no longer use the Centre.
The remaining and key issue was whether his alleged disabilities were a factor in Delta’s decision to banish him. A corollary issue was whether the respondents had a duty to inquire as to whether he had a disability.
The Tribunal found that the complainant had no reasonable prospect of establishing that the respondents knew or ought to have known he had a mental disability. The complainant had simply opined after the fact that his behaviour must have been driven by symptoms he was experiencing related to his hypoglycemia. Nothing suggested that the complainant’s disabilities were either known or readily observable.
Addressing the complainant’s argument that his unusual conduct should at least have alerted the respondents as to the possibility of a disability and triggered the duty to inquire, the Tribunal observed that whether the duty arises turns on the “details of the information available to potential complainants and respondents” and that this information must be assessed in the context of the circumstances at the time.
Beginning with the First Incident, the Tribunal noted that the complainant had attended the Centre for years without exhibiting signs of mental disability, was well known to staff, and had frequently struck up conversations with persons of all ages. Further, the aquatic leader’s observation that the complainant had exhibited autistic tendencies was made in the context of his explanation to the on-call manager that the complainant was not threatening or inappropriate in a sexual manner. No duty to inquire arose in relation to the First Incident.
As for the Second Incident, the Tribunal stated that complainant’s e-mail was inappropriate and his subsequent attempts to justify his conduct undercut his argument that his conduct was induced by a disability causing momentary cognitive impairment. In the circumstances of such a stereotypical sexual objectification, Delta had a duty to address employee concerns. No duty to inquire arose in relation to the Second Incident.
In the result, the complaint was dismissed as having no reasonable prospect of success.
At the most basic level, the complaint in Hammell failed because, even assuming the complainant’s alleged disabilities could be proven, there was no evidence suggesting that his conduct was influenced by those disabilities, and therefore the alleged adverse treatment could not form the basis of a discrimination claim. In other words, there was no connection between the disabilities and the adverse treatment.
As for the duty to inquire, the decision emphasizes the highly contextual assessment of whether or not the duty arises. Hammell also confirms that in cases of alleged discrimination in the provision of services or facilities to the public, a complainant will have difficulty establishing discrimination where the service provider did not know, or could not reasonably have known, about the complainant’s disability. This lesson can be applied equally in the employment context.
By Laura DeVries
* This blog was written with the assistance of Connor Bildfell, Articling Student.
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