Duty to accommodate disability case sent back to Human Rights Tribunal

September 16, 2011 Christina Catenacci Human Resources, Human Rights

The tribunal that decided the case of alleged discrimination against a part-time paramedic with multiple sclerosis who was shifted to a part-time ambulance driver position (at the paramedic’s pay rate) left some loose ends, according to the Supreme Court of British Columbia. The province’s Human Rights Tribunal was right to question whether the employee could be accommodated to continue working as a paramedic, or in a different position, however the Court indicated that the tribunal should have made other inquiries. As a result, the Court sent the case back to the tribunal to decide if the employer reasonably accommodated the employee, even though he was not able to perform important paramedic duties.

The case hinges on the employee’s ability (or inability) to “reliably palpate [i.e., measure] a pulse” with his fingers. His MS caused reduced sensation in his fingers, you see. The employer argued that palpating a pulse is a bona fide occupational requirement for paramedics. The employee disagreed.

According to the Court, the tribunal should have asked, even if palpating a pulse constitutes a bona fide occupational requirement (BFOR), did the employer reasonably accommodate the employee and should the employer have permitted the employee to work in some other position (existing or created) earlier than it did?

Further, the tribunal should have examined whether it would constitute undue hardship for the employer to employ the employee as a paramedic-scheduled driver (the employer argued this would have imposed undue hardship). Also, the tribunal erred in law when examining whether the employer treated the employee fairly with due respect for his dignity during the accommodation process.

Some background

Even though the employee had relied on his partner for a year to palpate pulses, when a new superintendent learned of the situation, he suspended the employee. The employee began working part-time as a driver, but was being paid at the rate of a paramedic. The problem was that he was not given any work; he was only allocated work after all of the other paramedics had been scheduled, namely three days in a year.

The Human Rights Tribunal found that the employee’s discrimination claim was justified in part. Even though the employer was able so show that the prima facie discrimination was justified because palpating a pulse constituted a BFOR, the employer was not able to show compliance with the procedural aspect of accommodating the employee. That is, by unnecessarily delaying accommodation into an alternative position, the employer failed to treat the employee with dignity and respect during the accommodation process. The employee was awarded damages for injury to dignity, feelings and self-respect, and for lost wages and mitigation-related expenses.

The employer appealed to the Supreme Court, which confirmed the following critical points in respect of the duty to accommodate an employee who suffers from a disability:

Although the employer showed that the ability to palpate pulses was a BFOR, an employer’s duty to accommodate does not stop with consideration of the employee’s existing job. Employers have to be flexible in applying their standards if such flexibility enables the employee to work and it causes no undue hardship. The goal of accommodation is to ensure that those who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.
The test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer tried to accommodate him or her, the employer could satisfy the test.
The tribunal erred in law when examining whether the employer treated the employee fairly with due respect for his dignity during the accommodation process. The question should have been whether the employer reasonably accommodated the employee and whether it ought to have permitted him to work in some other position (existing or created) earlier than it did.

Therefore, the Court reverted the matter to the tribunal so it could decide whether the employer reasonably accommodated the employee, whether it did so soon enough and whether either of the accommodations imposed undue hardship on the employer.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more

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