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Workplace accommodation has limits

dutytoaccommodateIn Pourasadi v Bentley Leathers Inc., the Human Rights Tribunal found that accommodating a store manager by permitting the employee not to assist customers was not required, since assisting customers was an essential duty of her position.

Many are familiar with the concept of an employer’s duty to accommodate disabled employees under Ontario’s Human Rights Code (“Code”), but the grey area of accommodation in the workplace is about how much an employer is expected to accommodate. You might guess that the answer is to the “point of undue hardship” — and you would be right — but even this phrase can be confusing. If you work as a server at a restaurant, is the employer expected to accommodate you so you do not have to serve patrons? The Human Rights Tribunal (“Tribunal”) considered a similar scenario in its decision in Pourasadi v Bentley Leathers Inc.

The Respondent-Employer (“Employer”) sells a variety of merchandise including purses, backpacks, totes, luggage and briefcases. The Applicant-Employee (“Employee”) began working for the Respondent in 2005 and became a store manager in 2006, working at the employer’s Promenade Mall location. In 2008, the Employee injured her right wrist while unpacking a box and was compensated for these injuries through a WSIB claim.  The Employee continued to work full time from August 2008 until November 2009, subject to her restrictions, and was provided with modified duties from November 2008 onwards. The Employee underwent right wrist surgery in November 2009 but her condition did not improve. She returned to work at the Promenade Mall store in April 2010 with various physical restrictions. A WSIB Functional Abilities Evaluation in July 2012 concluded that the store manager job was not suitable for the Employee because the position included tasks that she was restricted from performing and no further accommodations or modifications could be implemented.

The Employer later dismissed the Employee after it learned the Employee had been turning customers away while she worked alone because of her physical limitations. The Employee filed an application under the Code alleging discrimination on the basis of disability. The Employee argued that the Code required the Employer to schedule another employee to work with her, who could perform all tasks outside her abilities, or alternatively, that she should be allowed to turn away customers or ask them to come back when another employee was present. Her position was that aside from these limitations, her other work was still valuable to the Employer. Both parties conceded that roughly 65–70% of the Employee’s position involved sales and customer service, but disagreed about how often the Employee would turn away customers because of her disability. Further, the Employer argued that it was not required to provide an accommodation which would not require the employee to complete the essential functions of her job (see e.g. Yeats v Commissionaires Great Lakes and Perron v Revera Long Term Care Inc).

Before rendering its decision, the Tribunal referenced some key provisions of the Code regarding accommodation:

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

So the question then becomes, what constitutes undue hardship? As seen in the Supreme Court of Canada’s decision of Hydro‑Québec v. Syndicat des employé‑e‑s de techniques professionnelles et de bureau d’Hydro‑Québec, section locale 2000, “[t]he test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.” The Tribunal added, however, section 17 does not require permanently changing the essential duties of a position or permanently assigning the essential duties of a position to other employees.

The duty to accommodate also does not require exempting employees from performing the essential duties of their position. The “accommodations” sought by the Employee would not enable her to meet the essential duties of her position, but instead pass them onto another employee. In light of these considerations, the Tribunal concluded the Employee had not discriminated against the Employee.

The concept of accommodation in the workplace is a frequent discussion topic on our blog (see our past blog posts about religious accommodation, mental illness, childcare obligations and family status). What is interesting about this concept is that every situation is different because reasonable accommodation is very fact–dependent. In this case, the Employee had already undergone surgery and other means of recovery without success. It was evident from her support through WSIB that she would be unable to perform her job’s physical activities for an indefinite period. In fact, WSIB had commenced a re-training program for her shortly before her termination. Employers are held to a high standard when it comes to reasonable accommodation because of the importance of preventing discrimination in the workplace. But tribunals and courts are also aware of an employer’s limitations and employers cannot be expected to provide an infinite amount of accommodation, especially when the disability is permanent. This case shows that the length of accommodation and how core aspects of a job are defined will be large indicators for determining whether an employer has met their duty under the Code.

As an aside, it is interesting to note that had the Employee in this case been unionized, this may have turned out differently, as collective agreements can be drafted to impose stricter accommodation policies on employees (see e.g. County of Brant v OPSEU).

By: Marty Rabinovitch and Alycia Kacala, Summer Law Student

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Devry Smith Frank LLP

Employment and labour lawyers at Devry Smith Frank LLP
Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .
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