Duty to Accommodate Undue Hardship
and Occupational Requirements
The purpose of this report will be to show how the courts have been responding to the needs of persons of disabilities through Duty to Accommodate Undue Hardship and Occupational requirements. Recently, Madame Justice McLachlin made a few comments into how accommodation should be handled: 'courts and tribunals should be very sensitive into how individual capabilities should be accommodated. A part from testing to determine whether or not the person has the aptitude or qualification necessary to perform the work, the possibility that there may different ways to perform the job while still accomplishing the employer's legitimate work related cases in appropriate cases'.
The courts have emphasized that if those negatively affected can be accommodated there should be an additional step of creating a non- discriminatory rule put in place. The courts began to take this approach in Recent cases that have determined whether or not human rights legislation has been consistent have been assessed by examining the process in witch accommodation has be met . In Conte vs. Rodgers Cable Systems a Canadian Human Rights Tribunal ruled that Rodgers had had not accommodated an employee with a voice disability because it failed to enter a program to determine whether or not accommodation was possible. The process should have been initiated by examining the employees medical condition , the prognosis and the employees ability to do different' work. The process for accommodation must be taken on equally by the employer and the employee.
One of the most important factors that must be considered when making a case for accommodation is the proof of the existence of a disability. This is further demonstrated In Ouimette vs. Lily Cups: the board of inquiry dismissed Darlene Ouimette's' claim for a disability as the reason why she was absent from work for three days. Under her work contract if specified that she must not be absent for more then three days that here job would be terminated. There was a requirement that the she been present each work day during the one month probationary period in order to get union membership. She testified that she was absent for three days because of the flu and asthma. The Board of Inquiry found that the flu was not a disability in accordance with the Human Rights Code.
The flu is a temporary illness experience from time to time, if this illness were included in the human rights code, it would become trivial in terms of the protection it could offer.. In Susan Davis Vs TLC Animal Shelter Ms Davis had been employed at the TLC Animal Shelter doing various labour jobs. She developed a condition in her eyes known as Macular Retinal Degeneration witch could cause colour blindness.' She had been fired in front of the Board of Directors. The reasoning behind' this decision had been because of her work performance, often sanitization and other cleaning duties were not performed satisfactorily.
As well there had been some instances where she had retaliated negatively' Ms Davis felt that she had been fired because of her age and her disability. There was no evidence to support her disability in fact it had never been discussed with her supervisors. It had been found that her job performance was not related to her disability. Ms Davis attitude was the main reason she was fired There have been times during employment in witch employees with a mental health disability have been treated differently then those with a physical disability.
In Gibbs Vs Battlefords and District Cooperatives , the Plaintiff Ms Gibbs was unable to continue her employment as she had developed a mental disorder, however, to receive replacement wage benefits under her insurance policy she would need to be a resident in a mental institution. As a result her benefits were terminated. The Cooperative argued that all persons with disabilities were treated equally.
The Cooperative also argued that the insurance plan should not be viewed as discriminatory but rather between the disabled generally and the able '"bodied. The court rejected this argument. To find discrimination on the basis of a disability it would be necessary to show that all persons are discriminated equally. Discrimination against a group of people with ' mental disabilities would be considered against the entire group.
Bonifide Occupational Requirements
Meiorin vs the Government of British Columbia The plaintiff, a female fire-fighter, had been dismissed on the basis that she had not met the physical breathing requirements for the job, the government tried to further claim that females' had a different breathing capacity then males. The courts found that the method in witch she was tested was discriminatory and they struck down the decision .The supreme court determined that the justification that the BC Government tried to use to terminate Mieorin was an infringement on ' human rights.
The Meiorin Case has left a significant system as to how BFOR is assessed. The court determined that the system used to determine BFOR needed to be changed, the Meirion case was the catalyst for these changes.
The following questions are now when determining whether or not employer standards are justifiable:
- Is a group being excluded because of impressionistic assumptions?
- where alternative standards considered?
- Why weren't the alternatives implemented?
- Is the standard the least discriminatory method of accomplishing the purpose?
- is it necessary that all employees meet this standard, or can it be variated?
- How was the standard designed to minimize the burden on those to comply?
- what efforts were made to accommodate the negative individuals?
- would the respondent face hardship it if adopted alternative standards or provided accommodation?
In the case of Entrop vs. Imperial Oil.
The Board of Inquiry discriminated against because of a handicap.
Mr Entrop had been in a safety position and under the new Alcohol and drug policy introduced in 1992 were required to report if they have or had previous substance abuse problems, Mr Entrop reported his alcohol use and was removed from his position and was assigned as a outside operator.
In order to get back to the position he once held Mr Entrop had to report to the to a psychological examination in witch he passed. Mr Entrop had - been told that would undergo unannounced alcohol testing.
The Board of Inquiry found that Alcoholism did not fit into the definition of a disability as covered by the human rights code. The board found the Imperial Oil's decision to remove Entrop because his history of alcoholism was thought to be a "perceived handicap" is discrimination . The evidence suggested that Imperial Oil did not have enough "proof that Mr Entrop's alcoholism" would affect his job performance.
Undue Hardship
The following quotes came from Regionale de Chambly Comm. Bergevin:
"These factors are not engraved in stone. They should be applied with common sense and flexibility in the context of the factual situation presented in each case. It may be a relatively easy matter to replace on employee with another. In a small operation a replacement may place an unacceptable burden on the employer. The financial consequences of accommodation will also very greatly. What may be eminently reasonable in prosperous times may impose a burden on employers in times of economic restraint or recession."
There have been situations where employers have tried to claim that termination was a business decision.
In Cottreau vs. Ellis Chevrolet Oldsmobile. The plaintiff in this case Joseph Cottreau had felt that is employment at a Chevrolet Oldsmobile dealership had been terminated because he had degenerative disc disease in his back. He had been taking various pain killers as a treatment for the disease. Cottreau had been taking disability benefits and had been told that his job would be waiting for him when he came back . Richard Ellis had later told him that his services were no longer needed as there had been a work shortage. Dr. Harding, Mr Cottreau's Physician had diagnosed him with degenerative joint disease. Richard Ellis had commented that if Cottreau was not on disability he would have been fired. In any case relating to this one, the complainant must prove that they have a disability with respect to the Nova Scotia Human Rights Code. The Board of Inquiry did not accept the reason to remove Cottreau was a business decision the following damages were awarded to Cottreau:1) $10,000.00 in damages 2) $8000.00 in special damages.
In the case of Hall vs. Seetharamdoo.' The Complainant Elaine Hall had been terminated from her receptionist position for Dr Patrick Seetharamdoo as a result of her physician ordering her to take time off. Dr Seetharmandoo had made the comment that he had a busy medical practice and could not keep daily communications with Hall, as a result gave her job to another receptionist. Dr. Seetharamdoo asked her to do some work from home, but Hall became reluctant to do this because of her employment insurance.
The Nova Scotia Human Rights Commission made the following comments:
"the duty to accommodate goes beyond investigating whether an employee can
perform an existing job but also involves investigating whether or not
something can be done. By failing to make any inquiries about a persons
disability the respondent had failed to show that the complainant's
disability reasonably precluded her from performing her work to the point of
undue hardship on the employer.
In Dwayne McClellan Vs. MacTara ltd. The Plaintiff Dwayne McClellan had been hired by MacTara Ltd as a wood room cleaner. During the course of his employment McClellan had been told to make sure his work was done before socializing with the other employees.
Mr McClellan started to develop a pain in his back which had started to develop. This pain later became a muscle pull. Mr McClellan's Physician Dr. Sheehy prescribed anti in-flammatory medication and recommended time off, McClellan later applied and received workman's compensation.
This later manifested into a Degenerative Disc Disease which could not' be compensated for.Dr Sheehy still maintained that McClellan had a "Rhomboid Strain", witch required treatment from a physiotherapist. As a result McClellan had been terminated based on his perceived disability.
There was a stage when layoffs were starting to happen at MacTara the Board of Inquiry had been convinced that when the layoffs had occurred he would still been working and that he should be compensated for his lost income as well as a letter of recommendation . As well he should be given $1000.00 in damages.
For a text these decisions please consult the following:
References
- Dwayne McClellan and MacTara Limited Case Number:04-00-0145 Nova Scotia Human Rights Commission. 2004.
- Elaine Hall (Complainant) Vs Dr Patrick Seetharamdoo and PAT-TERN ltd. Nova Scotia Human Rights Commission 2006.
- Conte Vs Rodger Cable Systems Ltd (1996) CHRT
- Imperial Oil Vs Entrop (1998) 30 CHRR D/433(Ont. Ct ( Gen Dev)
- Ouimette Vs Lily Cups Ltd (1990) 12 CHRR D/19(Ont. Bd. Inq.)
- Gibbs v. Battlefords Dist, Cooperative Ltd 1996 27 CHRR (SCC)
- Meirion (B.C.G.E.U.) Vs. British Columbia Public Relations Commission (1999) 35 CHRR d/257(SCC)
- Joseph Howard Cottreau (Complainant) R. Ellis Chevrolet Oldsmobile Ltd (Respondent) 2007 ( Nova Scotia Human Rights Commission)
- Susan Davis (Complainant) TLC Animal Shelter (Dorothy Andrews Preston Andrews) 2007
