Wednesday, 5 November 2014

Employer's Knowledge of Disability Not Necessary to Establish Duty to Accommodate Disabled Employee - Or is it?

While the law tends to move incrementally, one decision at a time, slowly establishing "precedents" that later decisions will follow, the outcomes in some cases do not always appear to be consistent.  Not infrequently, a decision may appear to be an outlier, at least until one delves deeper to understand the basis on which the result differs from previous cases. 

In a post on this blog in August (here), I noted that an employer generally does not have an obligation to accommodate an employee until such time as the employee comes forward with a condition that requires accommodation.  In both Bish v. Elk Valley Coal Corporation and Huffman v. Mitchell Plastics, employers were not held responsible for failing to accommodate employees who failed to disclose their "disability". However, it should be noted that in both decisions, the underlying condition related to substance abuse.

In a recent decision of the Alberta Court of Appeal, however, the Court found that an employer's knowledge of the employee's disability was not an essential element of establishing whether there was prima facie discrimination.  In Telecommunications Workers Union v Telus Communications Inc., the employee was employed as a representative in a call centre operated by Telus.  He was a member of a bargaining unit represented by the TWU.  At the time of hiring, the employee had completed a Diversity Form, indicating "yes" to the question of whether he was a "person with a disability".  At no time, however, did Telus follow up with the employee to learn the nature of his condition or whether he required any form of accommodation. The employee was ultimately hired, but began displaying performance issues within the probationary period. On the evidence presented at grievance arbitration, it appears that the employee may have told his supervisors that the performance issues were related to his "condition", but it was not clear whether he expressly mentioned having Asperger's Syndrome.  The grievor was terminated, and the Union took his discharge to arbitration.

At labour arbitration, the Arbitrator determined that the employee did have a disability and that the issues with his performance which resulted in his termination were connected to that disability.  However, the Arbitrator also found that the employee had not provided sufficient information to the employer to trigger the duty to accommodate (or even to compel the employer to look further into his condition), and that the position in question could not be modified in a way that would permit the grievor to meet the requirements of the job.  The Union sought judicial review, but the Arbitrator's decision was upheld by a judge of the Court of Queen's Bench.
On appeal, the Union argued that the Arbitrator and the lower court had both misapplied the test for prima facie discrimination, and had failed to properly consider the test for establishing a bona fide occupational requirement.  The Court of Appeal reviewed the test for a finding of adverse effect discrimination, and found that the employer's knowledge was not a necessary element of that test.  Provided there was a negative consequence for the claimant from an apparently neutral rule, and the employee's disability contributed to that adverse outcome, the claimant has made out adverse effect (or indirect) discrimination.  In the case at bar, the employee's disability was a contributing factor in his inability to meet the employer's performance standards, which led to his discharge, so he had clearly made out a case. 
However, the Court then went on to consider the test for demonstrating a bona fide occupational requirement as set out in PublicService Employee Relations Commission v British Columbia Government and ServiceEmployees’ Union (often cited as “Meiorin”), and found that the employer could not have accommodated the employee in his current or any other position, given the effects of his disability.  Accordingly, although the Court disagreed with the Arbitrator's finding that there was no prima facie discrimination, the Court upheld the ultimate decision to dismiss the grievance.
The Alberta Court of Appeal's finding that an employer need not have actual knowledge of an employee's disability before being obligated to accommodate the employee initially appears to be supported by the decision of the Supreme Court of Canada in Moore v British Columbia (Education).  However, the Moore test for prima facie discrimination does not stand in isolation. One must still consider the test in Meiorin, and other earlier human rights decisions, such as Central Okanagan School District No. 23 v. Renaud.  In the latter case, the SCC commented on the duty on a complainant, whether in a case of direct or adverse effect discrimination.  At p. 994, the Court stated:
The search for accommodation is a multi-party inquiry.  Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation.  The inclusion of the complainant in the search for accommodation was recognized by this Court in O'Malley.  At page 555, McIntyre J. stated:
Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.
To facilitate the search for an accommodation, the complainant must do his or her part as well.  Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation.  Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
Clearly, unless an employee explicitly draws the employer's attention to the need for accommodation (or even the fact of disability), there cannot be an obligation on the employer to take steps to accommodate the employee.  The employer's knowledge, therefore, is an element of the analysis (albeit not at the stage of establishing prima facie discrimination).
The result in the Telus case does line up with the outcomes in Bish and Huffman, but how the Court got there may have created unnecessary confusion in the law.  By suggesting that an employer's knowledge is not a necessary element of the discrimination and accommodation analysis, the Court may lead employers and HR professionals to believe that they need to ferret out any and all potential disability claims before they surface as human rights complaints.  The law does not go that far.  Employees still have an individual responsibility to be frank about the need for accommodation and to participate in the process.  That has been the law for over 20 years, and the decision in Telus doesn't change that.
Do you have questions about human rights issues or the scope of the employer's duty to accommodate?  Contact Lance Ceaser for expert advice and guidance.


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