The Ontario Human Rights Code protects employees from discrimination in employment on the basis of disability and requires that employers accommodate employees to the point of undue hardship.
Last year the Human Rights Tribunal of Ontario had the opportunity to consider a case of alleged discrimination in employment on the basis of disability and failure to accommodate in Skedden v. ArcelorMittal Dofasco, 2019 HRTO 627.
The applicant, Mr. Skedden, was an employee who went on sick leave to undergo hip replacement surgery. Once cleared by his doctor, the applicant inquired about a return to work schedule from his employer. The employee went back to work but his employer unilaterally decided that he was a health and safety risk due to the fact that the he walked with a limp. The employer advised the applicant that no modified work was available in his department, and, after an alleged search of other departments, that no position was available for him to return to at all.
The applicant filed an Application with the Human Rights Tribunal alleging discrimination in employment on the basis of disability. The applicant argued that, with appropriate accommodation, he was able to perform the essential duties of his previous position. The employer, as respondent to the Application, cited undue hardship in preventing the accommodation of the applicant.
The Ontario Human Rights Code provides every person with a right to equal treatment in employment without discrimination because of disability, among other protected grounds. An applicant has to establish a “prima facie” case, which means that (1) the applicant has a protected ground under the Code, (2) has suffered disadvantage, and (3) the protected ground was a factor in the disadvantage suffered. If an applicant successfully establishes a prima facie case then a finding of discrimination can be made subject to the respondent establishing a non-discriminatory explanation or legal defence under the Code.
In cases of disability accommodation, section 17 of the Code creates a right to accommodation for employees and provides a potential defence to employers. An employee has a right to accommodation in the workplace if they can perform the essential duties of their job. However, an employer must only accommodate up to the point of undue hardship considering the cost, outside sources of funding, and health and safety requirements of the workplace.
Accommodation: Procedural and Substantive
Disability accommodation has both procedural and substantive components. The parties – employer and employee – are required to work together to fashion an accommodation plan specific to the employee’s medical restrictions, limitations and needs. Creating this accommodation plan addresses the procedural component. Thereafter, the parties are required to implement the plan and make any adjustments along the way as necessary, which satisfies the substantive component.
For more information on the duty to accommodate, we recommend the Policy on ableism and discrimination based on disability (2016) prepared by the Ontario Human Rights Commission.
The Case: Skedden
The applicant worked as a maintenance technician at the respondent’s steel mill. This was a position where essential duties required physical labour. After taking a leave for hip surgery, the applicant began to provide the respondent with medical letters requesting a graduated return to work. The applicant’s doctor strongly supported the applicant’s return to work, and even expressed that not returning to work would be detrimental to the applicant’s health. None of the medical letters provided by the applicant to his employer stated that he was not able to perform the essential duties of his job if provided some minor accommodations. The accommodations requested largely focused on a requirement that the applicant not be scheduled for on-call work for the immediate future.
Despite the doctor’s clear medical letters stating that the applicant was cleared to return to work subject to the accommodation, the employer eventually refused the applicant’s return to work. The employer argued that the applicant, who walked with a limp, posed a health and safety threat and could not therefore be accommodated. The employer suggested that the physical components of the job were not suited to an employee who walked with a visible limp.
The Human Rights Tribunal rejected the employer’s response, finding the company to have breached both the procedural and substantive requirements of the duty to accommodate under the Code. The employer relied on the applicant’s physical appearance rather than the medical documentation. Further, had the employer discussed the matter with the employee or the doctor, the employer would have learned that working was beneficial to the applicant’s health.
The Tribunal found that the applicant was discriminated against and that the employer failed to accommodate him. The Tribunal awarded the applicant $16,156.25 for lost wages when he was prevented from returning to work, and $15,000 in general damages to compensate for injury to dignity, feelings and self-worth.
Though not requested as a remedy by the applicant, the Tribunal further ordered public interest remedies including that the employer review and revise its workplace policies specifically regarding disability accommodation and return to work to ensure compliance with the Code, and to implement regular training for management on disability and accommodation.
This case reiterates that an employer, when confronted with a request for accommodation that is medically supported, has an obligation to address the request in good faith and take appropriate steps to implement it. A cursory refusal is a breach of the Code. However, undue hardship may be triggered in certain circumstances.
Whether employee or employer, we invite you to contact one of our experienced human rights lawyers to learn about your rights and responsibilities when it comes to discrimination and the duty to accommodate in the workplace.