Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2018 News | November 2018 | CSR Ignoring request for ergonomic furniture could be discrimination Disability discrimination complaint stemming from employee's request for ergonomic furniture has enough merit for a hearing: Tribunal BY JEFFREY R. SMITH THE BRITISH COLUMBIA Hu- man Rights Tribunal has rejected a union's application to dismiss a complaint of disability and sex discrimination from one of its employees based on its failure to provide ergonomic furniture for the employee. Linelle Mogado was an in- house counsel for Unite Here, Local 40, a small union repre- senting hospital workers in Van- couver that is affiliated with the Unite Here International Union. Hired in January 2015, Mogado was four feet, eleven inches tall and had a history of muscle tension in her neck. In order to avoid developing symptoms in her neck, she required special- ized equipment and a particular setup at her workstation. During her interview with the president of Unite Here, Moga- do told him she wanted to move to Vancouver from Ontario to support some of her activities, including rowing. According to the president, she didn't mention any special needs or required equipment. Once she started working for the union, Mogado told the pres- ident that the furniture in her office didn't fit her — the previ- ous occupant of the office was a large man — and she requested the union acquire ergonomically suitable furniture and equip- ment for her. The president said she would be able to purchase new furniture, so she described specialized equipment she had at her previous employer that had been recommended in an ergonomic assessment — for which she had received a medi- cal referral due to discomfort in her wrists, back, and neck. Mogado also requested priva- cy glass for her office, new laptop computers for herself and oth- ers, Internet upgrades, and new office furniture. Unite Here ac- quired some of these things, but the president claimed he wasn't aware any of Mogado's requests were related to any medical needs. In the spring of 2015, Mogado asked an administrator where the union purchased office fur- niture. The administrator pro- vided contact information for an office supply company and Mogado sent it a copy of the ergonomic assessment from her previous job — including recommendations for an ergo- nomic chair, keyboard tray, split keyboard, vertical mouse, moni- tor lever, footrest, and document holder. Employee persistent but unsuccessful in requests On June 4, Mogado emailed an agenda for an upcoming meet- ing to the president, including an item on seeking quotes for furni- ture. The president claimed this was the first time she indicated she wanted new furniture, but he didn't know there were any medical reasons for it. In fall 2015, Mogado gave the president a preliminary quote for new furniture. The presi- dent said it was too high and she should revise her request to halve the amount. Mogado emailed him several times over the next couple of months, but still didn't indicate she had a medical need or disability. In a late October email, Mogado mentioned the furniture request was "based in part on the recommendations in an ergonomic assessment" from her previous job. The president asked Mogado to split the order into two parts so the cost could be spread over time to reduce the impact. The order still wasn't placed, how- ever, and Mogado sent more emails through November and December. On Jan. 7, 2016, Mogado emailed an agenda for a meeting to the president that included an item for "furniture request… shoulder/neck/carpal tunnel is- sues." Almost two weeks later, Mogado went on medical leave until late January and provided a doctor's note that stated she was getting forearm tendonitis that was likely caused by a "poorly sized desktop." The note went on to request that Unite Here work with Mogado to accommodate her condition. According to the president, it was the first time he learned that Mogado's furniture request was related to a medical need. The day after Mogado went on medical leave, the president emailed her to ask if they could discuss what was going on and how she was doing. Mogado responded that she would only be able to discuss things after her doctor cleared her return to work. On Jan. 26, Mogado emailed another doctor's note to Unite Here and followed up three days later to say she would be able to return to work on Feb. 15. She also asked if the union could or- der the furniture she requested before she returned. The presi- dent replied that his preference was the two items that were the biggest priorities on her list — an ergonomic chair and a free- standing desk. Mogado felt frustrated be- cause she didn't think those two items alone would be enough. She didn't respond until mid- Employee mentioned > pg. 8 Credit: Shutterstock/Galyna Andrushko

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