Canadian Employment Law Today

December 11, 2013 CASE IN POINT: HUMAN RIGHTS Disability in the workplace: Perception matters Employers can be liable for discrimination for a perceived disability whether one exists or not BACKGROUND EMPLOYERS in all jurisdictions across Canada have a legal obligation to protect their employees from discrimination against various grounds under human rights legislation. Disability is one of those protected grounds. But discrimination is not limited to whether or not an employee actually has a disability. Courts have found that the act of discrimination is something that can happen regardless of the circumstances. An employer may think it's acting proactively when it takes action to deal with an employee it thinks has a disability, but if that employee doesn't actually have one, look out. Employment lawyer Ashley Brown discusses the difference between perception and reality when it comes to accommodation and discrimination. | BY ASHLEY BROWN | context of disability in the workplace. DISABILITY IS A prohibited ground of discrimination under human rights legislation across Canada. However, a lesser known fact is that differential treatment on the basis of a perceived disability — regardless whether the disability actually exists — may also land an employer in hot water. Human rights legislation in Ontario, Manitoba, Nova Scotia, Newfoundland and Labrador, the Northwest Territories and Nunavut explicitly provides that "perceived," "presumed," or "believed" disabilities are included among the prohibited grounds of discrimination. Even in jurisdictions without such explicit statutory language, human rights tribunals, arbitrators and courts have acknowledged that a failure to recognize perceived disability as a prohibited ground undermines the objectives and protections afforded by human rights legislation. As early as the mid-1980s, the Supreme Court of Canada recognized discriminatory treatment is not limited to the drawing of distinctions based on a person's actual characteristics, but also distinctions drawn on characteristics that are either knowingly or unwittingly attributed to an individual — which may be equally as reprehensible. That a perceived disability can provide the basis for a discrimination complaint is therefore not a new legal concept. Yet, understanding how one's perception of another can translate into legal liability can be a difficult concept to grasp. A handful of recent decisions from various jurisdictions across Canada illustrate why and how perception matters in the Perceived alcohol addiction: C.R. v. Canadian Mental Health Association 4 In this Manitoba decision, the employee had worked for the Canadian Mental Health Association (CMHA) for a number of years. At the time of her hire, she advised CMHA that she suffered from depression and was undergoing radiation treatment for cancer. Employer was aware of employee's periodic bouts of binge drinking, but never had negative feedback on the employee's performance. Over the course of her employment, CMHA also became aware of the employee's periodic bouts of excessive alcohol consumption or "binge drinking." However, there was no indication these issues affected her work performance. To the contrary, by all accounts the employee was well-liked by her peers, good at her job and had never been given negative feedback about her work or her conduct. Around the time the employee was scheduled to attend a CMHA national conference, she encountered a number of significant stressors, of which her employer was aware. Both of her daughters passed away, the basement of her apartment flooded, she was working 50-hour weeks and was on-call 24 hours a day. The day before she was set to travel to the conference, she phoned in sick. Although there was nothing to suggest she had been on a drinking binge, her employer suspected as much and proceeded to cancel her flight and travel arrangements for the conference. Thereafter, the employee went on a combination of sick leave and vacation for about two weeks. Upon her return, she was asked about a $500 float she had been given to pay for her conference expenses. She acknowledged having forgotten about the money and repaid it the same day. Nevertheless, the CMHA terminated her employment on the basis she had misappropriated funds. The Manitoba Human Rights Board of Adjudication ruled the employee had been treated adversely in her employment as a result of a perceived disability, namely the perception she was an alcoholic. This treatment, the board found, left the complainant feeling harassed, intimidated and, ultimately, out of a job. She was awarded damages of nearly $6,000 for lost wages and compensation for injury to her dignity. Perceived limitations due to obesity: Johnson v. D&B Traffic Control In this British Columbia decision, the employee was a flagger on construction sites. When he asked his employer why he had not been assigned to a new worksite, he was told it was because of "his disability." The employee was overweight at the time of his hire and continued to struggle with obesity. Yet his weight had not limited his ability to perform his assigned duties and responsibilities, nor had he provided his employer medical documentation to suggest he had a dis- Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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