Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: HUMAN RIGHTS Train management team on human rights Continued from page 4 ability requiring accommodation. The B.C. Human Rights Tribunal ruled that although the complainant did not have a disability, his employer perceived that he did and, as a result, subjected him to differential treatment on this basis. As in the Manitoba decision, the tribunal awarded the employee $2,000 in damages for injury to dignity, feelings and self-respect. Perceived risk of liability: Judd v. Stangl's Enviro Lawn Care Unlike the Manitoba and B.C. decisions, in this Ontario decision the employee did in fact have a number of diagnosed disabilities. Yet it was the employer's unsupported concern for the potential risk of liability resulting from those disabilities that ultimately got it into trouble. The employee was born with several congenital disabilities. He had six fingers, one short leg and one short arm, he was missing an ACL joint and had a malformed ankle. Despite these disabilities, he worked for the employer as a member of its landscaping crew for about one month, fulfilling his assigned duties and responsibilities ably and safely. One day his immediate supervisor approached him and asked: "With the way you are, can you do the job?" The employee assured his supervisor he could do the job and, in fact, there was no evidence to suggest otherwise. Nevertheless, his employment was terminated the following day. The Human Rights Tribunal of Ontario found the termination was motivated by the employer's admitted — though unsubstantiated — concern that the employee's continued employment could result in a workplace injury and associated worker's compensation claims. The employee was awarded $14,000 in lost wages and as compensation for injury to his dignity. Practical tips That a perceived disability can provide the basis for a human rights discrimination complaint can present challenges for employers. On the one hand, most employers appreciate the range of relevant human rights issues and want to do right by their employees, while at the same time manage a productive and profitable operation. On the other hand, where an employee appears to have a disability but has not sought accommodation in the workplace, an employer can find itself in a difficult situation. To minimize the risk of liability associated with discrimination on the basis of perceived disability, consider the following tips: Assuming an employee is limited or restricted by his personal characteristics and treating him differently on the basis of such assumption is a recipe for a human rights complaint. Do not assume: If an employee's work is being done satisfactorily, and there is no other reason to believe he requires accommodation, there is generally no basis to inquire further. Presupposing an employee is limited or restricted by his personal characteristics and treating him differently on the basis of such assumption — however well-intentioned — is a recipe for a human rights complaint. Do not act unilaterally: In any accommodation process, the employee has a positive responsibility to participate. Unilaterally imposing accommodation or modified work conditions without involving the employee in the process should therefore be avoided. Make inquiries where appropriate: In most cases, it is the employee's duty to request accommodation where he needs it. That said, where legitimate and objectively-based concerns exist with respect to an employee's ability to safely fulfill his job duties, the employer may have a separate and distinct legal obligation to inquire as to whether the employee has a disability and, if so, if he requires accommodation. These are often sensitive discussions and, in most cases, it is advisable to seek legal advice before acting. Training: The fact that perception matters in the overall landscape of human rights is one that is often overlooked. Your management team should receive human rights training, including how to accommodate persons with disabilities, and how to avoid issues associated with discriminatory perceptions, views and opinions. About the Author Ashley Brown Ashley Brown is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. She can be reached at (416) 603-0700 (main), (416) 420-0738 (24 hour) or visit www.sherrardkuzz.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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