Canadian Employment Law Today - sample

Painting accommodation with broad strokes New Ontario Human Rights Commission policy emphasizes the need for employers to avoid a narrow approach to accommodating employee disabilities BY PAMELA CHAN EBEJER O n Sept. 29, 2016, the Ontario Hu- man Rights Commission (OHRC) launched its new policy entitled Policy on ableism and discrimin- ation based on disability. is OHRC policy is an update to the original policy on dis- ability that was released in 2001, which had focused on interpreting undue hardship and considering the concept that alternative work arrangements should be considered for people with disabilities. e new OHRC policy clarifies the law of accommodation by incorporating case law developments over the past fifteen years, detailing the rights and responsibilities of the parties involved in accommodation, expanding on a number of key concepts — including the duty to inquire — and providing best prac - tices to assist employers with meeting their accommodation obligation. e remarks of the Chief Commissioner and the release of the new policy could be interpreted as a bellwether of the prevailing mood. In our practice and reviewing human rights case law, we find that employers may still struggle with the idea of erecting more than an accommodative façade and doing the bare minimum to comply. An example of this façade is in the recent case, Hamilton-Wentworth District School Board v. Fair, where the Ontario Court of Appeal confirmed that the decisions by the province's human rights tribunal and the Divisional Court on the failure to accom - modate and remedy of reinstatement were reasonable. While the Fair saga is most of- ten cited as a cautionary tale for employers that reinstatement is a remedy that can be awarded by the tribunal, the recent pro- nouncements by the Court of Appeal affirm a number of established accommodation principles. Sharon Fair was on disability leave for three years prior to being terminated from her employment with the school board. Pri - or to her dismissal, she had been assessed as being capable of returning to work, but not in her pre-leave position. In response, the employer maintained that there was no suitable position available within her limi - tations and terminated her employment. e tribunal found in 2014 that the school board discriminated against Fair by failing to accommodate her disability, and the Di - visional Court upheld the tribunal's deci- sion in 2014. Upon further appeal, the Court of Ap- peal agreed with the Divisional Court that the school board "never had any real inten- tion to accommodate" based on the evi- dence considered and that the school board breached its duty to accommodate by failing to actively, promptly and diligently canvass possible solutions to Fair's need for accom - modation in an alternate position. First, the Court of Appeal found that the school board took an overly narrow approach to Fair's medical documentation that indicated she not be placed in a new position with the same personal liability as her pre-leave po - sition. From the school board's perspective, the medical documentation indicated Fair was restricted from performing any super- visory role as any such position carried the potential for personal liability. e tribunal noted that the medical documentation pro- vided by Fair required further clarification and Fair was willing to provide additional medical evidence. However, there was no evidence that the school board took any steps to clarify Fair's restrictions prior to determining that she could not be accom - modated. Second, the Court of Appeal agreed with the tribunal and Divisional Court that the school board failed to consider any alternate positions for accommodation, as there were two positions within the workplace that met Fair's restrictions. e Court of Appeal re - jected the school board's arguments that the tribunal created a new standard for accom- modation that required an employer to cre- ate a surplus position or displace an incum- bent employee in order to accommodate. On the contrary, the evidence before the tri- bunal indicated that Fair would be accom- modated in a position where the financial resources already existed and was vacant. e Ontario Court of Appeal confirmed that the tribunal's finding was simply in keeping with the principle that authorizing a transfer of position was part of the consid - eration of alternate suitable positions. Notably, the Court of Appeal stated that in fulfilling the duty to accommodate, an employer may be required to place a dis - abled employee into a vacant position for which he is qualified, but not necessarily the most qualified. In other words, accommo- dating an employee's medical restrictions may trump another employee's seniority rights. However, there are limits to this re- quirement as an employer would not be re- quired to place an employee in any position for which he is not qualified. Employers who choose to roll the dice and ignore the requirements to engage meaningfully in the accommodation pro - cess do so at their peril — the reality is these employers will likely face a much greater risk of legal action, human rights com- plaints, costly penalties and a range of other remedies to promote compliance with hu- man rights legislation. For example, in Fair, the Ontario Court of Appeal upheld the tri- bunal's award for 10 years of back pay and reinstatement of Fair despite having been away from the workplace for a decade. e goal of human rights legislation is to put the affected individual back in the position he would have been in had the discrimination not taken place and in certain circumstanc - es, reinstatement could be the appropriate remedy, even if there has been a lengthy passage of time. Fair reminds all employers that when re - ceiving accommodation requests, the em- ployer must act in good faith and meaning- fully consider all reasonable steps, including modifications to the employee's position or THESE DAYS, most employers are well aware of their duty to accommodate an employee with a disability under human rights legislation such as the Ontario Human Rights Code. However, disability remains one of the most cited grounds of discrimination in applications made under human rights legislation, and most often arises in the area of employment. Among other factors, this trend could also be a sign that some employers continue to struggle with meeting their human rights-related obligations when it comes to accommodating disability. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: ACCOMMODATION

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