Interesting Take on the Duty to Accommodate

by & Christina Catenacci

An employer can do nothing and still meet its duty to accommodate, so long as it turns out that the employer could not have accommodated the complainant without undue hardship. This was the decision of the Federal Court of Appeal in the recent case, Canada (Human Rights Commission) v. Canada (Attorney General). Despite finding that an employee made out a prima facie case of discrimination on the ground of disability, the Court found that the employer’s failure to meet its procedural duty to accommodate was not improper since any accommodation would have resulted in undue hardship. The Court reasoned that a standard must be assessed as a matter of substance and not procedure.

Facts of the case and decision

The Canadian International Development Agency (CIDA) employee suffers from type 1 diabetes and is insulin-dependent. She wanted to be a development officer, but she lacked necessary field experience. In order to gain necessary experience, she applied for postings in Afghanistan. In 2007, she completed her first posting in Afghanistan without incident. During her second Afghanistan assignment, in 2008, the employee suffered from a hypoglycemic incident which resulted in the agency curtailing her assignment and, against her wishes, returning her to Canada.

Prior to 2008, agency employees posted temporarily to Afghanistan were not required to have any medical assessment completed prior to being posted. Things changed after the employee’s second field assignment, however: now the agency mandates medical assessments for all workers as a condition of being posted to Afghanistan on temporary assignments. For this purpose, Health Canada also developed the Medical Evaluation Guidelines for Posting, Temporary Duty or Travel to Afghanistan.

The employee applied for other postings in Afghanistan, but she was unable to convince the agency that the new Afghanistan guidelines did not apply to her and she was not offered any other assignments there.

The employee subsequently launched a human rights claim against CIDA and Health Canada alleging discrimination based on the ground of disability contrary to the Canadian Human Rights Act. At the Canadian Human Rights Tribunal, it was found that the employee had established a prima facie case of discrimination against Health Canada because the Afghanistan guidelines provided that no one with a chronic medical condition is allowed to be posted to Afghanistan. Health Canada could not show that the conduct was not discriminatory.

Furthermore, the tribunal found that the employee established a prima facie case of discrimination against CIDA. It was clear that the employee was a competent employee, and if not for disability and the application of the Afghanistan guidelines, she would have been able to be posted in Afghanistan like the rest of her team. Moreover, the tribunal found that the employer did not meet its procedural duty to accommodate the employee to the point of undue hardship. Thus, there was no justification for the discrimination.

That said, in a surprising turn of events, the tribunal also stated that in order to determine some of the remedies sought by the employee, it needed to examine whether accommodation would cause the employer undue hardship. Ultimately, the tribunal found that it would constitute an undue hardship on the employer to have to accommodate the employee in Afghanistan.

Interestingly, the tribunal did not award any damages that would have been directly linked to a posting in Afghanistan. But it awarded certain other monetary amounts and other systemic remedies.

At the initial appeal before the Federal Court, the parties accepted that posting the employee to Afghanistan would impose undue hardship on the agency. However, the employee asserted that the tribunal’s decision should stand—undue hardship or not—because employers have both a procedural duty and a substantive duty to accommodate, and the agency failed to meet its procedural duty. The court disagreed and found that once a finding of undue hardship was made, the complaint should have been dismissed as the conduct was not discriminatory.

At the Federal Court of Appeal, the Court commented that there was no dispute that if the employee did not suffer from type 1 diabetes, or if the Afghanistan guidelines had not been applied, she would have been posted in Afghanistan again. However, the Court found that there is no separate procedural duty to accommodate under the Act that can give rise to remedies where the employer can show undue hardship, and more specifically where the employer can meet the bona fide occupational requirement test set out in Meiorin (British Columbia (Public Service Employee Relations Commission) v. BCGSEU , [1999] 3 S.C.R. 3):

  1. That the employer adopted the standard for a purpose rationally connected to the performance of the job;
  2. That the employer adopted the standard in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose; and
  3. That the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

When Meiorin was decided, the Supreme Court of Canada was not intending to create a separate procedural right to accommodate. The Federal Appeal Court stated:

“There is simply one question for the purposes of the third step of the test: has the employer ‘demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer’? Once the employer has established this, then it has satisfied the requirements of the third step…it is a bona fide occupational requirement and it is not a discriminatory practice”

Therefore, the appeal was dismissed.

What can we take from this case?

This case presents some serious issues when it comes to our understanding of the duty to accommodate. For years, it has been generally accepted that there are both a substantial and a procedural duty to accommodate an employee to the point of undue hardship, and if an employer breaches the procedural duty to accommodate, the human rights legislation has been breached.

This case appears to change that understanding; especially the court’s claim that:

“While there are other decisions of human rights tribunals that have found that remedies could be granted for a failure to satisfy a procedural duty to accommodate even though the accommodation of the particular person would impose an undue hardship on the employer, such decisions cannot lead to a conclusion that such interpretation is reasonable or correct if that interpretation cannot be supported by the applicable legislation.”

It may seem puzzling that a court can find an employer has breached its duty to accommodate but that the defence of undue hardship nonetheless applies, when the question was whether the employer accommodated the employee to the point of undue hardship.

This is a case that may find its way to the Supreme Court for further clarification, as it could influence how human rights cases are decided. The court will have to reconcile this confusing matter made at the end of the decision:

“…there may be another situation where the application of the Afghanistan Guidelines could result in a particular employee being denied a posting in Afghanistan even though the needs of such person could be accommodated without imposing an undue hardship on the employer. However, this is not the case in this matter and the Tribunal did not identify any such particular situation. The Federal Court Judge also noted that Health Canada was planning to revise the Afghanistan Guidelines…”

Should there be an appeal, we will keep you posted.

Comments

  1. It’s important to note that despite the lower federal court’s ruling and a BC court ruling also ignoring the procedural aspect of the duty to accommodate, adjudicators in Ontario have not followed suit. A violation of the procedural aspect of the duty to accommodate in Ontario will still be a human rights violation.

  2. Interesting read. So then, what do Afghanistani’s do for work if they too have diabetes?

  3. Too few details shared but some questions which arise:
    1.Were the Afghanistan Guidelines developed in direct response to this particular employee’s previous hypoglycemic incident or had there been other health or accommodation incidents involving other employees which had not been addressed? If not, then it would seem as if CIDA/Health Canada developed a policy which while wider reaching, specifically prevented this employee from taking up further assignments.
    2. How many other employees have been denied Afghanistan assignments since the guidelines were adopted.
    3. What is considered undue hardship in this scenario? The cost of a medivac (if needed) flight, the inconvenience of a team member exiting the country – neither seems like undue hardship to an agency the size of CIDA.