Procedural Duty to Accommodate Prohibits Assumptions

Written by Lewis Waring, Paralegal, Student at Law (last year), Editor at First Reference

In Turnbull v Edmonton Pipe Trades Educational Fund o/a Alberta Pipe Trade College (“Turnbull”), an employer discriminated against its employee in violation of the Alberta Human Rights Act when it dismissed her one day after learning of her high-risk pregnancy. By failing to investigate whether the employee’s condition could be accommodated, the employer failed to implement its procedural duty to accommodate and paid the employee $35,000 in damages to dignity and lost wages.

Background

The employer, an Alberta technical college, employed the employee for a period of two years until her dismissal in May 2013. Prior to her dismissal, the employee had become pregnant and thus had a human-rights need for accommodation under the ground of gender under the Alberta Human Rights Act. Furthermore, the employee suffered from a medical condition connected with her pregnancy that had rendered it high-risk. Instead of inquiring into the nature of her condition and needs, the employer dismissed the employee the day after learning of her pregnancy.

After discovering the high-risk nature of her pregnancy, the employee’s doctor had informed her of her need for accommodation at work in the form of a reduced workload, changed hours and a restriction on physical lifting. Following this appointment, the employee informed the employer’s assistant department head of her condition and required accommodation. In response, the assistant head recommended she take two months’ leave. Shortly thereafter, the employee met with the department head, explaining her pregnancy, associated medical condition and prescribed accommodations. After a brief discussion, the employee and department head agreed to carry on the discussion the next day. However, when the employee met with the employer’s department head the next day, she was informed that she had been dismissed.

The employer’s failure to accommodate the employee’s high-risk pregnancy

The employer’s discrimination against the employee was fairly clear. The notion that dismissing an employee one day after learning of their high-risk pregnancy violates their human rights is relatively uncontroversial. The employer’s justification for dismissing the employee was based on it making certain assumptions. The employer assumed that the employee’s need for assistance in performing certain tasks such as lifting blueprints meant it would need to provide an additional worker to carry materials for her. It also assumed that the employee expected full pay for reduced hours. The employer finally assumed that the employee had declined its suggestion of her taking a two-month leave. Furthermore, the employer failed to consider whether there were other alternatives that could meet the employee’s medical restrictions and, in fact, asked no questions about the extent of the employee’s medical restrictions.

In short, instead of taking any reasonable steps to learn about the employee’s condition, her willingness to accept a variety of solutions or creative ways her high-risk pregnancy could be accommodated, the employer assumed accommodating her was impossible and that it was therefore justified in terminating her. The moment the employer decided to assume that accommodation was impossible was the moment that it failed its duty to accommodate her. The employer may indeed have been correct about its assumptions and accommodating the employee’s high-risk pregnancy may have ultimately been impossible; however, Canadian human rights legislation requires employees to make reasonable efforts to understand whether an employee’s condition or characteristic can be accommodated. This duty to investigate and explore alternatives is what is known as the procedural duty to accommodate.

Distinguishing the substantive and procedural duty to accommodate

The duty to accommodate is a common culprit in employee claims at human rights tribunals and civil courts. It is important to understand that the duty to accommodate has two elements, one substantive and one procedural. While seemingly complicated, the two aspects of the duty to accommodate are relatively straightforward. Substantive accommodation refers to the actual provision of some type of accommodation. In other words, an employer provides substantive accommodation when it makes some alteration or modification to some aspect of the employee’s work experience, perhaps modifying the workplace or altering the employee’s schedule.

Taking substantive action to address a need for accommodation is not always required. An employer in some cases may find that the accommodation that would be required to permit an employee with a human rights concern to continue working under its employ would impose heavy costs or require laying off another employee. When accommodating an employee imposes such costs on an employer, it has reached what the legal system calls the “point of undue hardship.” Beyond the point of undue hardship, employers are not required to provide substantive accommodation for an employee’s human rights need. If providing substantive accommodation is beyond the point of undue hardship, an employer may be justified in dismissing the employee. While such a dismissal is by definition discriminatory, terminating an employee because accommodating their human rights needs is too costly or requires the dismissal of another employee is legal under Canadian human rights legislation.

The fact that an employer is not always required to provide substantive accommodation to an employee with a human rights need must be distinguished from the employer’s duty to take steps to determine whether such an employee can be accommodated without incurring undue hardship. Even if an employee’s human rights needs seem to require exorbitant effort or financial investment, an employer is never entitled to assume that providing accommodation is impossible. The duty to accommodate has a procedural aspect in the sense that an employer is required by law to undertake reasonable efforts to determine whether accommodation is possible.

Takeaway

An employer cannot fulfill the duty to accommodate by approaching each situation in a rigid fashion. Every request for accommodation is a request by an employee for their employer to collaborate with them to come up with sometimes creative solutions to problems posed by a human rights need. In some cases, accommodating a human rights need may be straightforward such as in the case of an employee undergoing a high-risk pregnancy. In such cases, accommodation may be a matter of permitting the employee to take time off work when necessary or restrict her performance of certain duties. Other cases may involve rare or especially debilitating disabilities that render an employee unable to perform any role within the company.

In both cases, the procedural duty to accommodate requires that an employer approach simple and complicated human rights needs with the same perspective of open-mindedness and collaborative problem-solving. Employers are expected to communicate openly with the employee and learn as much as possible about the nature of the employee’s situation and needs. Employers should avoid rigid thinking and should consider outside-of-the-box ways to preserve the employee’s relationship with the company.

Such efforts, in some cases, may result in the conclusion that accommodating an employee’s human rights need is impossible, unreasonably costly, or would involve the termination of another employee. In such cases, the employer will not be required to provide substantive accommodation and may be justified in termination. However, employers should keep in mind that terminating an employee with a human rights need that requires efforts of expenditures beyond the point of undue hardship is only legal under Canadian human rights law after the employer has fulfilled its procedural duty to accommodate the employee by considering whether there might be alternatives that would meet the employee’s needs.