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The duty to accommodate after Meiorin and Grismer

How far must an employer go to meet its duty to accommodate a disabled employee? When is the threshold of undue hardship reached? While there can be no blanket response to cover all factual circumstances, it is probably accurate to say that, if anything, employers must satisfy a higher standard than was the case when FOCUS first discussed this issue with its readers (see our three-part series beginning with "The accommodation of disabled employees - a guide to the legal landscape" on our Publications page). This is due to the effect of two decisions of the Supreme Court of Canada, British Columbia Public Service Employee Relations Commission v. British Columbia Government and Service Employees' Union (the B.C. Firefighters case, also referred to as the Meiorin case) (see ""Not reasonably necessary" aerobic fitness test held discriminatory in B.C. woman firefighter victory" on our Publications page) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), a 1999 decision often referred to as Grismer.

Readers will recall that the Meiorin case established a new, three-step approach to determining whether an employer has justified a prima facie discriminatory workplace rule or standard. Under this test, the standard will be upheld if the employer establishes that

• it adopted the standard for a purpose rationally connected to the performance of the job;
• the standard was adopted in an honest and good faith belief that it was necessary to attain this legitimate work-related purpose; and
• the standard is reasonably necessary to accomplish the purpose. To prove reasonable necessity, it must be shown that it is impossible to accommodate the claimant and others sharing his or her characteristics without imposing undue hardship on the employer.

In Grismer, which did not concern employment-related discrimination but, rather, the denial of a driver' license on the basis of visual disability, the Court affirmed that defendants in human rights cases have the burden of demonstrating that the standard adopted "incorporates every possible accommodation to the point of undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost".

This strong statement of the extent of the obligations to be shouldered by employers and other respondents (including unions) in human rights complaints likely means that these obligations could now entail restructuring the workplace and creating new positions if necessary. However, the outer limit of the duty to accommodate remains the point at which the employer (or union) incurs undue hardship.

THREE POSITIONS CLAIMED AVAILABLE

A recent Ontario arbitration decision that exemplifies the current state of the law on accommodating disability is Essex Police Services Board v. Essex Police Association (April 26, 2002). At issue in this case was the grievance of a police constable (the grievor) with 27 years of service who suffered from degenerative disk disease and chronic back pain and was incapable of performing front-line police work. After his claim for long-term disability benefits was refused by the employer's insurer, the grievor requested that he be returned to work on modified duties. The employer refused, taking the position that the grievor was incapable of performing essential police duties, and that no other work was available.

The grievor's union grieved the employer's decision, arguing that the employer ought to have considered three positions for the grievor, the first two of which were already occupied: Community Services Officer (CSO), Criminal Investigator (CI), and a non-existent position, to be comprised of office duties drawn from various sources.

GRIEVOR INCAPABLE OF PERFORMING CSO AND CI JOBS, BUT …

The arbitrator found as a fact that the grievor was capable of performing only sedentary and undemanding physical duties. With respect to the CSO and CI positions, the arbitrator found that the modifications necessary to accommodate the grievor's physical restrictions would have been so extensive as to transform the essential nature of the positions and would, as a result, have constituted undue hardship for the employer.

Significantly, however, the arbitrator went on to indicate that, had he found the grievor to be physically able to perform the essential duties of either of these positions, he would not have held that the fact that the positions were occupied constituted barriers to accommodating the grievor in those positions. Citing the impact of cases such as Meiorin and Grismer, the arbitrator pointed to three factors favouring displacement of the incumbents by the grievor, if this were the only way the grievor could have been accommodated:

• Under the grievor's collective agreement, the incumbents in the CSO and CI positions did not owe their incumbency to seniority or the operation of the collective agreement, but to the discretion of the Chief. The collective agreement contained no defined positions or posting provisions, and the Chief was free to assign constables to, and remove them from, these positions at his discretion.
• Both positions were created around the time the grievor was seeking to be accommodated.
• The evidence did not suggest that the incumbents, or anyone else, would be laid off if the grievor were placed in those positions.

THE "COBBLED-TOGETHER" POSITION

With respect to the non-existent position, the arbitrator noted that the issue was not so much the grievor's ability to perform the job but, rather, whether the employer was required under human rights law to create the new "light duties" position. The arbitrator held that it was, and again pointed for support to the fact that, under this collective agreement, there were no formal positions, and duties and personnel were substantially interchangeable. Beyond these considerations, however, was the fact that the law had evolved since the days when arbitrators commonly took the view that the duty to accommodate did not require the employer to create a new position.

Considering the evidence, the arbitrator held that there was sufficient investigative follow-up and other office work normally performed by front-line officers available to be performed by the grievor. He noted that each officer spent about 50% of his or her time performing office work, and that it "strained credibility" to contend that some of this work could not reasonably be re-assigned to the grievor. By contrast, the Chief's evidence on the feasibility of re-assigning some of these duties amounted to the assertion that apportioning the duties in this manner was not the ideal or preferred method.

Therefore, noting that the grievor was a highly experienced officer with 27 years of service who was clearly capable of performing all the work under discussion, and that the cost of his salary was within the employer's budget, the arbitrator directed the employer to return the grievor to full-time duty.

GO SLOW FROM THE COURTS?

Some courts have appeared to step back from an expansive view of the meaning of Meiorin and Grismer. In Ontario, a 2-1 majority of a panel of the Divisional Court upheld the refusal of a large employer to accommodate two workers whose religion required that they not work on Saturday. In Ontario Human Rights Commission v. Ford Motor Company and C.A.W., Local 707 (September 19, 2002), the employer refused the workers' request to be let off work on Friday nights on the grounds that Friday night absenteeism was already severe, that the cost of using workers on extra shifts was significant, and that there were safety and competitive concerns arising from the "churning" of workers among different positions in the plant. The union also declined to offer accommodation, stating that accommodating the workers' shift preferences would override the seniority system and harm employee morale.

These arguments were accepted by a Board of Inquiry under the Human Rights Code, and that decision was upheld by the Divisional Court. However, the dissenting judge, citing the obligation to accommodate individual differences to the point of undue hardship, as articulated in the Meiorin case, faulted the employer in the following terms:

"If an employer investigates no solutions and takes no steps, (and there was no evidence that Ford did either), I do not see how it can demonstrate that it will suffer undue hardship. Ford adopted no strategy to plan for the complainants' absences. None of options presented by the complainants were tried either alone or in combination. Ford never proposed other options that would have been acceptable to it."

The British Columbia Court of Appeal has also signalled a willingness to place limits on an employer's obligations to accommodate, this time in relation to carrying out an in-depth investigation of an employee's disability in certain circumstances. The case, Oak Bay Marina Ltd. v. B.C. Human Rights Commission (September 10, 2002), involved a seasonal fishing guide who suffered from bipolar affective disorder.

After having been employed for two summers by the employer, a fishing lodge, the employee was refused employment in the third year. The refusal came after the employee reported to the employer's manager that he had suffered a "breakdown", and was observed by another fishing guide to be acting as though he were "stoned" and displaying poor judgment on the water. However, the employer had also received a letter from the employee's psychiatrist stating that his condition had stabilized and that he was fit for work.

The B.C. Human Rights Tribunal held that the employer had made no attempt to accommodate the employee by attempting to contact the psychiatrist to discuss possible options for returning the employee to work. This ruling was quashed by the B.C. Superior Court, which held that the Tribunal had erred in failing to consider the information that the employer had in its possession when it received the psychiatrist's letter. That information included its knowledge of the employee's periods of hospitalization, reports of his conduct while out on the water and the manager's observation of his behaviour during a face-to-face meeting to discuss his employment.

The Court of Appeal held that Superior Court had not erred in finding that the Tribunal should have given more weight to the employer's direct experience of the employee's behaviour. The Court of Appeal went on to state that there is no authority to support the proposition that an employer who is already aware of the nature of an employee's disability must conduct a further investigation of that disability. The Court stated:

"What is "possible" for one employer - e.g., a government with entire departments and volumes of information available to it - may not be possible for a private company that has to make a decision amid operational pressures posed by scheduling, customer relations, profitability and legal liability... . Similar considerations bear on the other aspects of accommodation: whether the employer can in fact fit in a gradual return to work or place the employee elsewhere, or can actively supervise him or her or "monitor" his or her medications. These are more subtle and difficult questions that were overshadowed in this case by the [Tribunal's] assumption that direct experience could not be considered by [the employer] in making its decision."

In Our View

The questions of when creation of a position or the displacement of incumbents is appropriate is, as always, dependent on the specific facts at issue and subject to the test of undue hardship. This can be seen in the way the arbitrator in the Essex case viewed the issue of displacing the incumbents in the CSO and CI positions. With respect to "cobbled-together" duties forming a new position, one indication that undue hardship has been reached is when the new position being demanded by the grievor does not entail useful, productive work. This point has been made in FOCUS before, and was articulated by the arbitrator in the Essex decision in the following terms:

"In addressing this question, it cannot be overstated that the job must be a productive one. It would, in my opinion, be an undue hardship to require an employer to provide make-work. In our society, the burden of such disabilities is borne in other ways, typically through the provision of long-term disability plans. … [T]he tasks must be ones that the employer has itself identified as being required to be performed, not ones that it might wish to perform in an ideal world or that the union might hope that it would perform. In most workplaces it remains an employer prerogative to determine what work needs to be done."

For other articles related to the accommodation of disability, see "Discharging the duty to accommodate: Hospital case provides some pointers", "A question of comparison: Appeal Court rules on restrictions to benefits, seniority and service accumulation of disabled employees" and "Arbitrator rules against "perfect" accommodation for phobic technician" on our Publications page.)

For further information, please contact Lynn Harnden at (613) 563-7660, Extension 226.