This Tribunal Decision Highlights a Commonly Overlooked Obligation
Ontario’s Human Rights Code (the “Code”) prohibits acts that discriminate against an employee based on various protected grounds. One of the most common Code complaints, as it relates to employment, is discrimination on the basis of disability.
If an employee has a disability as defined by the Code, which limits his or her ability to participate equally in the workplace, then the employer has a duty to accommodate the employee to the point of undue hardship. The duty to accommodate essentially requires an employer to provide support and solutions to eliminate barriers (whether physical, conceptual or attitudinal) so the employee can participate fully and equally. Though the employer’s duty to accommodate is generally understood, the employee’s reciprocal duty to request accommodation is often overlooked.
This reciprocal duty was examined in the recent Human Rights Tribunal decision of Kendjel v. Strategic Mapping Inc. The Applicant Kendjel started employment with the Respondent, Strategic Mapping Inc. in December 2009. Kendjel worked a significant number of overtime hours in her role of Executive Assistant to both the President and Vice-President. In November 2012, Kendjel suffered a fractured wrist while moving boxes at work. As a result of the injury, she was on a medical leave of absence for 8-weeks. Upon her return to work, Kendjel was required to wear a wrist brace and receive physiotherapy treatment for the injury.
After returning from the medical leave of absence, Kendjel stopped working overtime hours. In April 2014, Kendjel’s employment was terminated on a without cause basis. Kendjel argued that she was fired on the basis of disability because, following her wrist injury, she had ongoing wrist pain and could no longer work the overtime hours. Strategic Mapping argued that Kendjel had fully recovered from her wrist injury and even if she had not, there was no evidence of any disability that interfered with her ability to do her job and that she had not asked for accommodation.
The Tribunal agreed with Strategic Mapping and found that Kendjel had not established that her disability was a factor in the company’s decision to terminate her employment. Notably, the Tribunal found:
The applicant [Kendjel]…never asked for any accommodation related to any ongoing wrist condition. She was given assistance when heavy lifting was required but it seems that this assistance was also generally given before the injury. The applicant suggested that the fact that she was given assistance shows that it was understood that she had a continuing wrist problem. However, it is difficult to accept this since the applicant agrees that she never… asked for any change in her duties. It therefore appears to me that if the applicant had an ongoing disability, the respondent was not aware of it.
This case demonstrates that for an employer to meaningfully and substantively comply with the legal duty to accommodate an employee with a disability, the employer is entitled to a reasonable level of information (i.e. prognosis and not diagnosis information) from the employee to trigger the accommodation obligation. If the employee fails to provide this information, an inference may not be drawn that the employee requires accommodation and the employee may not be able to argue that the employer violated the Human Rights Code.
If you are interested in learning more about human rights laws and your workplace responsibilities check-out our webinar: Understanding Your Obligations under Human Rights Laws available on our YouTube channel here: https://youtu.be/650YIqSR94g