It is well established in human rights law that employers have a
'duty to accommodate' their employees. Put simply, this
duty requires that employers make efforts to accommodate certain
protected characteristics to the point of undue hardship. However,
courts and tribunals have expressed different views about the scope
of the duty to accommodate and in particular, whether that duty
includes separate procedural and substantive obligations.
In some cases, the duty to accommodate has been viewed as
encompassing two separate and distinct duties: one procedural, and
one substantive. The procedural duty requires an employer to take
steps to inquire into an employee's accommodation needs and
undertake an individualized investigation of potential
accommodation measures to address those needs. The substantive duty
relates to the actual accommodation implemented by the employer, or
in the alternative, the reasons why the employer determined such
accommodations could not be offered.
Based on this view, some courts and tribunals (most notably the
Ontario Human Rights Tribunal) have awarded damages for an
employer's failure to meet the procedural duty to accommodate,
even in cases where it was found that an employee could not be
accommodated without undue hardship.
Conversely, courts in British Columbia have taken a different
approach, considering the employer's procedural actions or lack
thereof as a tool to assess whether the employer has accommodated
the employee to the point of undue hardship. However, that approach
has been consistently followed, even within British Columbia.
The Federal Court of Appeal recently weighed in on this debate
in Canadian Human Rights Commission v Attorney General of Canada
and Bronwyn Cruden.1 That case involved a human rights
complaint brought by an employee of the Canadian International
Development Agency (CIDA). The employee, who suffered from type 1
diabetes, was denied a temporary posting in Afghanistan because she
failed to meet medical guidelines which precluded employees with
chronic medical conditions from being posted to that country.
The Canadian Human Rights Tribunal (the "Tribunal")
found that the medical guidelines were a bona fide occupational
requirement, and therefore accepted that CIDA could not accommodate
the employee without undue hardship. Nonetheless, the Tribunal went
on to uphold the employee's complaint on the basis that there
were procedural shortcomings in the employer's accommodation
process. CIDA appealed the Tribunal's decision.
The central issue on appeal was whether employees had a separate
procedural right to accommodation that could be independently
breached and could therefore attract remedies under the Canadian
Human Rights Act, even if the employer could not accommodate the
employee without undue hardship. The Federal Court set aside the
Tribunal's decision, concluding that once it is found that an
employee cannot be accommodated without undue hardship there is no
basis for a finding of discrimination.
The Tribunal sought judicial review from the Federal Court of
Appeal. At paragraph 19 of its decision, the Court of Appeal
confirmed that "there is no separate procedural duty to
accommodate under the [Canadian Human Rights Act] that could give
rise to remedies...". However, the Court of Appeal went on to
note that procedural steps taken by the employer will be useful in
assessing whether appropriate accommodation has been achieved. The
overriding consideration is whether the employee's disability
would impose an undue hardship upon the employer.
Based on the Cruden decision, it seems clear that in the federal
sector, a lack of procedure alone will not be sufficient to give
rise to a breach of the duty to accommodate or damages. It remains
to be seen whether the Federal Court of Appeal's approach will
be adopted in jurisdictions which had previously recognized the
existence of two separate duties. However, such a change would be a
welcome development for employers, as it would clarify that
liability can only arise where an employer has breached the duty to
accommodate and not simply where it has failed to take certain
procedural steps in the accommodation process.
1 Canadian Human Rights Commission v Attorney General of
Canada and Bronwyn Cruden, 2014 FCA 131.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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