Cherelle Jardine was a long service, regular full-time (RFT)
employee at Costco Wholesale Canada, with 40 hours scheduled per
week and full benefits. Regular part-time employees were scheduled
between 35 and 39 hours and received reduced benefits. Limited
part-time (LPT) employees were not guaranteed any hours and were
not eligible for any benefits, unless grandfathered in 2004.
Jardine went on medical leave in 2009, which manifested into a
disability. She was accepted for short term disability (STD) and
long term disability (LTD) benefits while attempting a graduated
return to work. The graduated return to work plateaued at 20 hours
per week due to Jardine's permanent disability. As a result,
Jardine was classified as LPT and not eligible for benefits. Costco
topped-up her wages during the graduated return to work and
extended her RFT benefits on a temporary basis.
Jardine requested that Costco accommodate her with RFT benefits
on a permanent basis despite her LPT status. When Costco declined,
Jardine brought a complaint to the B.C. Human Rights Tribunal
seeking guaranteed hours of work and RFT benefits.
Costco applied to dismiss the compliant under section 27(1)(c)
of the Human Rights Code, which required the Tribunal to
consider if there was "no reasonable prospect that the
complaint will succeed". The Tribunal first concluded that
Jardine's request for guaranteed employment was premature as
she had not been terminated and, in any event, such a right would
put her in a better position than her LPT co-workers.
Next, the Tribunal determined that there was a possible prima
facie nexus between the disability and the reduction of her
benefits. Consequently, it turned to assess Costco's bona fide
occupational requirement (BFOR) defence.
The Tribunal focused its analysis on the jurisprudence, which
says that a distinction between compensation-based benefits and
non-compensation based benefits is not prima facie discriminatory.
The Tribunal concluded that Costco was entitled to require certain
working thresholds in exchange for certain compensation/benefits.
Reduced to the most basic example: an employee who cannot work due
to his/her disability cannot expect to be paid wages by the
Considering undue hardship, the Tribunal accepted that
accommodating Jardine would either force the flood-gates to open
for other employees requesting similar accommodation, with an
exposure of $1.4 million, or cause Costco to deny those other
employees in a discriminatory and unconscionable manner.
In the result, the complaint was dismissed for having no
reasonable prospect of success.
Take-Away Points for Employers
While not expressly mentioned, the
"comparator group" approach implicit in the
Tribunal's finding was that Jardine should be treated the same
as all other employees working 20 hours per week. Stated
differently, a disabled employee is entitled to equal treatment to
an employee without a disability, not better treatment.
Characterizing benefits as being
compensation based (based on the work, hours being performed or
tangible contribution) is critical to attract the BFOR
justification. Conversely, benefits characterized as length of
service (e.g. accruing seniority) will typically not attract a BFOR
Costco was likely assisted by its
other accommodation efforts regarding Jardine's leave,
graduated return to work and temporary extension of benefits
(although the latter were likely not required under the duty to
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This introductory level seminar will provide those new to human resources with an overview of the duty to accommodate, particularly with respect to disabilities, including when the duty arises and what it requires of employers, employees, and unions. We will also outline when the duty to accommodate ends, what it means to reach undue hardship, and what kind of requests need not be accommodated by employers.
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