Recently, in an interim decision, the Human Rights Tribunal of
Ontario (HRTO) held that an employer's duty to accommodate does
not require an employer to permit its store manager to tell
customers to go away and come back later when another person could
assist them with their purchases.
In Robabeh Pourasadi v. Bentley Leathers
Inc. (2015 HRTO 138), the applicant, Robabeh
Pourasadi, alleged that the respondent, Bentley Leathers Inc.
(Bentley), discriminated against her because of a disability
contrary to the Human Rights Code (the
Code) when it terminated her employment. Ms. Pourasadi was a store
manager. During her employment she developed a work-related injury
and claimed that Bentley failed to provide reasonable
accommodations for her disability to the point of undue hardship.
Notably, under the Code, the duty to accommodate does not require
exempting employees from performing the essential duties of their
In Ms. Pourasadi's role as a store manager, she was expected
to work alone for approximately twenty (20) hours per week. Ms.
Pourasadi conceded that the Code did not require Bentley to
schedule a second employee during her time alone in the store.
However, at issue was whether the Code required Bentley to
(i) permit her to ask customers to come back later and (ii) require
Bentley to allow her to defer certain tasks to other employees. Ms.
Pourasadi's position was that the frequency with which she
would be unable to help a customer would be extremely rare and the
hardship to Bentley would be minimal.
Bentley's position was simple: essential duties of its store
managers are to assist every customer that comes into the store and
make sales. In Bentley's view, "it is antithetical to the
raison d'être of a retailer to require them to
allow its employees to turn away customers and sales.
The HRTO agreed with Bentley. In particular, the tribunal held
that it is an essential duty to assist customers all the time, not
most of the time. In other words, if a duty is essential, it is a
duty that is required to be performed whenever there is a need to
perform it. For Ms. Pourasadi, this means she could not ask
customers who wished to see or purchase items that required her to
go outside her physical restrictions to come back later when staff
Cases that involve a duty to accommodate are always fact
specific. Generally, these cases turn on the particular nature of
the work, the nature of the employee's limitations, and the
nature of the work environment. This particular case demonstrates
that accommodation cases can also turn on the identification of
essential duties or requirements of an employee's work or
position. In cases where the employee's "essential
duties" are at issue, evidence to determine whether a duty is
or is not essential will be required. Therefore, it is important
that employers draft their job descriptions carefully and to
include as much detail as possible as the description can
essentially make or break the employer in a dispute.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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