A recent case from the Human Rights
Tribunal of Ontario provides guidance to employers on the extent of
the duty to accommodate. In Pourasadi v Bentley
Leathers Inc., the Applicant alleged that she was
discriminated against on the basis of disability after her
employment as a Store Manager was terminated. She argued that the
employer failed to provide reasonable accommodation to the point of
The Respondent was a retailer
selling a variety of items, including purses, wallets, backpacks
and luggage. The Store Manager position was predominately a
sales/customer service job, with some duties related to
merchandizing, displays, housekeeping, training and
In 2008, the Applicant injured her
wrist while unpacking a box. Her injuries rendered her unable to
perform all the essential duties of her position, including serving
customers. There were periods in the morning when the Store
Manager would work alone. The Respondent accommodated the Applicant
for a period of time by having another staff member work with the
Applicant when she would otherwise be working alone. That
additional employee was tasked with the job duties the Application
was unable to perform. The Respondent later determined that it was
no longer in the position to provide the additional employee.
The Applicant argued the Respondent
should accommodate her by allowing her to work alone and turn
customers away if the customer wished to see or purchase items that
would require the Applicant to go outside her physical
The Tribunal held that the duty to
accommodate does not require the employer to provide such an
accommodation. Although the duty to accommodate may require the
employer to arrange the workplace in a way that enables an employee
to perform the essential duties of the position, it does not
require the employer to permanently change the essential duties of
the position or permanently assign those duties to positions of
In this case, the Tribunal found
that the accommodation requested would exempt the employee from
meeting the essential duties of the position. It is important for
employers note, however, that a key aspect of this decision was the
determination of what is an essential duty of the position. The
Tribunal will often require evidence of what is or is not an
essential duty. As a result, employers should ensure that they have
carefully considered the job duties and which duties are essential
to the position when engaged in the accommodation process.
At the 2015 Ontario employment law
conference, employment lawyer Allison Taylor will
provide you with an in depth look at the latest legal developments
pertaining to the duty to accommodate. The session includes
The latest on accommodating mental
The risk of failing to accommodate
Obligations v choices in family
This blog was originally posted on First Reference Talks.
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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This past year has been marked with significant changes to employment legislation, and watershed decisions that will affect employers for years to come. We've designed this year's conference to deliver a practical and digestible review of what you need to know to manage your employees effectively.
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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