By now we all know that an employer in Ontario has a duty to
accommodate an employee with a disability, so long as the
accommodation does not cause the employer to face undue
hardship. The difficult question for employers is just what
constitutes undue hardship?
The Applicant was the Store Manager at the Respondent's shop
where merchandise including purses, backpacks, briefcases and
luggage of various sizes were sold. The Applicant often worked
alone and approximately two-thirds of her position's duties
involved assisting customers with the merchandise.
That Applicant had been employed with the Respondent for three
years when she injured her right wrist while unpacking a box. The
injury rendered the Applicant permanently incapable of performing
some of the essential duties of her position.
Initially, the Respondent accommodated the Applicant by
scheduling a second employee during times when she would normally
work alone to perform duties that the Applicant was physically
incapable of performing.
Sometime later, the Respondent determined that it was no longer
in a position to provide the accommodation of scheduling an
additional employee for 25 hours per week. With no other
accommodation options available, the Applicant was terminated. In
response, the Applicant brought a Human Rights Application alleging
that the Respondent failed to accommodate her and that her
termination was discriminatory on the basis of her disability.
The Applicant initially argued the Respondent should have
continued to schedule a second employee in order to accommodate
her, but conceded at the outset of the preliminary hearing that the
Code does not require the Respondent to do so. Instead, the
Applicant focused her argument on whether the Respondent should
have accommodated 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
restrictions. The customers would be required to return to the
store at a time when other staff would be able to assist the
customer. According to the Applicant, the circumstances where she
would be unable to help a customer would be infrequent or
"extremely rare" and that any hardship to the Respondent
would be minimal.
The Tribunal disagreed with the Applicant, finding instead that
denying service to customers created a change to her essential
sales-related duties and constituted undue hardship to the
Respondent. In dismissing this portion of the Application, the
Tribunal held the following:
28 As the Tribunal has
held in many cases, the duty to accommodate may require arranging
an employee's workplace in a way that enables the employee to
perform the essential duties of his or her work. However, it does
not require permanently changing the essential duties of a
"accommodations" sought by the applicant would not enable
her to meet the essential duties of the Store Manager position.
Instead, the accommodations sought by the applicant would exempt
her from meeting the essential duties of the position. ...the duty
to accommodate does not require exempting an employee from the
essential duties of her position. For this reason, in my view, the
Code's duty to accommodate does not require the respondent to
permit the applicant to tell customers to go away and come back
later when another person could assist them with their
Employers should note that the Tribunal's ruling was based
on its finding that the Applicant's sales duties were essential
to her position. When faced with an accommodation-related
challenge, employers should carefully consider what the essential
duties of an employee's position are before undertaking to
accommodate the employee.
The lawyers at CCPartners have experience with all aspects of
workplace accommodation. Click
here for a list of lawyers from the CCPartners team that can
assist you with all your Human Rights issues, including those
related to accommodation.
The Tribunal has scheduled a case management conference with the
parties to determine the next steps in this case. CCPartners will
keep you posted as this case progresses.
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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