It is now well established that the duty to accommodate has both a procedural component (the process) and a substantive component (the accommodation provided). The Ontario Human Rights Commission describes the two components as follows:
The procedural duty involves the considerations, assessments and steps taken to respond to an accommodation need. The courts have said that, "a failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the 'procedural' duty to accommodate."
The substantive duty is about the appropriateness or reasonableness of the chosen accommodation as well as the reasons for not providing an accommodation, including proof of undue hardship.1
Both components are important, as underscored in a recent decision from the Human Right Tribunal of Ontario (the "Tribunal") in Giang v. DBG Canada Limited, 2021 HRTO 97 (Giang).
In Giang, the employee had a heart defibrillator implanted in his chest and was cautioned by his doctor to avoid exposure to high voltage machinery. The employee believed that certain equipment in his workplace presented a risk and was provided an accommodation allowing him to work in an area separate from this equipment. After a period of time, however, the employer decided to revoke the accommodation, and terminated the employee for refusing to work near the equipment.
Close to a year after terminating the employee, the employer undertook a workplace assessment to investigate whether the equipment posed an actual risk to workers with cardiac devices such as defibrillators. The resulting report ultimately found that there was no risk, meaning that there had never been an actual threat to the employee.
The Tribunal rejected the notion that after-acquired evidence could justify a decision to refuse an accommodation.
The Tribunal reminded employers that their accommodation efforts must be assessed at the time of the alleged discrimination. Employers should not be relying on impressionistic, anecdotal or "after-the fact" evidence to establish undue hardship or refuse an accommodation request.
In this particular case, the Tribunal took issue with the fact that the employer failed to ask further questions to better understand the doctor's request. The employer had assumed that the accommodation was not justified, after speaking to some of its staff to confirm the voltage of machinery. This information alone, as it turns out, was irrelevant. To form a proper opinion, the employer would have needed to take field measurements.
In delaying the audit of the workplace, the employer was in a position where it did not have the information necessary to support the position that the request was unreasonable or unnecessary. The procedural duty required, at minimum, seeking out information about the safety of the workplace for the employee.
The Tribunal ultimately concluded that the employer had failed to meet its obligations under the procedural element of the duty to accommodate. As a result, the employee was awarded compensation for lost wages in addition too $20,000 for injury to dignity, feelings, and self-respect.
Giang serves as a cautionary tale that employers cannot simply act on assumptions. Rather, a good-faith investigation must be undertaken to determine the validity of the accommodation request.
This duty to engage in the procedural element of the duty to accommodate must be undertaken promptly, and in a timely manner. Employers should be sure that the information used to offer or refuse an accommodation is reliable and that their reasoning is cogent.
1. 8. The duty to accommodate | Ontario Human Rights Commission (ohrc.on.ca); and see: 2007 HRTO 34 (CanLII) | Lane v. ADGA Group Consultants Inc. | CanLII, at paragraphs 79-84, 120, and 142-152.
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