When an employee in Ontario experiences any kind of disabling condition, whether physical or mental, that impairs their ability to work, the employer is required by the Ontario Human Rights Code make such changes to the workplace and/or duties so as to “accommodate” the disabling condition. This obligation to accommodate is only excused if the employee is unable to perform the “essential duties” of their employment even with accommodation, or the provision of the accommodation cause the employer “undue hardship”.

Any employer who fails to accommodate a disabled employee or otherwise fails to ensure that the disabled employee has whatever they need to ensure they can continue to carry out their work duties effectively and responsibly may find themselves on the receiving end of a human rights complaint of discrimination in employment based on disability.

The Human Rights Tribunal of Ontario, which is tasked with administering complaints of discrimination, is empowered to review such complaints and order remedies in the event an infraction of rights is substantiated.

In this blog, we explore disability in the context of employment, including defining the duty to accommodate and how such duty may be satisfied and discussing remedies that may be levied in the event an employer is found to have failed in its duty to accommodate a disabled employee.

Employer Terminates Employee While She is on Medical Leave

The case of Griffiths v Simranjit Dhillon involved a complainant who had worked for the respondent employer for 26 months, from May of 2016 until August of 2018. Approximately six months before the complainant departed from the respondent employer, the employer introduced a new hire into its human resources division. This new employee, to whom the complainant reported, bullied the complainant relentlessly and forced the complainant to complete many of her roles on her behalf. Moreover, the new hire threatened to fire the complainant on multiple occasions.

Given the difficult working environment at the defendant’s employer caused by the new hire’s behaviour, the complainant began to experience heart palpitations, anxiety and panic attacks in the workplace, as a result of which, in August of 2018, the complainant went off work on medical leave, supported by three medical notes from the complainant’s treating medical professionals. In November of 2018, when the complainant sought to return to her job, she was advised by the respondent that she had abandoned her position and, thus, there was no job for her to return to. The complainant then commenced, amongst other things, this complaint of discrimination in employment based on disability.

How to Prove Discrimination in Employment

In Ontario, discrimination against any person in their employment is prohibited under section 5 of the province’s Human Rights Code. This code dictates that every person has the right to be free of discrimination in their employment on several enumerated grounds, including (but not limited to) race, creed, sex, and disability. These grounds are known as protected characteristics.

The person who alleges that they have been discriminated against bears the onus of proving, on the balance of probabilities (i.e., to a certainty of 51%), the following three criteria:

1. The applicant possesses one of the protected characteristics listed in section 5 of the Code
2. The applicant suffered some kind of adverse impact or disadvantage
3. The protected characteristic of the applicant was a factor in the adverse impact/disadvantage experienced by the applicant

The Tribunal has recognized in past decisions that direct evidence is rarely available in discrimination cases because people “rarely announce an intention to discriminate”. As such, the Tribunal typically relies upon circumstantial evidence to successfully make out a discrimination claim. In so doing, the Tribunal will weigh all of the evidence provided by both parties to determine whether it is more probable than not that the discriminatory behaviour occurred as alleged.

What is the Duty to Accommodate?

The duty of an employer to accommodate a disabled employee has been defined by the Tribunal as a collaborative, cooperative process that requires the participation of both parties. An employee must advise their employer of a need for accommodation because it would be unfair to hold an employer responsible for failing to accommodate an employee they were unaware required any such accommodation. Employers, for their part, are required by section 17(2) of the Code to engage in good faith, reasonable efforts to either alter the duties assigned to the employee in question or amend the process by which the person carries out the duties of their employment, so as to accommodate.

The employer is not required to provide accommodations that cause the employer “undue hardship”, which is defined as actions requiring significant difficulty or expense, or actions that would create health and safety risks.

In addition, accommodation is not required if the employee if the employee cannot establish that they are able to perform the essential duties of the job if the requested accommodations are provided.

Failure by the employer to undertake adequate, reasonable efforts to accommodate a disabled employee constitutes a violation of the Code, which entitles the complainant to remedies for the breach of their right to be free from discrimination in their employment.

Was the Employee in this Case Discriminated Against Because of Disability?

The Tribunal reviewed all of the facts and evidence offered in this case. It noted that the complainant had submitted medical notes to her employer in support of her taking stress-related medical leave. As such, the employer was well aware that the complainant took medical leave because of the stress she was experiencing at work due to the behaviour of the new hire in the HR department. Moreover, the complainant had kept the employer apprised of her progress throughout her leave until she was ready to return. She would have sought accommodation if her position remained available at that point. Given that the employer never bothered to send the complainant a notice of termination and instead simply terminated her employment without notice, and given that she had a right to expect the employer to accommodate her disability without terminating her employment, the Tribunal was satisfied that the employer had breached the complainant’s Code protected right to be free from discrimination in her employment.

Remedies for Discrimination in Employment

Section 45.2 of the Code empowers the Tribunal to make any or all of the following three orders when seeking to remedy a complaint of discrimination:

1. An order for monetary compensation, payable by the person who infringed the rights to the person whose rights were infringed, including compensation for injury to dignity, self-respect and feelings
2. An order directing the party who infringed the rights to make restitution other than monetary compensation to the party whose rights were infringed
3. An order directing any party to the complaint to do or not do anything that the Tribunal opines will promote compliance with the Code

In assessing the appropriate amount of compensation to award for injury to dignity, feelings and self-respect, the Tribunal will consider the objective seriousness of the impugned conduct as well as the specific effects of the discriminatory behaviour on the particular complainant before the Tribunal, including the vulnerability of the complainant, the immediate impact of the discriminatory behaviour on the complainant, the degree of anxiety caused by the discrimination and the intensity and frequency of the conduct. As such, “the more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings, and self-respect,” and compensation is typically higher when the complainant experienced particular emotional difficulty as a direct result of the discriminatory behaviour.

The Appropriate Remedy in This Case

In this case, the Tribunal was satisfied that the complainant was entitled to receive lost wages for the income she would have earned in the interval from the official termination of her employment on November 8, 2018, until she secured gainful replacement employment on February 6, 2019. The complainant testified that this amounted to $3,873.17, and the Tribunal awarded her this amount.

The Tribunal noted that the complainant had been terminated regarding compensation for injury to dignity, feelings and self-respect. At the same time, she was on medical leave for disability-related reasons, which constituted a “significant incident.”

However, the applicant remained unemployed for only a short duration and could secure suitable employment at a comparable rate of compensation within 3 months’ time. The Tribunal was satisfied that these factors weighed in favour of an award at the lower end of the scale and awarded $5,000 in compensation for injury to dignity, feelings, and self-respect. Both awards were subject to pre- and post-judgment interest of 2 per cent and 6 per cent, respectively.

To Discuss Workplace Accommodations For Your Disability, Contact Tierney Stauffer LLP Today

If you’re a disabled employee or an employer seeking clarity on your rights and obligations, contact the experienced employment lawyers at Tierney Stauffer LLP today. Our team has a proven track record of successfully resolving complex employment disputes. Schedule a consultation today by calling 1-888-799-8057 or contacting us online.