It may be convenient and easy to use, but you cannot find the answer to everything on the Internet. As one employer recently learned, Google research on a medical condition is not a proper substitute for individualized accommodation. This was the finding of the Human Rights Tribunal of Ontario in Gaisiner v. Method Integration Inc. (PDF).
Method Integration Inc. ("Method") hired a Customization Solutions Specialist. Three months after he was hired, the Customization Soluctions Specialist's employment was terminated. The employee alleged that Method discriminated against him because of his attention deficit hyperactivity disorder ("ADHD") and failed to fulfill its duty to accommodate, contrary to the Ontario Human Rights Code (the "Code").
After the employee met with his manager to inform him of his ADHD diagnosis, the manager did some Google searches on ADHD to determine what sort of things he could do as a manager to ensure that Gaisiner was successful in his work. While he had difficulty locating information that was applicable to employees in support roles such as the one performed by the employee, he did find some general tips about working with individuals diagnosed with ADHD.
Method denied that it breached the Code. Method claimed that it terminated the employee's employment because he did not have the technical ability to perform the duties of his job. Method contended that it provided reasonable accommodations for the employee's disability and that any further accommodations would have caused the company undue hardship.
Prima Facie Case of Discrimination:
Many of Gaisiner's job performance issues were linked to his ADHD. The Human Rights Tribunal of Ontario ("HRTO") found that the employee established that Method breached the Code when it terminated him for performance issues that were at least in part related to his disability.
Duty to Accommodate:
The onus then switched to Method to prove that the technical skills it claimed the employee lacked were a bona fide occupational requirement. And further, that it attempted to accommodate the employee to the point of undue hardship.
The HRTO decided that Method failed to fulfill the procedural component of the duty to accommodate. The procedural aspect of the employer's duty to accommodate requires an employer to:
- undertake an individualized assessment of the employee's needs
- make an adequate assessment of potential accommodation measures
- tailor the approach to accommodation accordingly
In other words, the procedural aspect focuses on how the employer arrived at the accommodation or alternatively, at the decision not to accommodate.
Method's failure to fulfill its duty to accommodate:
Method failed to properly turn its mind to an individualized consideration of the employee's disability-related needs and whether it could meet them short of undue hardship. Instead of asking the employee's doctor about his ADHD needs, Method relied on initial Google search results and after-acquired evidence from the employee's doctor.
Internet searches typically only yield general information that will not be tailored to the individual characteristics and needs of a particular individual who is seeking to be accommodated - so said the HRTO. Information on the internet can often be misleading and/or simply wrong. It may be highly prejudicial and based on bias or stereotypes of persons with disabilities.
If an employer fails to go through an appropriate accommodation process, it will have breached the Code even where it can show that it would not have been able to accommodate the employee without undue hardship. Since Method did not properly consider what accommodations would be required to accommodate the employee's ADHD, it was not able to make an argument to demonstrate that the cost to accommodate the employee would have amounted to undue hardship.
The HRTO awarded the employee $10,000 for damages for injury to his dignity, feelings, and self-respect. The HRTO also ordered Method to hire an expert in human rights to audit and address any gaps in its human rights procedures.
Lessons for Employers:
This decision reinforces the importance of following appropriate processes when considering an employee's disability. Although a decision from Ontario, it will have impact across the country as many provinces recognize that an employer's procedural obligations are just as important as its substantive obligations in the accommodation analysis.
To assist with that their procedural obligations, we recommend that employers develop comprehensive Human Rights Policies and Disability Management Programs with clear procedures and clearly defined roles and responsibilities. In addition, employers need to be diligent in gathering objectively reliable information when tailoring their accommodation to meet the individualized needs of their employees. Employers need to take the time to ensure that they reasonably collect and assess the necessary information. This process takes time, but is usually far less costly than litigation.