The Alberta Court of Queen’s Bench released a concerning decision on May 16th in Telecommunications Workers Union v Telus Communications Inc., 2013 ABQB 298, in which the applicant Union appealed an arbitration decision upholding Telus’ termination of a probationary employee with Asperger’s Syndrome.  Asperger’s Syndrome is a type of “Autism Spectrum Disorder” which impairs an individual’s communication, understanding and social interaction, without delaying language or cognitive development (see here for more details).

The arbitrator had found that the employee did have a recognized disability under Alberta human rights legislation, and that his Asperger’s Syndrome was a contributing factor in his termination. The arbitrator had also found the employee had brought his disability to Telus’ attention by checking “yes” to having a disability on the job application diversity questionnaire, and by raising it at a meeting one week before his termination.

The Court held that the arbitrator had correctly applied the test for prima facie discrimination in circumstances where the employer’s knowledge of the disability is unclear: first, the complainant has the burden of proving the employer knew or ought to have known of the complainant’s disability, at which point the burden shifted to the employer to prove it has met its duty to accommodate. The Court distinguished this from the three-part test confirmed by the Supreme Court of Canada in Moore v British Columbia (Education), which applies to situations where it is clear the employer knew of the condition.

The Court dismissed the appeal for judicial review, and held that the arbitrator was reasonable in determining that the employee insufficiently disclosed his disability, whether solely by ticking “yes” to a disability on his diversity form, or by ticking “yes” in conjunction with a vague reference to his disability only when upcoming termination became evident. The Court also found that the duty to accommodate did not require Telus to follow up on the information they had about the employee’s disability, based partly on the fact that the deficiencies were not such that an employer would suspect they were related to a disability, and that the employee had represented to Telus that he understood his performance issues and was working to improve them.

The decision of the Court is troubling for many reasons. First of all, it seems counter-productive to establish two separate legal tests based on how obvious or “clear” a disability is, only to find that the second legal test isn’t met by a blanket admission of a disability. Rather, if you tell your employer you have a disability, but your deficiencies aren’t suspicious enough, you have not adequately advised your employer. This renders a diversity form requesting disability disclosure as a politically-correct ploy to meet a quota to qualify for Top Diversity Employer status, while failing to actually accommodate and support diversity by following up with inquiries as to how better incorporate disabled individuals into the workplace.

Further, the decision recognizes Asperger’s as a recognized or protectable disability, yet seems to suggest that someone with Asperger’s isn’t disabled enough, because the deficiencies faced by the employee wouldn’t immediately cause an employer to suspect a disability. This reinforces society’s ignorance and assumptions about disabilities such as Asperger’s, and serves to further marginalize those living with the condition.  It is also disconcerting that the employee’s recognition of his deficiencies and attempts to improve could be used against him, as this implies that someone with Asperger’s or a similar disability cannot or should not be conscious of the difficulties he faces, and in any event, should not try to develop or learn new skills to address the behavioural differences resulting from the Disorder.

This state of the law serves neither employees nor employers well. While it may effectively reduce an employer’s duty to inquire, it also reduces clarity in the law, which allows both employers and employees to understand their respective obligations. Furthermore, limiting a duty to inquire in such a way may hamper an employer’s desire to create and foster a welcoming and diverse workplace, resulting in the employer being unaware of the difficulties or deficiencies possessed by employees and being communicated to customers or clients, and perhaps overlooking the unique skills of the employee that remain un-harnessed.

I understand that the Union will be appealing the decision, and look forward to reporting the developments of what could become a very important case for Alberta Human Rights and Employment Law.

The Court also upheld the arbitrator’s findings with respect to two other issues surrounding the duty to accommodate that are not reported in this blog. Please see the full decision here.

The term “disabled” and its derivatives have been used to reflect terms used in the legislation and jurisprudence, and not to negate the abilities of the individuals categorized therein.