In a recent labour arbitration decision, a teacher claimed that her lengthy commute to school aggravated the symptoms of her multiple disabilities, and requested to transfer to a school closer to home. When the Toronto District School Board (the Board) refused her request, the teacher grieved the decision, claiming discrimination on the basis of disability. The arbitrator ruled in favour of the Board, finding that a transfer may be a required accommodation in some circumstances, but that this particular teacher had not established that her disabilities were the true reason for her transfer request.1

Background

The teacher in question taught economics and English as a second language at a Toronto school. She had multiple chronic conditions, including fibromyalgia, chronic fatigue syndrome, asthma, sleep apnea, seasonal affective disorder, scoliosis and irritable bowel syndrome. She was provided with several accommodations at work, including a classroom close to the washroom and access to the school elevator.

The teacher had previously lived close to the school, but in 2006, her family moved to Markham. For several years, the teacher drove 35 minutes to 1 hour and 50 minutes in each direction, depending on traffic, as part of her new commute. On August 29, 2012, just a few days before the start of the new school year, the teacher requested a transfer to a school closer to her home, claiming that her lengthy commute from Markham aggravated the symptoms of her disabilities.

Because the teacher could not find a teacher willing to trade assignments, and because she did not wish to wait until the end of the school year to transfer, the teacher applied for an accommodation-based transfer, to take place on an expedited basis.

During the accommodation process, the Board found the teacher’s medical documentation insufficient and grew frustrated with her insistence on a transfer to the exclusion of all other suggested adjustments or accommodations. After lengthy consultations, the Board refused the teacher’s transfer request. The union grieved the transfer denial.

Decision and analysis

At arbitration, the union argued that the teacher had been subject to discrimination on the basis of disability, contrary to the Ontario Human Rights Code (the Code).

In denying that it had discriminated against the teacher, the Board argued that:

  • An employer does not have control over an employee’s commute and, therefore, a commute cannot be a source of discrimination;
  • In the alternative, a commute can only be a source of discrimination if the employer took an action to make it so. In this case, the teacher’s commute was caused by her own actions through her move to Markham;
  • In any event, the adverse affects in this case were the product of the teacher’s refusal to adjust her commute, and not a product of her disability.

The arbitrator ultimately disagreed with the Board’s first two points, but agreed with the third point and dismissed the grievance on that basis.

Firstly, the arbitrator found that a commute can be a source of adverse treatment that is discriminatory. In making this finding, the arbitrator rejected American jurisprudence in favour of recent Canadian decisions.2

Secondly, the arbitrator rejected the Board’s argument that, if a commute can be a source of discrimination, it can only be so if an employer’s action caused a change to the commute. In rejecting this “employer-action” approach, the arbitrator found that, although the circumstances giving rise to an employee’s request for accommodation in their commute are relevant, they are best considered as part of the entire factual matrix when determining if a given situation results in discrimination. The fact that a longer commute is the result of an employee’s own choices will not automatically negate the employer’s duty to accommodate.

Specifically, an employee’s commute involves factors that are within the employer’s control, such as the location of the work and the timing of the commute. However, a commute also involves factors that are within the sole control of the employee, such as the method of transportation and route taken. The choices the employee makes can have a significant impact on the outcome for the employee and must be taken into account in the analysis.

In the case at hand, the teacher’s longer commute was caused by her own decision to move to Markham. While this did not automatically negate the Board’s duty to accommodate her, it was a relevant factor in the analysis.

Further, the teacher had refused to consider numerous proposed accommodations and adjustments that could have shortened the length of her commute or made it less physically arduous. Such accommodations and adjustments could have included:

  1. adjusting her work schedule so that she could commute during periods of lighter traffic;
  2. carpooling with her husband;
  3. taking the toll highway 407;
  4. taking public transit; or
  5. breaking her drive into shorter segments, pulling over, and stretching.

Also relevant was the teacher’s admission that one of the reasons she desired a transfer was to stop working alongside a new principal with whom she clashed. The teacher did not allege that she was subject to workplace harassment, but did admit that the personality clash at work was one of her reasons for requesting a transfer.

The arbitrator ultimately found that, while the teacher’s commute may not have been ideal, the evidence showed that the teacher sought to change schools primarily because she preferred a shorter drive and because she wished to get away from colleagues with whom she clashed, and not because of her disabilities. The teacher’s own choices and preferences had led to that adverse impact, including her refusal to take the 407, her refusal to break her drive into short segments and stretch, her refusal to adjust her commute to drive during periods of lighter traffic, and her decision to relocate to Markham in the first place.

For these reasons the arbitrator found that the teacher’s disability was not a factor in the adverse impact caused by her commute.

Takeaways for school boards

Although based on the facts of this particular case the teacher was not entitled to transfer to a closer school; this decision suggests that a commute can be a source of discrimination.

However, this case also demonstrates that arbitrators will be reluctant to grant accommodation-based transfers where the teacher has not been adequately cooperative in the accommodation process, where alternative adjustments to their commute could provide adequate accommodation, or where they appear to be using the accommodation process as an excuse to transfer away from disagreeable colleagues.