In May 2014, the Alberta Court of Appeal released its decision in Telecommunications Workers Union v Telus Communications Inc., 2014 ABCA 154 (“Telus”), which confirmed that in cases of adverse-effect discrimination, it is irrelevant whether the employer knows about the employee’s disability.
Telus Case Background
In Telus, the employee grievor has Asperger’s Syndrome. The grievor had completed an online application for the job of Essentials Agent at a Telus call centre, and answered “yes” to the question of whether he had a disability. The form did not allow the employee to provide further details and the employer never requested additional information. During the probationary period, several performance issues arose and the employee was monitored by supervisors. There was some evidence to suggest that the employee raised his “condition” as a reason for his performance issues a week prior to his termination within the probationary period, but the employer determined this was an “11th hour statement” without any content and did not follow up further. The grievor was ultimately terminated on October 27, 2010, just prior to the end of his probationary period, for failing to meet performance standards.
Arbitrator and Judicial Review Findings
The Telecommunications Workers Union brought the grievor’s claim to labour arbitration. The Arbitrator found that the grievor did have a recognized disability and that the disability was a contributing factor in the employee’s failure to meet performance standards and his ultimate termination. The Court of Queen’s Bench (“QB”), on judicial review, upheld the Arbitrator’s decision to apply the test in Burgess v Stephen W Huk Professional Corp, 2010 ABQB 424 (“Burgess”), which requires employer knowledge of the disability.
The QB judge also found the Arbitrator was reasonable to find that:
- the employer did not have actual or imputed knowledge of the employee’s disability; and
- the employee’s performance would not have led the employer to suspect the problems were related to a disability.
No Right to Accommodation If Substantive Accommodation Not Possible
The Court of Appeal held that the Court of Queen’s Bench applied the wrong test. The test in Burgess is not applicable to cases of adverse-effect discrimination, where there is a “uniform application of a seemingly neutral employment policy to all employees, regardless of whether some employees have protected characteristics.” The Court of Appeal also noted “[t]he impugned policy applies to a disabled employee whether or not the employer knows about the disability." (Telus, at para 29)
The Court of Appeal confirmed that the appropriate test to demonstrate prima facie adverse-effect discrimination is the three-step process set out in Moore v Ministry of Health, 2012 SCC 61 (“Moore”):
- The claimant has a characteristic that is protected from discrimination under the Code;
- The claimant has experienced an adverse impact; and
- The claimant must show that the protected characteristic was a factor in the adverse impact.
(Telus, at para 28; citing Moore, at para 33)
Ultimately, the Court of Appeal found that the employer had demonstrated prima facie discrimination, but that the employer had justified the discriminatory standard under the bona fide occupational requirement (“BFOR”) test as set out at para 54 of the Supreme Court of Canada decision in British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union (B.C.G.S.E.U.),  3 S.C.R. 3, commonly referred to as the “Meiorindecision,” acknowledging the Arbitrator’s findings that the employee could not be substantially accommodated as an Essentials Agent or in other Telus positions.
In reaching this conclusion, the Court of Appeal determined it was unnecessary to consider whether the employee’s probationary status altered the accommodation test. The Court of Appeal rejected the Union’s argument that justification can only be found where the employer attempts accommodation, adopting the Federal Court’s ruling that there is no procedural right to accommodation under the Alberta legislation or Meiorin once it has been demonstrated that substantive accommodation is not possible.
The Court of Appeal found the Arbitrator’s decision that the grievor could not be accommodated was reasonable, and dismissed the union’s appeal.
Adverse-Effect Discrimination: Important Reminders for Employers
- If you have a seemingly neutral policy that adversely impacts an employee with a recognized disability because of that disability, there is adverse-effect discrimination.
- It is possible for you to create adverse-effect discrimination even where you do not have knowledge of the employee’s disabilities.
- If your policy results in adverse-effect discrimination, you need to be able to justify it under the bona fide occupational requirement (“BFOR”) test established in Meiorin:
- Was the policy adopted for a purpose rationally connected to the job performance?
- Was the policy adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose?
- Is the policy reasonably necessary to accomplish the legitimate purpose in Step 2? (In order to be reasonable you must be able to demonstrate that it was impossible to accommodate the employee without facing undue hardship.)