The BC Supreme Court, in Emergency Health Services Commission v. Cassidy, has recently confirmed that an employer's duty to accommodate does not extend to include a free-standing procedural requirement that the employer treat the employee fairly, and with due respect for his dignity, throughout the accommodation process.
At issue in that case was the treatment of a paramedic with MS. As a result of diminished sensation in his hands, he was not able to palpate pulses, a basic but necessary part of his job. Upon learning of the employee's inability, the employer immediately removed him from active duty. After a number of months, the employee was eventually permitted to return to work as a driver only, at first on a restricted schedule and then on a regular schedule.
The Earlier Decision
In 2008, the BC Human Rights Tribunal concluded (in Cassidy v. Emergency Health and Services Commission and others (No. 2)) that given the employee's functional limitations and the available technology, it was not possible, short of undue hardship, to accommodate the employee in the position of attending paramedic. On that basis, the Tribunal concluded that the employer had complied with the substantive aspect of the duty to accommodate. However, as a result of the delay in finding the employee the new position, and the delay in returning him to a regular schedule, the Tribunal went on and said that the employer and a manager "…failed to comply with the procedural aspect of the duty to accommodate [the employee], in that they failed to treat him with dignity and respect in the accommodation process, including unnecessarily delaying effective accommodation in an alternative position".
BC Supreme Court Decision
The employer and the manager sought judicial review of the Tribunal's decision. In reviewing the decision, the BC Supreme Court reviewed the Supreme Court of Canada's decision in Human Rights Code in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (often referred to as "Meiorin"), in which the Supreme Court of Canada set out the test for determining whether a prima facie discriminatory standard is a bona fide occupational requirement ("BFOR") as follows:
- that the employer adopted the standard for a purpose rationally connected to the performance of the job;
- that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
- that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
The Tribunal had relied on Meiorin for the proposition that there exists both a procedural and substantive duty to accommodate. The BC Supreme Court explained that in Meiorin, the Supreme Court of Canada did not consider whether the employee had been treated "fairly, and with due respect for her dignity, throughout the accommodation process". Instead, the Supreme Court of Canada had used the distinction between a procedural analysis and substantive analysis as an analytical tool to determine whether or not the standard was a BFOR, and whether the individual had been accommodated to the point of undue hardship. In regards to Meiorin, the Court said:
While [the Supreme Court of Canada] wrote that it may often be useful to consider any procedure adopted in assessing accommodation, she did not write that such an analytical tool created a separate duty that can be breached. The single question remains of whether the employer could accommodate the employee without experiencing undue hardship.
The Court went on to say that the Tribunal erred in considering whether the employer had treated the employee "fairly, and with due respect for his dignity, throughout the accommodation process". Instead, the question the Tribunal should have asked was whether the employer "…reasonably accommodated [the employee], including whether it ought to have permitted him to work in some other position, existing or created for him, earlier than it did", and that in doing so, the Tribunal should have considered "…whether any of the potential alternate positions she was considering would have constituted undue hardship for the employer".
In the result, the Court sent the matter back to the Tribunal. It directed the Tribunal to consider whether the employer reasonably accommodated the employee, including whether it did so soon enough, and whether either of the accommodations reached imposed undue hardship on the employer.
What This Means for Employers
This decision makes it clear that although both the substance and the procedure followed in accommodating an employee may be relevant to the assessment of whether or not the duty to accommodate has been satisfied in any given case, the duty to accommodate does not include a separate procedural duty on employers to treat employees "fairly, and with due respect for his dignity, throughout the accommodation process". Thus, while treating employees fairly and with dignity throughout the accommodation process is good practice for any employer, employees do not have a free-standing legal right to such treatment that, if breached, alone can ground liability on the part of the employer. The single question in regards to the duty to accommodate remains: could the employer accommodate the employer without experiencing undue hardship? Hopefully this principle will be adopted throughout the rest of the country.