by Andrew Bratt and Megan Rolland
Canadian human rights legislation generally requires employers to accommodate the disabilities of their employees up to the point of undue hardship. In the recent case of Pourasadi v. Bentley Leathers Inc. (2015 HRTO 138), the Human Rights Tribunal of Ontario considered whether undue hardship was reached in the context of a retail employee with a physical disability that affected her ability to serve customers.
The tribunal found that not being able to serve customers rendered this particular employee incapable of performing the essential duties of her job. The tribunal went on to conclude that the duty to accommodate did not extend so far as to require her employer to exempt her from performing those essential duties.
Facts
The employee in question was a manager of a retail store. An important part of her job duties was a requirement that she interact with and assist customers on a regular basis. In 2008, the employee injured her right wrist while unpacking a box. As a result of this injury, the employee was limited in her ability to perform some of the physical tasks associated with her role, including assisting customers.
After many attempts to accommodate the employee’s restrictions, the Ontario Workplace Safety and Insurance Board ultimately accepted the employee into a retraining program. Her employment was terminated by the retail store soon thereafter. The employee subsequently filed a human rights complaint alleging discrimination on the basis of disability.
Employee’s argument
The employee argued that when she was working alone in the store, she ought to be allowed to tell customers that they had to return to the store at a later time if they required assistance with certain tasks that were outside of her physical capabilities. She further argued that the duty to accommodate under human rights legislation could extend so far as to require the employer to: (a) permit her to ask customers to leave the store and come back later when someone else could help them; and (b) permit her to delegate certain tasks to other employees.
In support of her position, the employee argued that the types of circumstances in which she would be unable to assist a customer would be infrequent and that any resulting hardship to the employer would therefore be minimal. In other words, she maintained that because she was capable of assisting customers most of the time, she was, in fact, capable of performing the essential duties of her position.
Employer’s argument
The employer countered by submitting that assisting customers was an essential part of the employee’s job and that requiring the store to permit a store manager to turn customers away would be an extraordinary and unwarranted extension of the duty to accommodate.
The employer argued that it was irrelevant how often the employee would have to tell customers to return to the store at a later time because the accommodation requested went to the heart of the essential duties of the employee’s position. The employer further submitted that the tribunal was obligated to consider the legitimate operational requirements of the workplace when assessing whether the employer had discharged its duty to accommodate.
Tribunal’s decision
The tribunal accepted evidence led by the employer at the hearing that assisting customers constituted over two-thirds of the duties of a store manager and that store managers were typically assigned to work alone for approximately 19.5 hours per week. In light of these specific facts, the tribunal found that assisting customers was an essential duty of the store manager position.
The tribunal went on to conclude that the duty to accommodate did not extend so far as to require the employer to accommodate the employee’s injury by allowing her—when working alone—to ask customers to return to the store when other staff would be available to assist them. Thus, the threshold of undue hardship had been reached.
In rendering its decision, the tribunal reiterated the scope of the duty to accommodate. While an employer can be required to rearrange an employee’s workplace in order to allow the employee to perform the essential duties of his or her job, the duty to accommodate does not require:
• Permanently assigning the essential duties of a position to other employees;
• Permanently changing the essential duties of a position; or
• Exempting employees from performing the essential duties of their position.
Lessons learned
This decision confirms that the determination of undue hardship will always turn on the specific facts of each case. While it can be difficult to assess whether a particular form of accommodation requested by an employee amounts to undue hardship, the critical question that must always be asked is whether the employee is able to perform the essential duties of his or her position.
If the accommodation requested would effectively exempt the employee from performing the essential functions of his or her job, undue hardship may have been reached.