It may be convenient and easy to use, but you cannot find the answer to everything on the Internet. As one Canadian employer recently learned, Google research on a medical condition is not a proper substitute for individualized accommodation.
This was the finding of the Human Rights Tribunal (HRTO) of Ontario in Gaisiner v. Method Integration Inc. where the employee’s manager did some Google searches on attention deficit hyperactivity disorder (ADHD) to determine what sort of things he could do as a manager to ensure that an employee was successful in his work.
While the manager had difficulty locating information that was applicable to employees in support roles such as the one performed by the employee, the manager found some general tips about working with individuals diagnosed with ADHD. Relying on those general tips was not enough to satisfy the employer’s procedural duty to accommodate—so said the HRTO.
Facts
Method Integration Inc. hired a customization solutions specialist. Three months after he was hired, his employment was terminated. The employee alleged that Method discriminated against him because of his ADHD and failed to fulfill its duty to accommodate, contrary to the Ontario Human Rights Code.
Method denied that it breached the Code. Method claimed that it terminated the employee’s employment because he did not have the technical ability to perform the duties of his job. Method contended that it provided reasonable accommodations for his disability and that any further accommodations would have caused the company undue hardship.
Prima facie case of discrimination
Many of the employee’s job performance issues were linked to his ADHD. The HRTO found that the employee established that Method breached the Code when it terminated him for performance issues that were at least in part related to his disability.
Duty to accommodate
The onus then switched to Method to prove that the technical skills it claimed the employee lacked were a bona fide occupational requirement. Also, the employer needed to show that it attempted to accommodate the employee to the point of undue hardship.
The HRTO decided that Method failed to fulfill the procedural component of the duty to accommodate. The procedural aspect of the employer’s duty to accommodate requires an employer to:
• Undertake an individualized assessment of the employee’s needs;
• Make an adequate assessment of potential accommodation measures; and
• Tailor the approach to accommodation accordingly.
In other words, the procedural aspect focuses on how the employer arrived at the accommodation or, alternatively, the decision not to accommodate.
Method’s failure to fulfill its duty to accommodate
Method failed to properly turn its mind to an individualized consideration of the employee’s disability-related needs and whether it could meet them short of undue hardship. Instead of specifically inquiring with the employee’s doctor about his ADHD needs, Method relied on initial Google search results and after-acquired evidence from the employee’s doctor.
According to the HRTO, Internet searches typically yield only general information that will not be tailored to the individual characteristics and needs of a particular individual who is seeking to be accommodated. Information on the Internet can often be misleading and/or simply wrong. It may be highly prejudicial and based on bias or stereotypes of persons with disabilities.
Undue hardship
If an employer fails to go through an appropriate accommodation process, it will have breached the Code even where it can show that it would not have been able to accommodate the employee without undue hardship. Since Method did not properly consider what accommodations would be required to accommodate the employee’s ADHD, it was not able to make an argument to demonstrate that the cost to accommodate the employee would have amounted to undue hardship.
Remedy
The HRTO awarded the employee $10,000 for damages for injury to his dignity, feelings, and self-respect. The HRTO also ordered Method to hire an expert in human rights to audit and address any gaps in its human rights procedures.
Lessons for employers
This decision reinforces the importance of following appropriate processes when considering an employee’s disability. Although a decision from Ontario, it will have impact across Canada as many provinces recognize that an employer’s procedural obligations are just as important as its substantive obligations in the accommodation analysis.
To assist with their procedural obligations, we recommend that Canadian employers develop comprehensive human rights policies and disability management programs with clear procedures and clearly defined roles and responsibilities.
In addition, employers need to be diligent in gathering objectively reliable information when tailoring their accommodation to meet the individualized needs of their employees. Employers need to take the time to ensure that they reasonably collect and assess the necessary information. This process takes time, but it is usually far less costly than litigation.
