Physical Standards For Employment And Human Rights: Understanding Accommodations Under Canadian And British Columbia Law

Evaluating Accommodations under the Canadian Human Rights Act and British Columbia Employment Equality Act

Discuss about the Physical standard for employment and human rights.

Whether Suzie has committed discrimination against Barry

According to section 2 of the Canadian Human Rights Act [CHRA], employers are prohibited from discriminating against employees on 13 grounds stipulated under this provision (Barak 2016). The employers are obligated to accommodate employees in order to avoid such discrimination to the extent such employers do not face undue hardships while exercising such duty after considering the safety, cost and health of the employees as was ruled in Canada (Human Rights Commission) v Canada (Attorney General) [2015] 3 FCR 103, 2014 FCA 131.

The grounds of discrimination stipulated under section 2 of the CHRA are enumerated below:

• Religion;
• Race;
• Color;
• Age;
• Sexual discrimination;
• Sexual orientation;
• genetic characteristics;
• family status;
• Disability;
• Conviction for an offence;

In regards to disability, it refers to a mental or physical condition that is ongoing, permanent periodic or continuous in nature. Such disability must significantly restrict or limit the ability of the individual to carry out certain important functions of life like employment. Disabilities may be of physical nature such as need for a wheelchair or invisible disability such as behavioral, mental health or learning health issues (Adams 2016).

The duty to accommodate aims at removing discriminating hindrances associated with the 13 discriminatory grounds that are prohibited to the extent it causes undue hardship to the employer. The duty of the employer to accommodate the employees also arises from the problems related to the performance of the employees (Adams 2016). A supervisor or manager is obligated to determine if any employee requires accommodation even if the employee has not asked for the same.

The following circumstances signify whether further investigation for accommodation is required to be made:

• Feedback from the co-workers about change in the behavioral conduct of the employee;
• Sudden changes in behavioral conduct; or
• Unusual poor work performance;

Under any of the above circumstances, it is mandatory to establish that the employer had discussed about the change in the behavioral conduct with the employee and have offered him with accommodation severally but the employee did not wish to continue with the accommodation.

Further, there are certain exceptions to the duty of accommodation to ensure the right of an employer to operate in a productive workplace. A manager or supervisor is not required to exercise his duty to accommodate under the following circumstances:

• where the employer faces undue hardship in terms safety, cost and health by exercising accommodation;
• where the employee is unable to perform his or her employment responsibilities despite providing accommodations to the employee;

• Now, as section 2 of the CHRA stipulates, an employer is prohibited from discriminating against any employee on any of the 13 grounds set out under the provision.
• In the given scenario, Barry can be said to have been undergoing a certain mental condition that is of continuing nature forming a disability;
• His disability in the form of mental condition has impeded his ability to carry out his responsibilities as an installer of Easy Access Telephone Co.
• The duty to accommodate arises when there is a change in the performance of the employee, hence, there was a change in Barry’s behavior;
• Barry’s loud talking that too in an agitated manner with the client who was apparently an elderly lady signified that his mental condition impacted his behavioral conduct;
• Suzie, Barry’s supervisor understood his behavioral change and accommodated him with other works where he does not have to deal with customers, however, Barry did not accept such accommodation and persisted with his behavior;

Here, as per the CHRA, an employee must accommodate an employee until it causes undue hardship to the employer in terms of health and safety.  In this given scenario, Suzie accommodated Barry to some other job where he did not have to deal with customers. However, since he did not accept such accommodation and his behavior would cause him undue hardship in terms of safety of the employer, his termination was justified and cannot be said to be discrimination on the ground of disability.

The Duty to Accommodate Employees

Whether Jim Crusty has committed discrimination against Gini

According to section 2 of the Employment Equality Act 1995, the Act purports to achieve equality in the workplace to ensure that no person is denied of any employment opportunities or other benefits on the ground not related to their ability but to disadvantages experienced by aboriginals, women, visible minorities and disabled persons (Challinor 2017). This statute is based on the notion that employment equity not only implies equal treatment to the employees but also requires providing different form of accommodations and special measures.

Further, under section 2 of the CHRA states that an employer must ensure that an employee with disability must be provided with accommodation until the disability causes the employer undue hardships in terms of safety, cost and health as was established in Mulvihill v Ottawa (2008).

In order to determine undue hardship, employers must establish the following factors:

• that accommodation was provided to the extent until undue hardship was faced by the employer;
• the undue hardship was in terms of cost, safety, health, collective arguments, legitimate operational requirements of the workplace, interchangeability of the facilities and workforce;

In British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) [1999] 36 C HRR D/129 (SCC) (Gismer case) and in British Columbia (Public service Employee Relations Comm) v B.C.G.E.U [1999] 35 CHRR D/257 (Meorin case), the Supreme Court established three essential rules or standards. The rules established that the termination of the employee was a valid occupational requirement and not a discrimination against the employee:

1. the standard was adopted in good faith on necessary grounds;
2. the standard was adopted in relation to the function of the position;

• the standard is necessary to achieve the purpose with the view that the employer will suffer undue hardship if individuals with such characteristics are accommodated;

In order to make a successful accommodation, it is important that the employee perform the following:

• the employee must communicate to the employer about the need for accommodation instead of merely assuming that the employer would have knowledge about the need;
• work with the manager to seek appropriate accommodation solutions;
• provide the employer with relevant information in support of the request for accommodation;

According to the Canadian Human Rights Act, an employer is entitled to provide accommodation when the employee has requested for such accommodation, as the duty to accommodate an employee is not about preferences of the employees but a duty of the employers to avert discriminatory hindrances that prevents any employee from carrying out his or her responsibilities (Challinor 2017).

1. In the given scenario, Gini have been a teaching dance class for several years and has been favorite dance instructor for her students;
2. Due to her accident, she faced certain physical difficulties due to which Jim terminates as he feels she would not be able to take dancing classes anymore;

• However, as was observed in Meorin and Gismer’s case, the employer must establish three essential rules to prove that accommodating Gini would cause him undue hardship;

1. Moreover, Jim and Gini had several meetings where she communicated about her need to accommodate to less strenuous jobs which she used to do already before being physically injured like booking students, collecting fees and booking rooms for dance at the dance studio;
2. Jim did not express any concern about her good skills and performance in less strenuous jobs and denied her any accommodation;
3. The denial of accommodation to Gini amounts to violation of the purpose of the Employment Equality Act 1995 that aims at ensuring equality in employment and that employees belonging to four categories that is women, disabled persons, person with disadvantage sand visible minorities is denied of employment benefits on grounds of disability or other disadvantages.

• Gini being a woman has been denied with employment opportunities based on her disability and her ability and Jim did not consider her good work skills.
• Further, under Canada human Rights Act, an employer is obligated to accommodate an employee as a means to remove the barriers that the employee faces owing to his or her disability.

1. Jim not only failed to exercise his duty to accommodate but also failed to record the reasons to justify such termination.

If Gini was provided with accommodation it would not have caused any undue hardship to Jim in terms of cost, safety and health as she was a good performer and was capable of carrying out her other responsibilities like booking students or collecting fees equally well along with her responsibility as a dance teacher.

Reference list

Adams, E.M., 2016. Human rights at work: Physical standards for employment and human rights law. Applied physiology, nutrition, and metabolism, 41(6), pp.S63-S73.

Barak, M.E.M., 2016. Managing diversity: Toward a globally inclusive workplace. Sage Publications.

British Columbia (Public service Employee Relations Comm) v B.C.G.E.U [1999] 35 CHRR D/257 (Meorin case)

British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) [1999] 36 C HRR D/129 (SCC) (Gismer case)

Canada (Human Rights Commission) v Canada (Attorney General) [2015] 3 FCR 103, 2014 FCA 131.

Canadian Human Rights Act [CHRA]

Challinor, A., 2017. About the Ontario Chamber of Commerce.

Employment Equality Act 1995

Isaac, T. and King, R.J., 2016. Aboriginal Law in Canada.

Mulvihill v. Ottawa (2008), 235 O.A.C. 113 (CA)