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On an Employer’s “Duty to Inquire” Into an Employee’s Disability

An employer decides to dismiss an argumentative, insubordinate employee.  Afterwards, the employee files a human rights complaint claiming she suffers from a mental disability that influenced her performance and therefore her dismissal amounted to discrimination based on that disability.  The employer says, “Wait a minute, she never told us she was disabled, and she never asked for any form of accommodation”. She can’t raise all that after the fact, can she?

This is the basic scenario raised in a recent decision of the B..C. Human Rights Tribunal in a case called Mackenzie v. Jace Holdings.

Facts:   The employer spoke to the employee multiple times about ‘insubordination’, and in particular the employee’s argumentative nature and moodiness in her dealings with supervisors.  The employee went on ‘stress leave’ in the summer of 2009, and had advised a manager prior to this, that she suffered from depression.  When she returned to work after 2 months’ leave, she again was argumentative, and the employer decided to dismiss her.  At no time did the employee request accommodation or inform the employer that she believed her behaviour was related to a disability.  She filed a human rights complaint alleging she was dismissed for reasons related to her mental or physical disability.

Analysis

The B.C. Human Rights Code prohibits discrimination in employment on the basis of physical and mental disability.  A doctor testified that the employee suffered from depression and an adjustment disorder, and that depression my cause a lose of insight regarding symptoms like irritability.  However, this report was not provided to the employer prior to the dismissal, and the employer had no direct medical evidence explaining that the employee was disabled.  As noted, the employee did not request accommodation.

The Tribunal began by noting that it is usually the responsibility of an employee to bring to the attention of the employer the need for accommodation of a disability.  However, where the employer has “reason to suspect that a medical condition may be impacting the employee’s ability to work“, its failure to make inquiries regarding the employee’s health may constitute discrimination.  That was the situation here:

It is evident that Ms. Mackenzie did not expressly seek any particular accommodation for her depression or other mental health issues.  It is also clear that Thrifty’s, although it knew generally that Ms. Mackenzie was off on “stress leave” did not review her behaviour and seek to determine whether there was any component of her behaviour that could be explained by her mental health.  Thrifty’s did not investigate whether Ms. Mackenzie had amental disability that impacted her behaviour…

At least three people at Thrifty’s (Lisa Trotter, Marlena and Kathy Mikkelsen) were aware that Ms. Mackenzie had mental health issues.  Ms. Trotter was the person who made the decision to terminate Ms. Mackenzie’s employment.  No effort appears to have been made by Thrifty’s to determine how Ms. Mackenzie’s disability affected her work performance or whether any accommodation may be required.

The employer argued that taking orders from management is a bona fide occupational requirement of the job, but that argument failed because the employer led no evidence that it explored the possibility of accommodating the employee’s disability, which it should have suspected given the employee’s recent stress leave, and her admission to management that she suffered from depression.

Conclusion:  The employer discriminated against the employee on the basis of disability by dismissing her without first making inquiries into whether accommodation was needed, and considering possible accommodation.  The employer was ordered to pay lost wages from the date of dismissal to the date (about 6 months later) when the employee returned to school, as well as $5000 for injury to dignity.

Questions for Discussion

Do you think that it is fair to require the employer to ask employees if they require accommodation when the employee has not suggested that accommodation is necessary or that poor job performance is due to a disability?

Does the decision make clear to you when the duty of an employer to make inquiries about possible disabilities and accommodation kicks in?

Do you think that it is easy or difficult for an employer to recognize when the duty applies?

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3 Responses to On an Employer’s “Duty to Inquire” Into an Employee’s Disability

  1. Jennifer King Reply

    November 6, 2012 at 6:46 pm

    I do believe it is fair to require the employer to ask employees if they require accommodation. In this case the employee told her manager that she suffered from depression but that information didn’t go any further.

    As an HR professional, it is my experience that employees are not always aware of the accommodation process in their organization and sometimes are hesitant to partake in it. I believe it is in the best interest of the employer to follow-up on any information presented by an employee. It is just good disability management practices to do this and can save you costly legal situations. I also believe that the employee is not doing your organization any good in their job if they are dealing with a disability or health issue and it goes unaddressed.

    This case makes a clear point indicating that as soon as any disclosure of a disability the employer should make inquiries for possible accommodation. However, for invisible disabilities and where there is no disclosure by the employee it does make it difficult for employers to recognize when this duty applies. But in my opinion, if an employee shows poor work performance or is absent often then it is in the employer’s best interest to follow up with the employee.

  2. Chris Davidson Reply

    November 7, 2012 at 12:17 pm

    It’s perfectly reasonable to interpret human rights legislation as requiring the employer to inquire as to whether an employee has a disability before taking any action for poor job performance etc. Human rights legislation is remedial legislation and the remedies granted by the tribunal(s) are remedial, not punitive. Furthermore, it is well-established law the the employer’s intention is not relevant to an inquiry as to whether discrimination occurred. Requiring an employee with an ‘invisible disability’ to come forward first and ask for accommodation would only be justifiable if the employer’s intention were relevant.

    Many employees with disabilities will not initiate the process for accommodation because the stigma is too great (especially in the case of mental illness). To say that the employee has to come forward first is to deprive disabled employees of real protection, frustrating the legislative goal. Furthermore, as the Jace decision notes, disabled employees may have varying degrees of insight into how their disabilities manifest themselves and affect their work (especially the case when dealing with mental illness).

    In fact, because employer intention is irrelevant and individuals with mental disabilities are likely (for various reasons) not to seek accommodation until some problem has arisen, even to the point of not seeking accommodation until they are fired, the question, “Was the employer aware of the disability?” should never be asked.
    … I also have a theory, based on the same concerns, that arbitrators should be reinstating a lot more grievors who are fired due to disabilities. Who cares if the employer knew at the time of the decision that the employee was disabled? That’s a question for a legislative regime that requires an intention to discriminate. The question is, “The nexus between the dismissal and a disability being established at arbitration, can the employer now accommodate the grievor short of undue hardship?”
    PS – My advice to employers would be simple, anytime you think of taking action that adversely affects an employee’s employment, ask if they require any accommodation, if the employer can do anything to help out. In my opinion it’s what the law requires, but aside from that it’s what basic human decency requires.

  3. Karimjee Greene LLP Reply

    November 16, 2012 at 10:24 am

    Chris, Jennifer, well said.

    The accommodations process, though established as a way of protecting and upholding employee’s rights, seems to be failing in that there is a minimal amount of awareness. Many employees (and even some employers) are largely unaware that a process exists that protects them from unlawful criticism and dismissal while paving the way for the appropriate accommodations to be made. Until this process becomes mainstream, unfortunately, a large number of employees with disabilities, invisible or not, will be unknowingly stripped of their rights.

    Chris, I like what you’ve said regarding the stigma around disabilities and the need to accommodate as this is correct. By forcing a employee to come forward first and initiate the dialogue surrounding accommodations is to inevitably deprive the employee of his or her real protection. Any individual suffering from a mental illness, whether it be depression, post-traumatic stress disorder, etc., would rather keep silent on the issue of accommodation than risk exposure or embarrassment. It is about time employees are not only educated on their rights regarding accommodation but encouraged to speak openly about their needs without fear of ridicule.

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