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The Limits on the Duty to Accommodate

A recent case from the Human Rights Tribunal of Ontario provides guidance to employers on the extent of the duty to accommodate. In Pourasadi v Bentley Leathers Inc., the Applicant alleged that she was discriminated against on the basis of disability after her employment as a Store Manager was terminated. She argued that the employer failed to provide reasonable accommodation to the point of undue hardship.

The Respondent was a retailer selling a variety of items, including purses, wallets, backpacks and luggage. The Store Manager position was predominately a sales/customer service job, with some duties related to merchandizing, displays, housekeeping, training and development.

In 2008, the Applicant injured her wrist while unpacking a box. Her injuries rendered her unable to perform all the essential duties of her position, including serving customers.  There were periods in the morning when the Store Manager would work alone. The Respondent accommodated the Applicant for a period of time by having another staff member work with the Applicant when she would otherwise be working alone. That additional employee was tasked with the job duties the Application was unable to perform. The Respondent later determined that it was no longer in the position to provide the additional employee.

The Applicant argued the Respondent should accommodate her by allowing her to work alone and turn customers away if the customer wished to see or purchase items that would require the Applicant to go outside her physical restrictions.

The Tribunal held that the duty to accommodate does not require the employer to provide such an accommodation. Although the duty to accommodate may require the employer to arrange the workplace in a way that enables an employee to perform the essential duties of the position, it does not require the employer to permanently change the essential duties of the position or permanently assign those duties to positions of other employees.

In this case, the Tribunal found that the accommodation requested would exempt the employee from meeting the essential duties of the position. It is important for employers note, however, that a key aspect of this decision was the determination of what is an essential duty of the position. The Tribunal will often require evidence of what is or is not an essential duty. As a result, employers should ensure that they have carefully considered the job duties and which duties are essential to the position when engaged in the accommodation process.

At the 2015 Ontario employment law conference, employment lawyer Allison Taylor will provide you with an in depth look at the latest legal developments pertaining to the duty to accommodate.  The session includes tips on:

  • The latest on accommodating mental health disabilities
  • The risk of failing to accommodate hidden disabilities
  • Obligations v choices in family status accommodation

This blog was originally posted on First Reference Talks.