The recent decision from the BC Human Rights Tribunal Thanh v BC Ministry of Public Safety and Solicitor General, 2020 BCHRT 15 provides an example of how an employer can establish undue hardship and limit its duty to accommodate an employee’s disability.
The complainant was a community coroner on medical leave for PTSD which developed after investigating a particularly gruesome death. The complainant participated in a return to work program involving exposure therapy but was ultimately discharged from the program.
After being discharged from the program the complainant was then diagnosed with “Other Specified Trauma and Stressor Related Disorder” and his physician reported he should be restricted from duties involving general exposure to dead bodies in person or by multimedia, likely on a permanent basis. The Coroner’s Service informed the complainant that the restrictions prevented him from working as a community coroner, even in an accommodated capacity. They noted that they were also unable to find another available position that matched his restrictions and status as an on-call, as-needed employee.
The issue is whether the Coroner’s Service breached s.13 of the Human Rights Code and discriminated against the complainant by failing to reasonably accommodate his mental disability.
The employee successfully met the prima facie test for discrimination (he had a disability, he suffered an adverse impact in his employment, and there was a connection between his disability and the adverse impact). The onus then shifted to the Coroner’s Service to establish a reasonable justification for its conduct or decision.
The Tribunal found the standard of requiring community coroners to perform duties involving exposure to dead bodies was rationally connected to the role of a coroner and adopted in good faith. The more contentious issue was whether that standard was reasonably necessary to achieve the legitimate work purpose. Reasonable necessity is determined by whether the accommodation can be provided without imposing undue hardship on the employer.
The Coroner’s Service exists to investigate certain deaths, so modifying the role of a coroner to exempt them from both attending scenes of death and from working with images or videos of bodies would alter the very function and purpose of community coroners and any other role within the Coroner’s Service. The Tribunal accepted that undue hardship is not a threshold of impossibility and found that altering the working conditions of a coroner in such a fundamental way would impose undue hardship.
The Tribunal also noted approvingly that the Coroner’s Service had attempted to find an alternate role and could not be faulted for not having a suitable role available.
The Tribunal also dismissed allegations that the employer had failed to reasonably accommodate the employee during the medical leave by refusing access to certain meetings or requests because these were not requested based on his disability.
The Tribunal held that the Coroner’s Service could not have done anything else reasonable or practical to avoid the negative impact on the complainant and so, although accommodation was not offered to the employee, it did not amount to discrimination under the Code and the employee’s complaint was dismissed.
Where an employee with a disability requests an accommodation unrelated to restrictions or characteristics connected to the disability, an employer may be justified in refusing the request. Failure to offer accommodation may not amount to discrimination if the position cannot be modified to meet the restriction without fundamentally changing the nature or purpose of the role.
This update was co-authored by Scott Marcinkow and summer student, Meg Monteith. Looking for more information regarding similar issues? Contact Scott at firstname.lastname@example.org or anyone else listed on the authors page.