Posts Tagged ‘Duty to Accommodate’

Education: Failure to Accommodate Students with Disabilities & Inappropriate Parental Conduct

Posted: October 19, 2013 in Disability, Duty to Accommodate, Education, Family Status
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In August, 2013 the Tribunal released a key decision setting out the appropriate test for discrimination in education.[i] R.B., a 9 year old child, was provisionally diagnosed with an intellectual disability, Pervasive Developmental Delay, and Attention Deficit Hyperactivity Disorder. R.B. had a history of aggression and behavioural problems in the classroom. At issue in this case was a decision taken by the School Board to reduce R.B.’s educational assistant support from full-time to half-time, and significant and prolonged tension and conflict between R.B.’s mother, S.F., and the School Board, which resulted in the School Board banning S.F. from attending or communicating directly with the School.

Jurisdiction: Education is a Service under the Code

The Tribunal has jurisdiction to assess discrimination in education cases as education has been found to be a service under the Code. Section 1 of the Code prohibits discrimination in services. Schools are required to accommodate students with disabilities. Communication between the School and parents is integral as a part of an education for a student with high-needs. Schools should implement measures, short of undue hardship, to ensure that students with disabilities are permitted access to educational services which mirror, as closely as possible, educational services provided to all students in Ontario.

Discrimination in Education: The Two-Part Test

This decision was the Tribunal’s first to apply the test recently set out by the Supreme Court of Canada for discrimination in education cases.[ii] The Tribunal applied the following two-part test:

  1. The Applicant must establish that he or she was denied meaningful access to the educational service provided to all students in Ontario because of a disability. If the Applicant succeeds in this first step the Applicant has established a prima facie case of discrimination.                                                                                                                                                                                                                  .
  2. Once the Applicant has established a prima facie case, the burden then shifts to the Respondent to establish that it was incapable of fulfilling the right, or that the rule that adversely affected the Applicant was reasonable and bona fide (in this step the Respondent must demonstrate that it was unable to accommodate the student’s needs to the point of undue hardship).

Inappropriate Parental Conduct

There was a significant history of tension and conflict between the student’s mother, S.F., and the School Board. There was police involvement, an audio recording device that was sent to school on R.B., direct involvement of the Director of Education, and ultimately the implementation by the School Board of a communication ban and trespass notice banning S.F. from attending or communicating with the School.

The School Board argued that S.F.’s aggressive and inappropriate conduct interfered with the Board’s ability to accommodate R.B. The Tribunal found that S.F. acted “inappropriately at times” and was a “difficult parent to communicate with”, however the School Board failed to establish that her conduct prevented it from accommodating R.B.’s needs and providing him with meaningful access to education. The Tribunal stated:

…the Respondent could have dealt with S.F.’s behaviours directly by meeting with her to inform her that [her behaviour] made it difficult for the Respondent to work with her in his interests. Instead, the Respondent punished R.B. because of the conduct of his mother.

While the Tribunal did not find that S.F. interfered with the School’s ability to accommodate R.B. in this decision, it recognized that parental conduct can interfere in other scenarios, stating:

There may well be examples of parental conduct that prevents the accommodation process from occurring. For example, if a parent refuses to provide relevant information concerning a child’s disability, refuses to acknowledge the child needs accommodation, and refuses to consent to an assessment of the child, that conduct may interfere with the accommodation process and prevent a school from meeting that child’s needs.

Remedy: Significant General Damage Award ($35,000.00)

In determining that the School Board had discriminated against R.B., Vice-Chair Jennifer Scott ordered the School Board to pay $35,000.00 in general damages in compensation for “injury to R.B.’s dignity, feelings and self-respect”. Vice-Chair Scott further ordered that R.B. return to school with a full-time educational assistant, speech and language support for 30 minutes per week and an appropriate behaviour management plan that S.F. has agreed to. The Tribunal also lifted the trespass notice preventing S.F. from attending the school and ordered that she be entitled to fully participate in the development of R.B.’s Individualized Education Plan. Recognizing that the relationship between S.F. and he School Board had been “severely compromised”, Vice-Chair Scott wisely ordered the School Board to retain a third-party mediator to deal with any issues or difficulties going forward.

Conclusion

Schools have an obligation to accommodate students with disabilities. This is a landmark decision that is first by the Tribunal to apply the recently articulated test for discrimination in education. The goal is to provide students with disabilities with the same access to educational services as those offered to all students in Ontario. Parental conduct will not justify a failure to accommodate a student where parental conduct does not interfere with the School’s ability to accommodate. Schools should take care not to refuse to accommodate a student because of a difficult parent. Aside from being inadequate to justify a failure to accommodate, it may also constitute an independent violation of the Code on the basis of family status.

[i] R.B. by his next friend S.F. v. Keewatin-Patricia District School Board, 2013 HRTO 1436

[ii] Moore v. British Columbia (Education), 2012 SCC 61

Generous Payments are NOT a Substitute for the Duty to Accommodate

Posted: September 29, 2013 in Disability, Duty to Accommodate, Human Rights Tribunal of Ontario
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3d man with dollar symbol.George Berger, an executive assistant to a Toronto City Councillor, brought an application to the Tribunal against the City of Toronto alleging that Councillor Frances Nunziata discriminated against him on the basis of his disability.[i] Berger suffered from adjustment mood disorder and multiple osteochondromatosis (a condition that involves arthritis in the fingers).

Berger commenced a leave of absence for medical reasons relating to his mental disability, which he claimed was related to a poisonous work environment caused by the alleged harassment. Berger requested the opportunity to work for another City Councillor when he returned to work. The City of Toronto argued that it was difficult to transfer executive assistants because City Councillors typically choose their own assistant. The City decided to pay Berger the remainder of his two year contract – approximately 6 months wages.

The Tribunal found that the allegations against Nunziata were not connected to a Code ground and therefore not within the Tribunal’s jurisdiction, however the City failed in its duty to accommodate Berger when presented with a request to be moved to a different City Councillor. The City decided not to explore whether it could accommodate the Applicant’s request, but rather decided to ‘buy out’ his employment. Vice-Chair Kaye Joachim stated:

[The City] failed to take adequate steps to canvass its organization for alternative comparable vacant positions in which to accommodate the applicant. Rather, it chose to resolve the situation by paying out the applicant’s contract.

The corporate respondent argued that the payment of wages on the remaining contract was a form of accommodation. I disagree. The applicant was denied the right to engage in meaningful work for the remainder of his contract. He was also denied the opportunity to seek renewal of the contract in whatever position he was in in November 2006.

In these circumstances, the applicant was essentially “forced” to seek a settlement.

Some will see six months’ pay for a one and a half year employee as reasonable – even generous. The duty to accommodate however required that the City explore accommodating Berger in an alternative position. The procedural component of the duty to accommodate requires employers to undergo a process – the City of Toronto failed to do so in this case. Forced settlements, even with generous sums of money, are not a substitute to the duty to accommodate.

Does this mean that the City of Toronto automatically had to explore placing Berger in an alternative position simply because he provided a medical note?

Not necessarily. The City could have questioned the medical evidence and insisted upon clarification. Medical doctors are not able to dictate accommodation, but rather their role is to provide evidence concerning their patient’s functional abilities and limitations. The City could have challenged the doctor’s conclusions,  but as Vice-Chair Joachim stated – “it was not open to it to do nothing”.

[i] Berger v. Toronto (City), 2011 HRTO 625

What Questions Can an Employer Ask an Employee with a Disability?

Posted: July 21, 2013 in Disability
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Employees within Ontario have the right to be treated equally in employment, without discrimination, on the basis of a number of grounds which are set out in section 5 of the Ontario Human Rights:

• Race;
• Ancestry;
• Place of origin;
• Colour;
• Ethnic origin;
• Citizenship;
• Creed;
• Sexual orientation;
• Gender Identity;
• Gender expression;
• Age;
• Record of offences;
• Marital Status;
• Family Status, and
• Disability.

This article deals specifically with the ground of disability. The duty to accommodate is triggered for employers when the employer knows or ought reasonably to know that the employee had a disability.

It is discriminatory to use the application process to screen prospective employees on the basis of disability. In this respect, employers are not permitted to ask questions that reveal information about a Code ground. For example, an employer cannot ask a prospective employee if he or she has a driver’s license if a driver’s license is not an essential element of the job description. Even where a driver’s license is an essential element of the job description for which the employee is interviewing, the employer cannot ask to view the driver’s license or photocopy it. To do so would give the employer information about the employee’s age for example, a protected Code ground. Instead employers should include a statement on the application that a driver’s license is required for an essential element of the position and successful applicants will need to prove they possess a driver’s license.

Upon learning that an employee has a disability, employers have a duty to accommodate short of undue hardship. The duty to accommodate is a two-way street. Employees have an obligation to provide employers with information necessary to determine appropriate accommodation. In some cases, employees will provide their employer with a medical note stating a generic line such as “For medical reasons, Joe can no longer perform his duties as labourer and should instead be moved to the position of reception for a period of two months”. The Tribunal has stated on a number of previous occasions that generic statements are insufficient. It is not the role of a doctor to identify the specific job an employee can perform. Rather, the doctor’s role is to identify the patient’s physical or mental restrictions or the specific disability related accommodated required. The employer should use that information to determine whether and how it can accommodate the individual in the specific workplace in question. The obligation is on the employer to accommodate to the point of undue hardship. When the employer receives a generic medical note, they may request additional information from the employee. Determining the appropriate questions however is the challenge.

The Human Rights Tribunal of Ontario (“HRTO”) has made it clear that employees are expected to waive some privacy in order to open an accommodation dialogue. Generally, employers do not have the right to ask what the diagnosis is, but rather may seek information about the employee’s functional limitations in order to determine how those limitations can be accommodated in the specific workplace. In 2009, the HRTO clarified the information employers are entitled to, stating:

For the purposes of a request for employment accommodation, generally the focus should be on the functional limitations of the employee’s condition (capacities and symptoms) and how those functional aspects interact with the workplace duties and environment. Consequently, an employer need not be informed of the specific cause of the employee’s condition or the exact diagnosis in order to be put on notice that an employee has disability-related needs requiring accommodation…

In order to trigger a duty to accommodation, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation…

The Tribunal has found that employees have failed to establish a prima facie case of discrimination in cases where employees fail to provide necessary information to employers. There is often a fine line between inappropriate and appropriate requests for medical information. Be safe and consult a lawyer practicing in human rights law prior to refusing to provide medical information.

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