'Employers fall into a lot of those traps, where they make assumptions around the disability': lawyers explain how accommodations can be more harmful than helpful
When does a workplace accommodation cross the line into discrimination?
A recent British Columbia Human Rights Tribunal decision serves as a stark warning for employers against making assumptions about employees based on identity rather than assessing their specific needs and abilities.
In the decision Pigeau v. School District No. 82, the tribunal found that the school district reassigned the employee, a teacher with dyslexia, to an Indigenous Language and Culture teaching position as an accommodation for her learning disability. However, she objected to the reassignment, stating that it was not a reasonable accommodation since she was not a member of the local Indigenous nation which would be the focus of the course, nor did she speak the language required for the role.
The position was offered as an alternative to earlier, unsuccessful accommodations to help her submit report cards, a necessary part of her role as a grade-five school teacher.
Lai-King Hum, founder of Hum Law in Toronto, emphasizes that a proper accommodation must allow the employee to remain in their role with necessary adjustments—not force them into a different job.
“When you're asking for accommodation, it's accommodation to do your job. It's not to give you an entirely different job, and what they did was give her an entirely different job.”
In Pigeau, the employer did not fully explore or refine accommodations before pushing the employee into a different role. Hum notes that this was a major flaw in their approach: “Instead of saying, ‘Here’s a solution, what do you think?’ it was, ‘Here’s the solution, you’ll take it, or you go back to your other job without any accommodation.’”
This fundamental failure to engage with the employee’s actual needs is precisely what led to the tribunal’s decision to let the case proceed, says Hum.
The tribunal agreed, highlighting the school district’s approach, which was essentially an ultimatum, stating in its offer: “Should you forgo this offer of accommodation, the [School District] assumes you are essentially committed to continue with your current assignment without the requirement of accommodation.”
A key issue in the Pigeau case was the assumption that an Indigenous employee would be an appropriate fit for an Indigenous cultural role—despite her not belonging to the specific nation or speaking the language required.
As Andrea Raso, partner at Clark Wilson in Vancouver, explains, making assumptions about an employee’s role or capabilities based on identity is a dangerous path for any employer.
“Clearly, I think the message that should be taken from this is that an Indigenous person is not an Indigenous person is not an Indigenous person,” Raso says.
“You cannot paint any First Nations person with a broad brush.”
This reflects a broader issue in workplace accommodations, that employers sometimes impose what they believe to be reasonable solutions without fully considering an employee’s actual qualifications, comfort level, or consent.
“Employers fall into a lot of those traps, where they make assumptions around the disability, which is always a challenge to say, ‘Well, no, you are not an expert in this field. You need to rely on experts, and particularly experts who have dealt with this particular employee and really know what their limitations are.’”
Employers have a duty to accommodate, but only up to the point of undue hardship. This means that an employer must demonstrate that further accommodation would cause significant difficulty or expense.
However, Hum emphasizes that operational needs alone are not sufficient to justify denying accommodations.
“If it's a significant increase in the budget in order to accommodate, then maybe it would be undue hardship,” she says, but stresses that even budget concerns are not always considered hardship, especially for larger companies.
“Accommodation doesn't have to meet what is ideal for the employee,” she continues. “That's why I talk about it as a two-way conversation. So the parties need to talk about ‘Well, what would fulfill your accommodation needs while, at the same time, work within what we can do?’ There will be circumstances where it might not be possible at all.”
In this case, the school district argued that it could not continue accommodating the employee’s report-writing challenges, but the tribunal found there was insufficient evidence that all possible accommodations had been exhausted before making a unilateral decision to change her role.
“Appropriate accommodation is always something that employers struggle with,” says Raso.
“Accommodation is always a very thorny issue, because there's no bright line test as to when you reach the point of having appropriately accommodated, or when you reach the point of undue hardship when you can't accommodate. It really is on a case-by-case basis, and looking at all of the particular factors.”
Even after an accommodation has been implemented, employers must remain flexible and assess whether it is actually working. If an employee continues to struggle, adjustments must be made rather than resorting to discipline, says Raso.
The decision also detailed disciplinary actions taken against the employee, which she alleged were discriminatory and failed to account for her disability. The tribunal noted that she received a written warning in December 2018 concerning an aspect of her performance, despite her documented difficulties in that particular area.
When she challenged the warning, the employer pushed back, stating that she had failed to provide sufficient medical documentation.
Raso highlights that employers must be diligent in exploring all avenues of accommodation before resorting to discipline.
“There’s a difference in saying, ‘You need to get these report cards done properly,’ and saying, ‘You need to get these report cards done properly, and if you don’t, your employment is going to be terminated,’” says Raso.
“That's where employers have to be careful, and they have to say to the employee: ‘This issue is continuing. Do you need further accommodation? Like, is our accommodation not working?’ … So that's where the employer doesn't discipline. The employer goes back to the employee and says, ‘This accommodation isn't working. I think we need to revisit, and let's go back to your doctor, your healthcare provider, and find out what other kind of accommodation measures are needed.’”
Hum stresses that accommodation should always be a collaborative process.
“Accommodation is a two-way conversation. You need to figure out what form of accommodation the employee needs, and sometimes you might need a doctor's note to address it, and then the employer will offer up suggestions that meet the accommodation request.”
Both Hum and Raso provided takeaways on accommodation:
