Consideration of extent of employer's accommodation efforts needed: tribunal
The Alberta Human Rights Tribunal has overturned a decision dismissing a worker’s discrimination complaint for lack of merit, finding that the issue of whether the worker was accommodated in new office space required more consideration.
The worker was employed with the Alberta Department of Community and Social Services. In June 2015, she went on disability leave due to symptoms such as hypotension, confusion, and weakness.
While the worker was on disability leave, she was diagnosed with a medical condition that manifested in the symptoms that she had been experiencing.
Eventually, the worker was medically cleared to return to work and she requested accommodations such as access to a private place to lie down if her symptoms were bad, access to a refrigerator for her box of medication, and handicapped parking. She also needed some flexibility with her hours so she could arrive later in the morning in exchange for a shorter lunch break when necessary.
The department provided the worker with office space that met her stated accommodation needs.
New office with temporary position
In March 2019, the worker was offered a higher position on a temporary basis covering for another employee on long-term disability leave. However, the department advised that the new position required that she moved to a different office that had been occupied by the previous employee.
The worker was hesitant because she didn’t want to move from her existing office where she could manage her health condition if she became unwell at work, but the department confirmed that the office for the temporary position was sufficient to accommodate her needs – providing the previous accommodation requests as well as a readily available chair if the work had to stand for more than 10 minutes and a file transport cart - and she could still have flexibility to start work between 8 and 8:30 a.m. and leave between 4 and 4:30 p.m., with a one-hour lunch break.
The worker accepted the offer for the position, which was slated to end on or about March 31, 2020.
However, less than a month into the new position, the worker had a medical incident at work that led to a co-worker calling for an ambulance. According to the worker, the incident was triggered by her new office environment. She asked for her old office back, but the department declined.
New office aggravated condition: worker
The worker said that the new office was unsuitable because it was warmer and heat could trigger her symptoms. She also said that there was foot traffic around, which didn’t meet her privacy restrictions. The department replied that if she needed different or additional accommodation, she should provide documentation from her physician to support it.
In August, the worker provided a medical note excusing her from work. She did not return.
A short time later, the worker filed a human rights complaint alleging discrimination on the grounds of physical and mental disability. She also alleged that management targeted and harassed her by being unduly critical of her job performance and scrutinizing her more than other employees. In addition, she claimed that other employees treated her differently because of her disability, and all of this treatment caused her symptoms to flare up.
A human rights officer reviewed the complaint and recommended that it be dismissed. The Director of the Human Right Commission found that the department reasonably accommodated the worker with medical leaves, refrigerated access for her medication, flexibility in working hours, and a parking spot. It also gave the worker an opportunity to provide additional medical information, but the worker didn’t do so, said the director in dismissing the complaint for having no reasonable prospect of success.
The worker filed a request for review, arguing that the director downplayed or disregarded evidence of discrimination.
Accommodation issue needs consideration
The tribunal referred to the three-part test for discrimination, noting that the evidence supported the first part of the test, that the worker had a disability.
However, the worker did not provide much evidence regarding differential treatment by management and colleagues, and the main part of her complaint was that she wasn’t accommodated sufficiently, said the tribunal.
The tribunal noted the information about the department’s accommodation efforts, including flexible work hours and the office space in accordance with her initial accommodation request. However, after she moved to the new office with the temporary position, the worker didn’t like it and requested to be moved back to her old office. The department refused, and the worker filed her complaint.
The tribunal determined that the issue of whether or not the new office met the worker’s accommodation needs was key to the complaint and needed consideration of all the evidence in a hearing. The Director’s decision was overturned and the matter was referred to the tribunal for a full hearing.