Human Rights law: Does a lack of knowledge save an employer from liability?

Human rights law dictates that employers must accommodate an employee in relation to a disability to the point of “undue hardship”.

In most circumstances an employer has direct knowledge of circumstances (such as a disability) underlying a request for accommodation.  There are however circumstances in which an employer does not have direct knowledge of the facts which forms the basis for an employer’s obligation to provide accommodation.

It would be understandable if at first glance an employer concluded that they could not be held liable for discrimination relating a condition or circumstances for which they were not directly aware.  Unfortunately for employers, courts have made it clear that they can still be held liable for a violation of human rights laws even where they do not have direct knowledge of an employee’s condition.  This is because employers can be held liable for “adverse” effect discrimination.  Specifically, employers can be found liable for discrimination where a company’s actions (including its policies and procedures) are such that they are likely to have a negative impact on an individual who’s condition or circumstances attract human rights protection (such as a disability or religious affiliation).

The Alberta Court of Appeal in Telecommunications Workers Union v. Telus Communications Inc. addressed this issue in the context of an employee suffering from a disability.

The case specifically involved a new hire at Telus who suffered from Asperger’s Syndrome.  Management raised concerns regarding the employee’s performance shortly after being hired.  The employee stated to management that the issues raised were directly related to a “condition” from which he suffered.  The company proceeded to terminate the employee’s employment.  The employee’s union subsequently brought forward a grievance, claiming that the employer’s actions violated the employee’s rights under the Canadian Human Rights Act.

The Arbitrator denied the union’s grievance on the basis that Telus’ duty to accommodate was not triggered since it did not have knowledge of the employee’s condition.  The Arbitrator further found that, even had Telus’ duty to accommodate been triggered, the company’s actions met this duty as the employee’s condition would not have allowed him to carry out the fundamental components of his role.  The Arbitrator also stated that Telus was not under an obligation to find the employee another position since he was a new hire within his probationary period.

The decision was appealed at the Court of Queen’s Bench and the Court of Appeal for Alberta.

While the Court of Appeal dismissed the union’s appeal, it did hold that the Arbitrator erred in holding that knowledge of the employee’s condition was necessary to find that Telus was obligated to accommodate the employee’s disability.  Specifically, the court held that employer knowledge of the employee’s condition was not necessary to trigger a duty to accommodate.

The court elaborated by stating that “adverse-effect” discrimination can be found where circumstances exist that attract human rights protection, the individual suffers a negative impact vis-a-vis other employees, and the condition is a factor that resulted in the adverse impact.

What does this mean for employers?

The case is a helpful reminder to employers of the broad scope of the duty to accommodate under human rights legislation.  Specifically, the courts make clear that employers cannot assume that they are shielded from liability on the basis that they did not have knowledge of an employee’s condition that may require accommodation.  The case also demonstrates that company policies and procedures may be scrutinized with respect to both its direct and indirect impact on employees requiring human rights related accommodation.  It is accordingly important for employers to be vigilant to ensure that policies and procedures (including training programs) are all designed to minimize the risk that an organization is found to have structural flaws which contribute to discrimination in the workplace.