Can an employer treat employees with different types of disabilities differently?

We all know the fundamental principles of accommodation. Employers are required to accommodate a disabled employee to the point of undue hardship. This obligation exists under the Human Rights Code and the Workplace Safety and Insurance Act, 1997 with the result that employers have to accommodate employees with workplace injuries as well as disabilities that occurred outside of work. And in unionized workplaces, we all know that the employer, the employee, and the union have to cooperate in the accommodation process.

But what happens when the employer runs out of modified or accommodated work?

This happened with FCA Canada Inc. (“FCA”), a car manufacturer (Chrysler), with a large unionized workforce. FCA had a comprehensive accommodation process, which gave preferential treatment to accommodating employees with active WSIB claims, regardless of seniority, over employees whose disabilities were not work-related.

A long-service employee, George Carter, had a non-WSIB disability and was not accommodated. He filed several applications with the Human Rights of Ontario (“HRTO”) alleging that FCA discriminated against him because of disability when it accommodated junior employees with WSIB disabilities ahead of him. He also alleged that FCA failed to consider temporary modified work for him over various periods of time.

Interestingly, FCA did not deny some of the allegations against it.

FCA said that on any given day, it had 50 to 100 disabled employees seeking accommodation and that it did not have enough modified work to distribute to everyone. It agreed that it accommodated employees with work-related disabilities ahead of those who did not have work-related disabilities, and that sometimes, it meant that junior employees were accommodated ahead of senior employees. However, it claimed that it did not do this because of the type of disability, but because of the cost window incentives created by the WSIB under its new experimental experience rating (NEER) program.

The HRTO decided that FCA treated disabled employees differently, but that the Code was not violated. It accepted FCA’s position that the differential treatment arose from the WSIB initiates rather than whether it was a WSIB disability or not. However, the HRTO also awarded $5,000 to Mr. Carter for periods that FCA did not look at giving him modified work. In awarding this amount, the Tribunal observed that it was difficult to quantify the damages because there was no evidence about what jobs the applicant might have been able to access.

Mr. Carter judicially reviewed the HRTO decision to Divisional Court. The court issued its decision in January 2019 and dismissed the judicial review. It said:

• there were more disabled employees who needed accommodation in the workplace than there were accommodated positions
• the preferential treatment between employees with active WSIB claims and those without was not discriminatory
• the monetary award was reasonable because the HRTO could not quantify the income loss given the lack of medical evidence, the employee’s medical restrictions and his seniority
• it was not appropriate to make a statement that seniority rights are irrelevant considerations in determining undue hardship. This was because the employee had not previously challenged the HRTO’s decision that the seniority system was not discriminatory

Take-aways:

• accommodation is unique to the employee(s) involved
• there can be differential treatment amongst disabled employees, however it must be based on something other than the disability; and
• the conflict between accommodation and seniority rights is left for another decision.