Employers, Pay Attention: Google Searches Will Not Replace Tailored Accommodation
Monday, April 11, 2016 - Filed in: Human Rights Cases
Recently, the Human Rights Tribunal of Ontario (HRTO or the tribunal) released a decision wherein the employer failed to meet its duty to accommodate an employee diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).
The respondent, Method Integration Inc., (Method) hired the applicant, Ronen Gaisiner, as a Customization Solutions Specialist in December, 2011. In March, 2012, Gaisiner was terminated. Gaisiner alleged that Method discriminated against him because of his ADHD and failed to fulfill its duty to accommodate, contrary to the Human Rights Code (the Code). Method denied that it breached the Code. It argued that it terminated Gaisiner because he did not have the technical ability to perform the duties of his job and that it provided reasonable accommodations for his disability; any further accommodations would have caused the company undue hardship.
Prima Facie Case of Discrimination
The tribunal held that Gaisiner established a prima facie case of discrimination because Method terminated him without giving due consideration to the extent to which his ADHD was contributing to his performance issues. Additionally, the tribunal that Method did not give proper consideration to what accommodations could be provided for his ADHD. The HRTO acknowledged that Gaisiner's technical and troubleshooting skills were lacking; however, in examining the performance-related issues, the tribunal concluded that many of them related to a lack of attention to detail, difficulties maintaining focus and problems remembering things, all of which were "classic symptoms of ADHD".
Duty to Accommodate
This HRTO decision again emphasized that in Ontario there is both a procedural and substantive component to the duty to accommodate. A breach of either component can be found to be a violation of the Code.
The HRTO held that Method failed to fulfill the procedural component of the duty to accommodate because it did not individualize its approach to Gaisiner's needs. The HRTO emphasized the importance of an individual assessment of an employee's needs, especially in light of a complex condition like ADHD. After Gaisiner informed Method of his condition, the manager conducted a "Google search" to learn more about ADHD and coping mechanisms. The tribunal held that an internet search was not sufficient for three reasons;
- internet searches will only yield general information, not individualized results;
- the information can be misleading or wrong; and
- the information may be biased.
Method failed to fulfill its substantive obligation because it never specifically made inquiry with Gaisiner's doctor about his ADHD needs. Instead, Method relied upon after-acquired evidence from Gaisiner's doctor to support its claim that it satisfied the substantive component of its duty to accommodate. Gaisiner had informed his manager that he started to take medication for his ADHD and in the eyes of the HRTO that was the time when Method should have reached out to Gaisiner's doctor for more information about Gaisiner's condition. Had the company made proper inquiry it would have been in a better position to assess whether it could accommodate Gaisiner, without undue hardship.
The HRTO made clear that the most relevant factor in its assessment of undue hardship is cost to the employer. Since Method never considered what accommodations would be required to accommodate Gaisiner's ADHD, it was not able to advance a reasonable argument to demonstrate that such a cost would have amounted to undue hardship.
Damages & Remedy
Since Gaisiner was likely temporarily unable to perform the essential duties of his position until June or July 2012, the HRTO rejected Gaisiner's claim for lost wages, vacation pay and benefits. The tribunal did, however, award Gaisiner $10,000 (plus pre-judgment interest) as monetary compensation for damages for injury to his dignity, feelings and self-respect.
The HRTO also granted Gaisiner's public interest remedy and ordered Method to hire an expert in human rights to audit and address any gaps in its human rights procedures. Specifically, Method was ordered to develop a comprehensive human rights policy which includes provisions relating to the accommodations of disabilities to promote future compliance with the Code.
Employers have a positive obligation to inquire into the nature of an employee's disability-related needs once it becomes aware of them. These inquiries should always be made prior to terminating an employee.
Moreover, where the employer fails to turn its mind to individualized considerations of an employee's disability-related needs, it will often be left with insufficient evidence to make out a Code related defence. A generic internet search will, generally, not yield appropriate tailored considerations for your employee. While each case will be decided on its facts, a high cost accommodation can be a strong piece of evidence demonstrating undue hardship.
Note: This a reprint of an article by Khalfan Khalfan of Stikeman Elliott LLP.