In the recent decision of TWU v Telus Communcitations Inc, 2014 ABCA 154, the Alberta Court of Appeal addressed the issues of when accommodation is required and whether there is a procedural duty to accommodate, in Alberta human rights legislation.

The employee was unionized and worked in a call centre. During the probationary period at the start of his employment the employee had significant performance issues. As a result of his poor performance he was terminated shortly before the end of the probationary period.

Unbeknownst to the employer prior to termination, the employee suffered from Asperger’s Syndrome. Following his termination the employee’s union filed a grievance claiming that the employee’s termination was discriminatory. The matter went to arbitration.

The Arbitrator who heard the grievance concluded that the employee’s disability did play a role in his termination, but that the employer could not have discriminated against him because they were not aware of his disability during his employment.

The union applied for judicial review of the arbitrator’s decision. The Alberta Divisional Court concluded that the Arbitrator had correctly identified the legal principle and reached a reasonable factual conclusion. The union then appealed the Divisional Court’s decision to the Alberta Court of Appeal. The Court of Appeal dismissed the union’s appeal, but in doing so made two important statements about the law regarding discrimination.

First, the Alberta Court of Appeal held that it is not necessary for an employer to be aware of an employee’s disability in order to discriminate against an employee. In cases of “adverse-effect discrimination”, the court held that a policy such as a probationary period that is seemingly neutral may still be discriminatory if the effects of the policy are discriminatory, regardless of whether the employer is aware of those discriminatory effects. Applying such reasoning, the Alberta Court of Appeal concluded that Telus had discriminated against the employee.

Second, the Alberta Court of Appeal upheld a finding of the Federal Court (since affirmed by the Federal Court of Appeal, as discussed in this earlier post) that there is no procedural right to accommodation independent from the substantive duty to accommodate. As a result, the conclusion reached by the Arbitrator that no accommodation was possible in the circumstances was enough for the Court to conclude that the duty to accommodate was satisfied on the facts. [Note that a procedural duty to accomodate has been found to exist by the Ontario Human Rights Tribunal interpreting the Ontario Human Rights Code. As such, this part of the analysis would likely not apply in that jurisdictional context.]

This decision presents a different take on when the duty to accommodte is triggered. In many cases adjudicators have found it necessary for the employee in need of accommodation to request it before a duty to accommodate arises. In this decision the Alberta Court of Appeal highlights a circumstances where conscious knowledge of disability may not be necessary before the duty is triggered – namely where an existing policy has an adverse effect resulting in discrimination. This is not a new concept, but illustrates how the duty to accommodate may well arise even where there is not express knowledge of a disability or accommodation need, where a policy in general has an advserse discriminatory effect in its application.  an important reminder to employers about the extent of their duty to accommodate.

In light of this, employers must be cognizant of any potential adverse effects that their policies and practices may have if applied to persons who may be in need of accommodation (whether or not such accommodation needs are known). If such policies or practices have discriminatory effects, employers could be expected to accommodate affected employees regardless of whether the employer was even aware of a specific disability of an individual employee.

While this is an Alberta decision, this analysis could get even more complicated if applied in a jurisdiction like Ontario where a procedural duty to accommodate has been found. This could, taken to its logical conclusion, necessitate employers to show what steps have been taken to ensure that their policies and procedures do not adversely discriminate against employees, whether or not accommodation needs are specifically known.  What evidence would be required to satisfy such an obligation? Surely it would be less onerous than the procedural duties applicable to specific individuals that have raised accommodation needs? At the least, it would necessitate some consideration of the human rights impacts of employer policies. Such considerations would be advisable in any event, and have been since the Meiorin decision. As such, while this case out of Alberta is not a paradigm shift, it is at least reiteration of the risks of adverse impacts on human rights, which can arise even where individual implications are not clearly known.

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