Employer failed to accommodate applicant who had lost finger in prior job

Published on October 30, 2007 by Donna Seale

I just finished reading a case decided by the Canadian Human Rights Tribunal earlier this year which deals with a real life situation that illustrates many of the points I was discussing in previous posts (here and here).

Knight v. Societe de transport de l’Outaouais examines how a public transit authority in Quebec ("the respondent") dealt with Mr. Knight, a person who applied for the position of service attendant with the transit authority and who also happened to have lost his right index finger in a job-related accident while working for another company. This accident occurred in 1998 and, at that time, Mr. Knight was assessed by a medical doctor as having permanent functional limitations in the use of his right hand. Between 1998 and 2004, Mr. Knight received income replacement indemnities under Quebec’s workers’ compensation legislation, had a career plan developed and was provided with various retraining opportunities. He obtained diplomas in mechanical engineering technology and heavy highway vehicle mechanics. He subsequently completed two on-the-job training sessions in heavy highway vehicle mechanics with the respondent, which he completed with success. In 2004, Mr. Knight applied for a job as a service attendant with the respondent. The service attendant position entailed, among other things, ensuring buses in operation were inspected, serviced, refuelled and cleaned on a daily basis.

Mr. Knight was hired on a part-time basis in the service attendant position. He was then asked to submit to a medical exam by the respondent’s physician. When the respondent’s doctor saw Mr. Knight, he noticed that the index finger of his right hand had been amputated. He learned that this amputation occurred in a prior job-related accident and so advised Mr. Knight that his hiring would have to be put on hold until a review of the workers’ compensation file could be conducted. The workers’ compensation file was obtained and, after reviewing it, the respondent’s head of human resources sent a letter to its physician asking him to determine Mr. Knight’s ability to perform the job as a service attendant. The doctor was provided the file along with the service attendant’s job description. After reviewing the file and job description, the respondent doctor determined that Mr. Knight could not meet the requirements of the job he had applied for. After receiving this information from its doctor, the respondent brought together a committee comprised of human resource representatives and two managerial employees from the division that the service attendant position operated under. This committee determined that it was not possible for the respondent to accommodate Mr. Knight as it would result in undue hardship. Mr. Knight was informed of this decision.

Subsequently, Mr. Knight went back to the doctor who had originally assessed him after his workplace injury and asked that doctor to assess him again. This doctor determined that the state of Mr. Knight’s hand had improved since his 1998 assessment, so much so that he no longer had any functional limitations. Mr. Knight brought this new assessment to the respondent’s attention. The respondent contacted Quebec’s workers’ compensation board to determine if it would change its 1998 finding that Mr. Knight had permanent functional limitations, but it refused. The respondent, considering it was bound by the board’s decision, concluded that it still could not hire Mr. Knight and they informed him of this. Mr. Knight filed a complaint of discrimination on the basis of disability.

Decision of the Canadian Human Rights Tribunal

The adjudicator determined that the respondent had adopted a workplace standard for the service attendant position which mandated that persons applying for the job had to be able to carry out all of the duties of the position safely and without risk. But, the adjudicator concluded that the respondent failed to show that this rule, as is, was reasonably necessary to accomplish its safety objective . In other words, the respondent did not establish that it was impossible to accommodate the complainant without imposing undue hardship. In reaching this conclusion, the adjudicator made the following findings:

the respondent did not incorporate accommodation into its standard to determine if there were different ways to perform the service attendant job while still accomplishing the safety objective;
the adjudicator pointed out that there was nothing in the evidence indicating that Mr. Knight had ever been individually assessed to determine whether he was able to do the service attendant job with or without modifications. The respondent’s doctor made the determination that Mr. Knight could not perform the service attendant job based solely on a review of the workers’ compensation board file (which contained a medical assessment of Mr. Knight conducted 6 years previous) and a list of the job duties. There was also no evidence to show that conducting an individual assessment of Mr. Knight would be an undue hardship on the respondent. In fact, the adjudicator pointed out that the respondent concluded it was not necessary to assess Mr. Knight’s individual ability to do the job because of the previous determination by the workers’ compensation board that Mr. Knight was functionally impaired. The respondent felt this prior assessment meant Mr. Knight could never perform the service attendant duties safely. The adjudicator stated that the mere opinion of an employer is not sufficient to prove undue hardship;
the respondent erred in relying on the workers’ compensation board determination in 1998 (and the board’s subsequent refusal to change that determination) that Mr. Knight was permanently impaired. The adjudicator noted:

"…the respondent did not show why or how it was bound by the [workers' compensation board] findings at the hiring stage, especially when these findings were based on medical information that was no longer current. The respondent had the burden of establishing how the failure to respect these findings would amount to ‘undue hardship’."

4. the respondent failed to fully investigate all possible accommodation options to the point of undue hardship:

a. the accommodation committee only conducted a summary review of just two other positions in its organization to see if Mr. Knight could perform those jobs;

b. a third possible position for Mr. Knight was excluded based, in part, on the impact to the morale of other employees but there was no evidence of this. Moreover, the adjudicator pointed out that the issue of morale has to be addressed carefully by an employer so as not to give too little weight to the importance of accommodation;

c. a fourth position, that of a bus driver, was eliminated by the committee without any consideration. This was so even though in the career plan developed by the workers’ compensation board when Mr. Knight was first injured, they had proposed bus driving as a possible job. The respondent excluded considering this position because they had received a report relating to another driver who had injured his thumb on the job and the report noted that that driver would have significant difficulties driving;

d. a fifth position, which would have required modification to the rules of the collective agreement, was set aside because of that. (I note here that it did not appear from what was set out in the case that there were union representatives on the accommodation committee or that the union had ever been approached about accommodating Mr. Knight);

e. there was no evidence brought forward to show that Mr. Knight would require a substantial reorganization of the duties of the service attendant position which would have caused undue hardship on the respondent.

At the end of the day, the adjudicator concluded that Mr. Knight had been discriminated against by the respondent on the basis of disability and that the further failed to accommodate him to the point of undue hardship. The respondent was ultimately ordered to:

integrate Mr. Knight into an on-call service attendant position. It was also suggested that the respondent proceed to independently assess Mr. Knight’s abilities to do the job and determine whether he required any accommodation;
pay to Mr. Knight $21,000 for loss of salary for failing to hire him;
pay to Mr. Knight $2,000 in general damages for pain and suffering.

Lessons for employers to take from the case

Ensure you proactively build accommodation into your workplace rules and standards (as I noted yesterday);
Ensure you give due consideration to accommodating job applicants. This includes conducting individualized testing to determine their actual abilities to do the job they’ve applied for. Never operate on assumption. Actually speak to the job applicant in question. Get their input on whether they can do the job or not. Respecting the dignity of the person who might require accommodation is an essential component of the duty to accommodate;
When responding to a request for accommodation or determining whether you need to provide accommodation in a given circumstance, make sure you actively explore all possible accommodation solutions. Involve the union, if necessary. Having an established process to follow in relation to every request for accommodation is very helpful;
Do not rely on determinations made by other organizations/entities (this could include, like in this case, workers’ compensation boards or, in other instances, insurance companies). An employer’s duty to accommodate is independent of any obligations or relationships an employer might have under other legislation.