Owner/manager’s missteps with worker’s accommodation requirements led to thousands in discrimination damages
“Accommodation is an organization-wide endeavour — in principle, an idea that accommodation has to happen but the implementation of it across the board just isn’t effective, then it doesn't actually do what it's supposed to do.”
So says Lior Samfiru, National Managing Co-Partner at Samfiru Tumarkin in Toronto, after an Ontario restaurant that told a server she would be fired if she went to a medical appointment instead of her shift was found liable for thousands of dollars in damages for discrimination. The case, Tompkins v. Peninsula Grill, is a reminder that accommodation strategies fail not in policy documents, but in the practical application at the frontline level, according to Samfiru.
For Samfiru, effective accommodation policy has to begin with the idea that anyone with people-management responsibility must be trained and aligned with the overall organizational strategy. “Everyone that has responsibility — [managers] must know if there's an obligation to accommodate, what's expected, and must be aligned with what has already been agreed to with the employee,” he says. “There can't be any miscommunication.”
Samfiru sees it as a core strategic lesson for accommodation — an organization can’t allow each manager to interpret the duty to accommodate in isolation. “You want this to be an organization that makes the decisions, not frontline people making decisions on a case-by-case basis,” he says.
Define the accommodation starting line – then stop prying
The worker in Tompkins said at her hiring that because she had cerebral palsy, she couldn’t work more than 25-to-30 hours biweekly, and that working longer shifts caused pain, numbness, and risk of falling. The tribunal determined that once the employer knew about the worker’s disability and her hour limitations, the duty to accommodate was engaged.
Samfiru stresses that HR has the right to verify what it is being told. “An organization is able to demand or ask for corroboration of a disability or a serious medical condition,” he says, adding that it should come from a medical professional, not from a manager’s gut feeling or skepticism about an employee’s motives.
But employers cross the line once they start asking questions about things beyond the need-to-know standard, he says. “They say, ‘We need you to tell us what the medical condition is, or what treatment this person is getting, or what medication are they on’ — all of which is completely irrelevant and it's also offside,” he says. “It's not really relevant if an employee needs accommodation because they have a bad back, they’re suffering from cancer, or because they have a mental health issue — what matters is, is there a medical condition that requires support and accommodation from the employer?”
Capture informal requests before they blow up
The case also shows how casual back-and-forth between a worker and an owner or frontline manager can bury real accommodation issues. Texting between the restaurant’s owner/manager and the worker led to schedule tweaks putting the worker over 30 hours on a couple of occasions, the owner/manager ignoring the worker’s complaints that the extra hours were aggravating her condition, and anger over a last-minute medical appointment turned into a firing.
For Samfiru, one problem is that too many employers rely on memory instead of records. “Anytime there's an agreement between an employer and an employee as to how the regular duties or hours are going to change, that has to be memorialized some way and somewhere so that everyone can access it,” he says.
However, employees have obligations too. “Within the HR personnel file, there has to be a record of exactly what was agreed to, but the employee also has to have an active duty in their own accommodation,” says Samfiru.
The substantive duty to accommodate
The tribunal also drew a line between the employer’s procedural duty to accommodate — asking for information and understanding limitations — and the substantive duty, which is actually putting accommodations in place.
Samfiru sees organizations get tripped up often by this distinction and the standard they have to meet. “They may ask the right questions and get the right information in order to meet the procedural duty to accommodate, but when it comes to actually implementing and creating the accommodation, that's where oftentimes employers fail,” he says. “We call this accommodation to the point of undue hardship, and what's implied in that is that some hardship has to be endured by the employer in accommodating an employee.”
He also notes that there are different accommodation expectations between large organizations and small ones. “A small employer isn’t going to have as many options and flexibility as a large employer with different departments and different roles, so it's not a one-size-fits-all approach to the duty to accommodate,” she says.
According to Samfiru, many organizations think they don’t have to follow through on an accommodation request if it’s going to them money or create administrative issues, but he stresses that isn’t the case at all. It’s been well-established in case law that the substantive duty to accommodate requires hard action to fully investigate accommodation options.
Manager’s behaviour can add to liability
In this case, the owner was also the frontline manager, and his texts and angry behaviour towards the worker in firing here were what drove the breach of the Human Rights Code and the damages award. Samfiru is clear that conduct standards for managers and supervisors are essential. “Bad conduct is always problematic and it creates legal liability,” he says, suggesting that the owner/manager’s treatment of the worker could have increased the damages if the tribunal had thought it added to the discrimination.
“In many cases, the tribunal is going to make that leap, saying ‘You treated this person badly, you were rude and aggressive, and the only thing that this person had different than others is the fact that they had this disability, so it's not a stretch to say that you were motivated by that fact,’” he says. “When you're dealing with employees that may have a medical issue or a disability, it creates all kinds of other liabilities, and it’s important for employers to provide that training for frontline managers as to expected conduct in the workplace and not to tolerate conduct that doesn't meet those standards.”
The Tribunal awarded the worker $15,000 for injury to dignity plus limited lost wages, which Samfiru believes is low for the circumstances and organizations should be prepared for higher liability for discrimination from a failure to accommodate. The tribunal is generally looking to award damages as a deterrent for discriminatory behaviour by employers, so it can easily be higher, he says, adding that HR leaders can’t rely on financial penalties alone to drive behaviour and ensuring their organizations meet the duty to accommodate.
Despite the relatively low damage award — the worker was employed at the restaurant for less than four months — Samfiru believes that HR leaders should treat Tompkins as a wake-up call. Tribunals may hand out damage awards of varying levels, but employees, unions .and the public are watching how organisations respond when someone with a disability asks for support – and whether a single manager’s text exposes that the organisation wasn’t ready to accommodate.
