In a recent decision, Coast Mountain Bus Company, the British Columbia Court of Appeal upheld a decision by the Human Rights Tribunal, which concluded that the company’s attendance management program resulted in systemic discrimination against employees with chronic and recurring disabilities, and that the program was not exempted as a bona fide occupational requirement. The employer successfully filed an application for judicial review in the British Columbia Supreme Court. The Court of Appeal set aside that decision.
The attendance management program at Coast Mountain was a multi-level program beginning with the identification of employees with high absenteeism and ending with the potential termination of the employee. Employees were placed in the program if they had absence rates consistently higher than the average absence rate of the other employees. One of the levels included a medical assessment from the employee to determine his or her ability to attend work on a regular basis and to ascertain whether the employee had a medical disability. Inquiries of the employees and doctor about the accommodation were only made if the employee was unable to return to work, and did not include periodic absences. The absence rate included days missed for Short-Term and Long-term Disability and Workers Compensation.
The Human Rights Tribunal had concluded that the program was prima faciediscriminatory for a number of reasons, including the use of average absenteeism rates for employees, and the inclusion in the employees’ attendance records of partial day absences when they were on a gradual return to work program. The Tribunal concluded that Coast Mountain failed to establish that it was not possible to further accommodate employees with chronic or recurring disabilities short of undue hardship. The Tribunal reasoned that the employer treated employees with chronic or recurring disabilities as “attendance problems.” It imposed a standard, average attendance, which the employees were unable to meet. As well, while the employer introduced evidence of the substantial cost of employee absenteeism, it did not provide any evidence by which the cost related specifically to employees with chronic or recurrent disabilities could be assessed.
The basic approach for determining whether a prima facie case of systemic discrimination has been established, is the same as in cases of individual discrimination, and poses the following questions:
1. Does the employee have (or is perceived to have) a disability?
2. Did the employee receive adverse treatment?
3. Was the disability a factor in the adverse treatment?
In a case of systemic discrimination, the complainant must demonstrate that an employer’s procedure, policy or practice is discriminatory against a class of employees, sharing a protected characteristic.
The Court of Appeal but did not accept all the factual findings of the Tribunal and, it is fair to say, was critical of the sweeping language used in the decision. Nevertheless, the Court found that the Tribunal did not reach the conclusion that the mere application of the attendance management programs to employees with disabilities constituted systemic discrimination. It was the program, as applied by the employer, which resulted in discrimination. While it is not discriminatory for an employer to require employees to establish that their non-attendance at work is due to a disability, there was evidence, which could support a finding of systemic discrimination, including the use of average absenteeism rates. The Court of Appeal did not find that Level 1 and 2 of the program, which identified employees with attendance issues and sought medical information related to medical conditions, constituted prima facie discrimination. However, the placement of employees at Level 3 on the basis of absences due to disability constituted adverse treatment. Their employment was put in jeopardy for failing to meet attendance parameters set without regard to disability. Disability was a factor in the adverse treatment to the extent that absences due to disability caused employees to be placed at Level 3 and established a prima facie case.
With respect to the next step on the analysis, bona fide occupational requirement–was the discriminatory treatment justified–the Court relied on the well-established principles from the 1999 decision of the Supreme Court of Canada in Meorin:
1. Was the standard adopted for a purpose or rationally connected to the function being performed?
2. Was the standard adopted in good faith?
3. Was the standard reasonably necessary to accomplish the purpose – could the employer accommodate the employees without incurring undue hardship?
The real issue in Coast Mountain, as is quite often the case, was the third question. The employer failed to meet that standard. The court also referred to the decision in Hydro-Québec, where the Supreme Court of Canada made it clear that there are limits to the duty of accommodation. The Supreme Court of Canada stated that where an employee with chronic absenteeism is unable to resume work in the reasonably near future, despite accommodation, the employer would have established undue hardship. The employer, however, must show that it is impossible to do so without undue hardship. In the case at hand, the Tribunal did not err that the issue was whether Coast Mountain had demonstrated that it was impossible to accommodate the employees without experiencing undue hardship. The Court noted that that there was no evidence as to the cost of accommodating employees with disabilities, and that the employer advanced no other ground of undue hardship.
In conclusion the British Columbia Court of Appeal found that the chambers judge erred in setting aside the Tribunal’s decision. This case may be headed for the Supreme Court of Canada.