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Employers’ Duty to Accommodate does not Include Turning Away Customers

By now we all know that an employer in Ontario has a duty to accommodate an employee with a disability, so long as the accommodation does not cause the employer to face undue hardship.  The difficult question for employers is just what constitutes undue hardship?

This question was recently addressed by the Human Rights Tribunal of Ontario in Pourasadi v. Bentley Leathers Inc., 2015 HRTO 138 (CanLII) where the Tribunal ruled that the limits of accommodation do not extend to turning away customers.

The Applicant was the Store Manager at the Respondent’s shop where merchandise including purses, backpacks, briefcases and luggage of various sizes were sold. The Applicant often worked alone and approximately two-thirds of her position’s duties involved assisting customers with the merchandise.

That Applicant had been employed with the Respondent for three years when she injured her right wrist while unpacking a box. The injury rendered the Applicant permanently incapable of performing some of the essential duties of her position.

Initially, the Respondent accommodated the Applicant by scheduling a second employee during times when she would normally work alone to perform duties that the Applicant was physically incapable of performing.

Sometime later, the Respondent determined that it was no longer in a position to provide the accommodation of scheduling an additional employee for 25 hours per week. With no other accommodation options available, the Applicant was terminated. In response, the Applicant brought a Human Rights Application alleging that the Respondent failed to accommodate her and that her termination was discriminatory on the basis of her disability.

The Applicant initially argued the Respondent should have continued to schedule a second employee in order to accommodate her, but conceded at the outset of the preliminary hearing that the Code does not require the Respondent to do so. Instead, the Applicant focused her argument on whether the Respondent should have accommodated her by allowing her to work alone and turn customers away if the customer wished to see or purchase items that would require the Applicant to go outside her physical restrictions. The customers would be required to return to the store at a time when other staff would be able to assist the customer. According to the Applicant, the circumstances where she would be unable to help a customer would be infrequent or "extremely rare" and that any hardship to the Respondent would be minimal.

The Tribunal disagreed with the Applicant, finding instead that denying service to customers created a change to her essential sales-related duties and constituted undue hardship to the Respondent. In dismissing this portion of the Application, the Tribunal held the following:

28     As the Tribunal has held in many cases, the duty to accommodate may require arranging an employee's workplace in a way that enables the employee to perform the essential duties of his or her work. However, it does not require permanently changing the essential duties of a position...

32     The "accommodations" sought by the applicant would not enable her to meet the essential duties of the Store Manager position. Instead, the accommodations sought by the applicant would exempt her from meeting the essential duties of the position. …the duty to accommodate does not require exempting an employee from the essential duties of her position. For this reason, in my view, the Code's duty to accommodate does not require the respondent to permit the applicant to tell customers to go away and come back later when another person could assist them with their purchases.

Employers should note that the Tribunal’s ruling was based on its finding that the Applicant’s sales duties were essential to her position. When faced with an accommodation-related challenge, employers should carefully consider what the essential duties of an employee’s position are before undertaking to accommodate the employee.

The lawyers at CCPartners have experience with all aspects of workplace accommodation. Click here for a list of lawyers from the CCPartners team that can assist you with all your Human Rights issues, including those related to accommodation.

The Tribunal has scheduled a case management conference with the parties to determine the next steps in this case. CCPartners will keep you posted as this case progresses.