Modification of the work and the workplace found not to be enough in meeting the duty to accommodate a disability.
When the Thunder Bay Catholic District School Board refused to pay for a digital hearing aid for a severely hearing impaired teacher, the Ontario English Catholic Teachers’ Association grieved the denial, arguing that the Board had failed in its duty “to accommodate a disability under the Ontario Human Rights Code” R.S.O. 1990, c. H.19.
The Board described the numerous ways in which it had met its obligation to modify the workplace, the type of work, and the way the work was performed, including the construction of a soundproof work room, one-on-one teaching duties, and the provision of a specialized telephone and a directional microphone system.
However, the teacher’s evidence was that, notwithstanding these many other accommodations, she could not function in the workplace without the digital hearing aid, and so at issue was whether the Board’s duty to accommodate her disability extended to providing her with a ‘personal bodily assistive device’.
The Arbitrator considered the principle that an employer does not have to provide the employee with the ideal, or even their preferred accommodation. They may elect such reasonable accommodations as will allow an employee to function in the workplace.
Although the Board submitted that it was satisfied with the teacher’s competency, the Association pointed to the Ontario College of Teachers’ “Standards of Practice for the Teaching Profession” which includes the requirement that teachers “communicate effectively with pupils, parents and colleagues”. An ability to communicate effectively was therefore found to be a workplace standard, and one which this teacher needed a digital hearing aid to meet.
The Arbitrator commented that with access to ever-advancing technological improvements it was time to dispense with the “bright line” which had previously been drawn between the physical workplace environment and the “boundary of the human body”. He found that the Human Rights Code demands, and the Supreme Court of Canada has endorsed, an open-ended search for all available means of accommodation.
With other examples of ‘personal bodily assistive devices’ including things like eye glasses, prosthetics, and wheel chairs, the Board understandably raised an “opening of the floodgates” argument. However, the Arbitrator disagreed that this was a serious risk, noting the multiple requirements which must be met, including that the need must arise from a workplace standard, could not be reasonably addressed by other means, and could be provided without undue hardship to the employer.
The Board also argued that it was available to the teachers association to negotiate for an extension of their benefits coverage to include things like digital hearing aids through the collective bargaining process. However, the Arbitrator held that the fact that they had not done so did not protect the Board from a discriminatory policy.
Arbitrator Luborsky acknowledged that an individually fitted device like a hearing aid essentially becomes the employee’s property, for use at work as well as for the hours that they are not on the job, conferring some personal benefit to the employee. The parties were therefore directed to determine the proportionate amount of time the teacher would be using the device on the job, and the Board ordered to pay that share of the purchase and maintenance costs.
Whether paying for 100%, or the suggested 17.5%, of a $2,200.00 device, the Board was not in a position to argue that the expense constituted an undue hardship. Rather, their submissions reflected that their greater concern was for the broader financial implications of a decision which dismissed the Board’s good faith history with this employee, the potential for a remedy through collective bargaining, and an obligation to contribute to a personally fitted device, the predominant use of which would be on personal time.
It will be interesting to see whether subsequent decisions bear out the Arbitrator’s confidence that in making the leap from requiring an employer to modify the workplace to essentially modifying the worker, a cautious rather than a liberal jurisprudence will emerge. Given that employers may elect to accommodate a disability with any means reasonable, we may also watch for a decision in which an employer asserts its right to meet its obligation by providing a personal bodily assistive device, contrary to an employee’s expressed preference.
