In Carter v. Chrysler Canada Inc, 2017 HRTO 168, the Human Rights Tribunal of Ontario (the “Tribunal”) considered whether it was permissible under the Ontario Human Rights Code (the “Code”) for an employer to distinguish between employees with occupational and non-occupational disabilities in its accommodation process.
The employee was working in a manufacturing facility operated by Chrysler Canada Inc. (“Chrysler”) when he suffered disabling conditions that required him to take a medical leave of absence. The conditions did not trigger a Workplace Safety and Insurance Board (“WSIB”) claim because they did not arise from his job with Chrysler. The employee provided Chrysler with information about his abilities and medical restrictions. Chrysler began to search for a “permanent” position that was available and suitable. In the interim period, the employee was forced to remain off work.
The employee took the position that Chrysler should also have considered him for temporary positions. He also believed that Chrysler would have returned him to work sooner if his disability had been work-related, as he believed that Chrysler treated employees differently if their restrictions had arisen from work-related injuries. As a result, the employee filed an application with the Tribunal alleging that Chrysler had discriminated against him on the basis of his disability.
Chrysler acknowledged that it was more likely to offer work to workers with active WSIB claims as compared to those without active WSIB claims who required accommodated work. In particular, Chrysler acknowledged that it was more likely to offer “non-standard jobs” to injured workers with active WSIB claims. Those “non-standard jobs” were jobs that arose temporarily or on an ad hoc basis. Examples included quality control or special inspection jobs to correct a production issue. On occasion, Chrysler also offered work that was not actually productive, but only to injured workers with an active WSIB claim. Chrysler explained that it distinguished between disabled employees because of the WSIB’s New Experimental Experience Rating (“NEER”) program. Under the NEER system, the amount the employer must pay can increase significantly when a worker remains off work in receipt of WSIB benefits. As a result, employers have an incentive to return employees to work at full pay following a workplace injury.
The Tribunal found that Chrysler’s differential treatment in accommodating employees with workplace injuries and those with non-workplace injuries was not discriminatory in the circumstances. The Tribunal explained that the distinction was not based on a prohibited ground, but arose from the operation of a statutory scheme. The Tribunal found that although the employee had established that the employer treated injured workers with active WSIB claims differently than other employees with medical restrictions, he had not established that this was discriminatory under the Code. However, the Tribunal emphasized that Chrysler still had an ongoing duty to accommodate the employee to the point of undue hardship, which included an obligation to consider whether temporary job opportunities were available and suitable. Since Chrysler had considered only permanent standard jobs in its search for accommodation, it violated the Code. The employee was therefore entitled to $5,000 in compensation for injury to his dignity, feelings, and self-respect.
This case is significant for employers in that it confirms that not every distinction between groups of employees constitutes unlawful discrimination.