You have heard people say “less is more” – probably more times than you’d like. I’m sorry to have to do this to you again, but it really is true!
Remember the episode of The Office where Michael Scott hands over the responsibility of cutting down the benefits plan to Dwight Schrute?
Dwight figures out a “clever” solution to the problem. He tells his coworkers to write down their medical conditions so he can ensure those are covered by the benefits plan. Everything else would be slashed.
While this is quite obviously problematic, from an employment law perspective, it’s an absolute nightmare. Knowing more than is necessary can expose the employer to substantial liability.
Discrimination in the Workplace
Human rights legislation across Canada, such as the Ontario Human Rights Code and the Canadian Human Rights Act, are intended to provide for equal opportunity and prohibit discrimination based on various protected grounds including but not limited to:
- disability,
- race,
- sex,
- age, and
- religion.
In the workplace context, employers are prohibited from discriminating against employees based on any of the protected grounds, whether it occurs during the hiring or firing processes, or over the course of the employment relationship.
Discrimination is defined as adverse treatment of a person on the basis of a protected ground. In order to prove discrimination, an applicant must show that there is a connection between the negative treatment and one of the protected grounds (for example, being terminated from employment because they have a disability). Even if the protected ground is only a small part of the decision, that would be sufficient to constitute discrimination. In other words, the respondent (employer) would have to show that there was zero connection.
Employers also have a duty to accommodate an employee’s legitimate needs based on any one or more of the protected grounds, up to the point of undue hardship, which is a high threshold. For example, if an employee requests accommodation on the basis of the protected ground of disability, their employer has the right to request medical documentation supporting the employee’s need for accommodation. However, the employer is not entitled to know an employee’s medical condition or have access to their entire medical file. The employer is only entitled to know the functional limitations of the employee’s job duties, or in other words, the restrictions on the employee’s ability to perform their job. The employer is then obligated to use that information to assess options for accommodation and offer reasonable accommodation based on the employee’s needs, not preferences.
Knowing More Than Necessary Can Expose the Employer to Liability
The problem arises when an employer asks for more information than necessary. This can expose the employer to substantial liability for breach of an employee’s human rights. It is not the knowledge itself that creates liability, but rather, the implication or assumption that the employer made a decision based on the knowledge.
The employee does not have to show that the employer intentionally discriminated against them in order to establish a breach of their human rights. So even if an employer acts innocently or tries its best to accommodate the employee’s disability-related needs, the employer may still be found to have discriminated against the employee.
If an employer finds out more information than needed for the purpose of accommodation, and then the employer decides to discipline or terminate the employee, the fact that the employer has additional details can work to the employer’s disadvantage. The more an employer knows, the more it risks being found to have violated the employee’s rights, and in turn, on the hook for damages.
This issue can also arise in the context of hiring. Let’s say a job candidate requests accommodation. The organization can assess the need for accommodation and consider options by asking for only the necessary information – nothing more. Knowing too much can negatively impact the organization because if they decide not to hire the candidate for other reasons, and the candidate alleges discrimination, the organization will have to show that the decision not to hire them was entirely unrelated to the protected ground. The employer would likely have difficulty establishing zero connection, especially if the candidate can prove the employer probed more than it should have.
The Importance of Seeking Legal Advice
Employers would be wise to implement proper human rights and accommodation policies and procedures, in order to maximize their rights and flexibility and minimize potential liability. Employers should also seek legal advice from an employment lawyer to guide them through the process of accommodation.
Similarly, employees should seek legal advice to ensure they are getting what they are entitled to and not being taken advantage of, regardless of the employer’s intention.
We regularly assist both employers and employees navigate the various challenges that arise during the course of the employment relationship. As we always say, if you think you need an Employment Lawyer, you probably do!
