Accommodation does not include refusing to serve customers

Serving customers all of the time deemed an essential duty of position
By P.A. Neena Gupta
|employmentlawtoday.com|Last Updated: 02/27/2015

Can a small retailer be required to let an employee turn away customers she cannot serve due to a disability as part of "reasonable accommodation?"

Toronto-based Bentley Leathers store manager Robabeh Poursadi developed a work-related wrist injury that precluded her from performing some of the customer service aspects of her position. The case did not make it clear what tasks she was unable to perform, but a reasonable inference can be made that the wrist injury would have precluded Poursadi from lifting, carrying, handling or demonstrating certain types of merchandise.

While this would not be an issue if there was another employee in the store, it became an issue as the store only merited one employee during less busy times throughout the week. The store only required one employee approximately 20 hours a week. The parties accepted that Bentley Leathers was not required to schedule a second employee simply to backup Poursadi.

In any event, Poursadi argued that she could be accommodated by simply being permitted to ask customers to return when another employee was present in the store. She further argued that it would only be in exceptional or rare occasions that she would not be able to service a customer and the potential loss of revenue would not constitute undue hardship.

Bentley Leathers argued that servicing all customers at all times was an essential duty of the position. Poursadi, however, argued that while this was a business requirement, it was not an essential duty. The tribunal accepted that an essential duty of the position was that the employee be able to assist customers “all the time,” not just “most of the time.”

The case illustrates the importance of having complete and detailed job descriptions. Bentley Leathers was not required to prove the potential loss of revenue or the type of hardship it would suffer if Poursadi was allowed to turn away some customers.

Instead, Bentley Leathers established its case based on the legal principle that once accommodation is implemented, the employee must be able to perform the "essential duties" of her position. As eloquently argued by Bentley Leathers:

"It is irrelevant whether the applicant (Poursadi) would be turning away customers rarely or frequently. …It is antithetical to the raison d’etre of a retailer to require them to allow employees to turn away customers or sales. ...employers are not obligated to allow an employee to defer tasks that exceed her physical restrictions."

P.A. Neena Gupta is a partner with Gowlings in Kitchener, Ont. She can be reached at (519) 575-7501 or neena.gupta@gowlings.com. 

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