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Jun 27, 2013

No discrimination if undue hardship for employer: Federal Court

Tribunal's finding that agency discriminated against employee with diabetes even though accommodation would have brought undue hardship overturned by court
    
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A Canadian Human Rights Tribunal ruling that a Canadian aid worker with diabetes was discriminated against when she was prevented from going to Afghanistan to work has been overturned by the Federal Court.

Bronwyn Cruden, 41, was a project manager with the Canadian International Development Agency (CIDA). In 2007, she successfully completed a one-month assignment in the field in Afghanistan without experiencing any difficulties from her diabetes.

On Jan. 20, 2008, Cruden began another assignment in Afghanistan, this one expected to last six weeks. However, three weeks later, she suffered a hypoglycemic incident which required treatment by Canadian Forces medical personnel and doctors recommended Cruden be sent back to Canada. Cruden disagreed with the recommendation but CIDA ended her assignment and sent her home.

Cruden was interested in future assignments in Afghanistan, so she obtained a letter from her doctor that proclaimed her “mentally and physically capable of continuing her work in Afghanistan.” CIDA asked her to undergo an assessment by Health Canada doctors, who determined Cruden wasn’t fit for duty in Afghanistan. Health Canada also had a policy prohibiting federal employees with type 1 diabetes from working in hostile environments.

Cruden learned the decision to deploy her was ultimately CIDA’s, not Health Canada’s, and asked the agency to use its discretion and send her overseas. CIDA refused, and Cruden underwent an independent evaluation that assessed her risk in Afghanistan as “slightly higher” than non-diabetics, but stated she was fit for deployment with the proper equipment to manage her condition. CIDA felt it was still too risky and denied Cruden’s request for a posting in Afghanistan.

Cruden filed a human rights complaint, claiming CIDA denied her an employment opportunity based on her disability. The Canadian Human Rights Tribunal found CIDA discriminated against Cruden by failing to meet its “procedural duty” to accommodate. CIDA didn’t properly investigate accommodation options or seek another medical opinion, said the tribunal. Both CIDA and Health Canada were ordered to pay Cruden $10,000 each for pain and suffering and “reckless and willful discrimination.”

However, the tribunal noted that accommodating Cruden in an Afghanistan posting would have constituted undue hardship for CIDA if it had followed through on its duty to accommodate.

“The evidence indicates significant health and safety risks for (Cruden) in working in Afghanistan, as well as safety risks for those fighting the war in Afghanistan should they have to assist the complainant,” said the tribunal.

The Federal Court found it unreasonable for the tribunal to interpret the Canadian Human Rights Act (CHRA) as meaning “there is a procedural duty of accommodation that can be breached notwithstanding that accommodation is impossible without undue hardship.”

“If a person cannot be accommodated without undue hardship then the alleged discriminatory practice is based on a bona fide occupational requirement (BFOR); if it is based on a BFOR then it is not a discriminatory practice; and if it is not a discriminatory practice the tribunal ‘shall’ dismiss the complaint,” said the court. “In my view, there is no reasonable interpretation of the CHRA that permits the tribunal to continue to examine a complaint and the actions of the parties once it has found, as it did in this case, that accommodation is not possible without undue hardship.”

The tribunal’s decision was overturned and Cruden was ordered to pay the government’s legal costs.

“There is but one duty: the duty to accommodate an employee to the point of undue hardship,” said the court. “The finding that it would have caused CIDA undue hardship to accommodate Ms. Cruden in Afghanistan should have ended the tribunal’s inquiry as the effect of that finding was that there was no discriminatory practice.”

For more information see:

Cruden and Canadian International Development Agency, Re, 2013 CarswellNat 1632 (F.C.).
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