Disabled Employee Entitled to Equal Treatment, Not Better Treatment

October 2014

A recent case from the B.C. Human Rights Tribunal addressed the protections afforded to an employee who could no longer work at a full-time level on account of her disability. In particular, the issues of guaranteed hours of work and the right to full-time benefits were canvassed.

In Jardine v. Costco Wholesale Canada, 2014 BCHRT 214 (Trerise), the employee was a long service, regular full-time (RFT) employee, scheduled 40 hours per week, with full benefits. Regular part-time (RPT) employees were scheduled between 35 and 39 hours per week and received reduced benefits. Limited part-time (LPT) employees were not guaranteed any hours of work and not eligible for any benefits, unless grandfathered in 2004.

The employee went on medical leave in 2009. She was ultimately accepted for STD and LTD benefits, while attempting a graduated return to work. The graduated return to work plateaued at 20 hours per week due to the employee’s permanent disability. As a result, the employee was classified as LPT and not eligible for benefits. The employer topped up her wages during the graduated return to work and extended her RFT benefits on a temporary basis. The employee requested that the employer accommodate her with RFT benefits on a permanent basis, despite her LPT status. When the employer declined, she filed a complaint with the B.C. Human Rights Tribunal, seeking guaranteed hours of work and RFT benefits.

The employer applied to dismiss the complaint and asked the Tribunal to consider whether there was a reasonable prospect that the complaint would succeed: section 27(1)(c) of the B.C. Human Rights Code.

The Tribunal began by observing that the employee’s request for guaranteed hours of work was premature as she had not been dismissed from employment and, in any event, such a right would put her in a better position than her LPT co-workers. The Tribunal then determined that there was a possible nexus between the employee’s disability and the reduction of her benefits. Consequently, it turned to assess the employer’s bona fide occupational requirement (BFOR) defence.

The Tribunal focused its analysis on the jurisprudence which holds that a distinction between compensation-based benefits and non-compensation based benefits is not prima facie discriminatory. Reference was made to Ontario Nurses Assn. v. Orillia Soldiers Memorial Hospital, [1999] O.J. No. 44 (Ont. C.A.), in which case it was held that requiring work in exchange for compensation is a reasonable and bona fide requirement.

Considering the issue of undue hardship, the Tribunal accepted that accommodating the employee would either force open the floodgates for other employees requesting similar accommodation (with financial exposure of $1.4 million) or cause the employer to treat those other employees in a discriminatory and unconscionable manner.

As result, the complaint was dismissed on the basis of having no reasonable prospect of success. The lessons to be learned from this case include the following:

  • While not expressly referenced in the Tribunal’s decision, it is clear that the “comparator group” approach was applied in finding that the employee should be treated the same as all other employees working 20 hours per week. Stated differently, a disabled employee is entitled to equal treatment as an employee without a disability, not better treatment.
  • Characterizing benefits as being compensation-based (related to the work, hours being performed or some other tangible contribution) is critical to attract the BFOR justification. Benefits which are non-compensation based (e.g. accruing seniority) will typically not support a BFOR defence.
  • The employer’s position was likely improved through its other accommodation efforts in relation to the employee’s leave, graduated return to work and temporary extension of benefits.