Establishing Undue Hardship Is Possible: Wilcox v. University of British Columbia and others, 2014 BCHRT 228

December 2014

Article by: Jennifer Devins

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights Newsletter.

A recent decision of the B.C. Human Rights Tribunal, Wilcox v. University of British Columbia and others, 2014 BCHRT 228, demonstrates that undue hardship is not an impossible threshold to meet, even for a large and diverse employer such as a university.

Dr. Wilcox was employed by the University of British Columbia (UBC) as a Research Assistant. During her employment, she developed a severe allergy to mice. As Dr. Wilcox’s position required her to work with mice, she commenced a medical leave in August 2012.

From November 2012 to January 2013, Dr. Wilcox returned to work in a temporary position performing duties that did not require her to work with mice. After the end of the temporary period when those duties were no longer required, Dr. Wilcox once again commenced a leave of absence.

Over the next seven months, UBC reviewed over 200 job postings to consider whether Dr. Wilcox was qualified for any of the positions and whether they were consistent with her medical restrictions. Dr. Wilcox was also provided with access to the same job postings.

UBC identified a few specific postings for Dr. Wilcox to consider, in response to which she indicated that she was not qualified. She did not identify any postings during that time period for which she was qualified and which were consistent with her medical restrictions. Dr. Wilcox did not apply for any postings.

Dr. Wilcox filed a human rights complaint alleging that UBC had failed to accommodate her disability. The complaint was dismissed on a preliminary application without a hearing on the basis that there was no reasonable prospect that the complaint would succeed. Such preliminary applications before the Tribunal are determined on the basis of affidavit evidence and written submissions.

In considering Dr. Wilcox’s prospects for success, the Tribunal confirmed that the accommodation process does not require an accommodation “to the point of undue hardship”, but rather a reasonable accommodation “short of undue hardship”:

Although the duty to accommodate is often stated as extending “to the point of undue hardship”, the Supreme Court of Canada in O’Malley actually expressed it as a requirement for reasonableness “short of undue hardship”. In other words, the employer is obliged to accommodate within a range of reasonableness, which may well involve a measure of hardship, but not “undue” hardship. To state the duty to accommodate extends “to the point of undue hardship” implies a precision of measurement incongruous with the reasonableness standard expressed in O’Malley

[At para. 83.]

The Tribunal also commented on the scope of the accommodation obligation on large employers, such as a university, and confirmed that there is no presumption of an absence of undue hardship at such employers:

Likely it would be easier to find an accommodation without undue hardship at a workplace where many people are employed than at a workplace where few people are employed. However, there is no presumption of undue hardship at the latter, or of an absence of undue hardship at the former. These cases are decided individually, based on their particular circumstances. Here, the University employs a large number of people across a broad spectrum of job classifications. The 223 postings that Ms. McGill particularly noted in the Job Search Tracker were a small fraction of the 40 pages of job postings listed, and Ms. McGill could only come up with two possibilities she thought might fit within Dr. Wilcox’s qualifications and medical restrictions. Dr. Wilcox explained why she did not consider herself qualified, and Ms. McGill agreed. Dr. Wilcox had access, via the UBC website, to all the postings across the University. She does not dispute that she was not interested in a Tech 2 position, i.e. a lower position; and she did not suggest any other possibility, nor did she inquire about any other possibility.

[At para. 93.]

Further, the Tribunal held that it was entirely appropriate for UBC to have sought an accommodation for Dr. Wilcox among only vacant positions:

Furthermore, an employer does not breach the Code because it seeks to accommodate an employee with an available job; and the University was not obliged to displace an employee to create a vacancy for Dr. Wilcox, or to create a tailor-made job for her – not that she requested such measures.

[At para. 94.]

As a result, the Tribunal concluded that there was no reasonable prospect Dr. Wilcox would be able to establish that she was treated adversely through a failure by UBC to reasonably accommodate her or that she was not accommodated short of undue hardship, and the complaint was dismissed accordingly.

Notes for Employers

The Wilcox decision provides useful guidance to employers engaging in the accommodation process.

First, the decision confirms that an employee’s entitlement, if the duty to accommodate arises, is to a reasonable accommodation.

If a reasonable accommodation can be reached far short of undue hardship, there is no legal obligation on the employer to keep searching for an accommodation that is closer to or at “the point of undue hardship”.

Second, the decision demonstrates the value of a thorough and documented accommodation process.

UBC was successful in getting this complaint dismissed because of the diligence of its accommodation efforts and its documentation of those efforts. UBC did not seek to rely on impressionistic evidence regarding its accommodation efforts or undue hardship; rather, UBC was able to demonstrate through contemporaneous records both the positions that it had considered for Dr. Wilcox and her response to its accommodation efforts.

Having documented those diligent efforts, UBC was able to avoid the time and expense of a hearing by demonstrating in a preliminary application that Dr. Wilcox’s complaint had no reasonable prospect of success.