When Human Rights Collide . . . Take Reasonable and Practical Steps to Minimize the Harm

From time to time, employers will find themselves faced with circumstances where taking steps to avoid discriminating against a customer or client under the Human Rights Code will have the unintended result of the employer discriminating against its employees.  That is the situation Victoria Taxi faced in the  B.C. Court of Appeal’s recent decision, McCreath v. Victoria Taxi (1987) Ltd.

The Facts

Graeme McCreath was blind and required the assistance of a guide dog.  He and some friends were out for dinner . When the dinner ended,  one of Mr. McCreath’s group called Victoria Taxi, but did not mention that one of the passengers would be accompanied by a guide dog. On arrival, the taxi driver advised that he could not have a dog in the car as he had an allergy to dogs. He arranged for another cab, which arrived within a few minutes. The second taxi took Mr. McCreath, along with his dog and his friends, to their destinations.   The first driver was acting in compliance with the employer’s exception policy, which required a driver to provide an annual medical certificate indicating he or she had an allergy to animals in order to be exempt from transporting them. Indeed, the driver in question was one of a handful of 225 drivers employed by Victoria Taxi who had done so. Victoria Taxi had a policy that if someone called for a cab and advised the dispatcher that they were accompanied by an animal, it would dispatch a driver who did not have a medical certificate on file.

Mr. McCreath filed a human rights complaint against Victoria Taxi because he felt that people like him are routinely discriminated against in service industries (e.g. hotels, restaurants and other public services and places) and he felt humiliated by the experience.

Several years ago, the B.C. Human Rights Tribunal dismissed Mr. McCreath’s complaint on the basis that, although it was discriminatory to initially refuse service to Mr. McCreath, Victoria Taxi had demonstrated a bona fide and reasonable justification for the discrimination.  Mr. McCreath sought judicial review of that decision, which was denied.  He then appealed further to the B.C. Court of Appeal, which issued its decision at the beginning of October, 2017.

The Court of Appeal’s Decision

The Court of Appeal considered the Guide Dog and Service Dog Act (which provides that a person with a disability accompanied by a guide animal has the same rights, privileges, and obligations as a person not accompanied by an animal) and the Human Rights Code, which prohibits discrimination against customers on the basis of disability, without reasonable justification, in regard to an accommodation, service or facility customarily available to the public. However, the Human Rights Code also prohibits discrimination against employees on the basis of disability unless that discrimination is based on a bona fide occupational requirement.  Victoria Taxi was faced with a situation where, no matter what, at least on its face, it would be discriminating against either Mr. McCreath or its employee.

The Court of Appeal rejected Mr. McCreath’s arguments and upheld the Tribunal’s decision.  It did not accept that Victoria Taxi was required to accommodate his disability without exception or that the Tribunal was not entitled to take into account Victoria Taxi’s duty to accommodate the disabilities of its employees. Ultimately, it found that the Tribunal was right to consider the employer’s obligations to its employees with disabilities in determining whether Victoria Taxi had taken all reasonable or practical steps to avoid an adverse impact on Mr. McCreath.

The court also decided that, although in some circumstances it may be possible to accommodate both disabilities, in this case, it was not possible because “reasonable or practical steps could not have been taken to avoid the adverse impact on both Mr. McCreath and the driver.”   It is important to remember that Victoria Taxi did implement systems to avoid discrimination against its customers through its dispatch protocol and by requiring annual medical proof of a driver’s allergy. The court concluded that Victoria Taxi could not have reasonably or practically done anything else to avoid the negative impact on Mr. McCreath, while at the same time accommodating its employee’s disability. The Court agreed with the Tribunal that “further accommodation in the form of drivers being required to take allergy medications or installing barriers around the drivers” or “refusing to hire drivers with animal allergies . . . were untenable or, in other words, they were not reasonable or practical steps to take in order to avoid the discrimination.”

The court provided some guidance to employers in applying the concept of undue hardship in such cases:

Mr. McCreath says there was no evidence of undue hardship in this case.  However, it is not necessary for the service provider to prove that it incurred undue hardship in order to avoid the discrimination.  What is necessary is for the service provider to establish that it would have been an undue hardship to take the steps to avoid the discrimination.  Mr. McCreath suggests there were alternatives of opening windows, directing the heat fan or installing a curtain or partition but it is speculative to assert that any of these alternatives would have alleviated the driver’s allergy.

In short, the Court of Appeal concluded that Victoria Taxi’s duty to accommodate its disabled employees “provided the bona fide and reasonable justification for the discrimination against Mr. McCreath because any further effort to accommodate Mr. McCreath would have resulted in discrimination against the drivers.”  Furthermore, the expeditious dispatch of a second cab supported the conclusion that “Victoria Taxi was genuine in its efforts to minimize the adverse impact on disabled persons who did not inform the dispatcher that they were accompanied by guide dogs” and that it had taken other reasonable and practical steps to reconcile the conflicting rights of Mr. McCreath and its employee.

Practical Tips For Employers

• Consider whether in fulfilling your duty to accommodate the public, you may run into a conflict in accommodating your employees.
• Be proactive in anticipating and addressing potential conflicts in your business between human rights and obligations as they relate to customer/clients and employees who may also require accommodation (for disabilities and for other protected grounds under the Human Rights Code).
• Establish practical and reasonable steps to allow the apparently conflicted rights and obligations to coexist as harmoniously as possible and with minimal impact on the affected customers/clients and employees.
• Communicate (as required) within the organization, and externally (as appropriate) regarding the practical and reasonable steps being implemented. An internal policy is a necessity and external communication to the affected public is a very good idea.
• When faced with an actual conflict between the rights of your customers/clients and the rights of your employees, ensure that the practical and reasonable steps set out in your policy are in fact implemented. Having a policy is of no value if it is not followed.