The Human Rights Tribunal of Ontario has ruled an employers’ conduct that creates mere emotional discomfort for employees during the accommodation process may not amount to discrimination.
“What emerges from the Cillis v. Hamilton decision is an objective standard requiring employers to act reasonably, not perfectly,” says Jeff Goodman, a commercial employment law partner at Mathews, Dinsdale & Clark LLP and who wasn’t involved in the case.
Allison Cillis, an employee of the Hamilton-Wentworth District School Board, sought a permanent teaching position with the board. Before participating in an interview process, she provided medical documentation confirming her mental-health disability. The materials noted that she recognized many of the triggers for her condition, which should “be heeded to avoid emotional distress to her mental health” when she identified them.
Cillis requested accommodation for the interview process, including a private space to relax before the interview, extra time to review questions and the exclusion of a certain individual from the interviewing panel. The board acceded to most of the requests.
Following the interview process, Cillis was offered a permanent position. Nonetheless, Cillis alleged the board had discriminated against her on the basis of her disability.
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She maintained the 30 minutes of additional preparation time she had received were less than the full hour she expected. Cillis also alleged some of the comments made by the wellness coordinator with whom she discussed the accommodations to be disdainful and she was disturbed by the presence of individuals in the hallway, including the removed panelist.
Overall, Cillis asserted the accommodations were deficient and the process lacked sensitivity and dignity, causing her emotional distress.
The Tribunal disagreed, noting employers providing accommodation don’t have to meet all of employees’ subjective expectations. It explained the test for discrimination requires the applicant have a protected characteristic and they must have experienced adverse treatment in which that characteristic was a factor. Although Cillis clearly had a disability, she hadn’t experienced “adverse treatment,” nor was the alleged treatment connected to her mental health disability.
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While the accommodations were somewhat different from what the employee expected, the Tribunal ruled they were reasonable and consistent with medical documentation. It also ruled the behaviour during the accommodation process that gave rise to emotional discomfort caused by negative feelings and anxiety didn’t amount to adverse treatment or disadvantage sufficient to establish discrimination.
“[The saying] ‘you don’t always get what you want, you get what you need,’ is a good way to paraphrase the board’s reasoning,” Goodman says. “Being reasonable in terms of how an objective person would perceive the conduct, as opposed to being perfect or ideal, is the standard.”
However, he says Cillis’ case might have succeeded had she been able to show the treatment she complained of was connected to a prohibited ground, being her mental disability in this case. “When the conduct is aimed at the disability, mere emotional distress might be enough to ground a finding of discrimination.”
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