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How not to handle accommodation | Stuart Rudner

Thursday, July 14, 2022 @ 9:43 AM | By Stuart Rudner


Stuart Rudner %>
Stuart Rudner
The City of Toronto recently generated some unfortunate media coverage when it mishandled the need to accommodate Sikh security guards in the context of a mask mandate. Headlines included:

  • “A failure in process,” says Tory, after Sikh security guards in Toronto removed from job over masking policy
  • Major backlash after Toronto’s “no-beards rule” leads to over 100 Sikh security guards being laid off
  • City of Toronto apologizes after Sikh security guards let go over no-beard rule

No organization wants this type of publicity, but it can happen, especially when it comes to issues of discrimination. So, what did the City do wrong? In a nutshell, it did not follow an appropriate process when a request for accommodation was made.

It’s important to remember that the duty to accommodate includes both a substantive component and a procedural one; failing to meet either of those is a breach of the duty.

So, what happened? The City’s masking mandate provides that staff working in homeless facilities who come into contact with people suspected or confirmed to have COVID-19 must wear a N95 respiratory mask. The City had stated that all workers must be properly fitted for the masks, and that facial hair interferes with proper fitting.

Approximately 100 Sikh security guards were then laid off or placed in lower-level positions by a third party that provided security services to such facilities, as they could not be properly fitted with masks due to the facial hair required by their religion. As a result, on June 7, 2022, Balpreet Singh of the World Sikh Organization of Canada wrote to Mayor John Tory and members of city council to demand an “urgent resolution.” Despite public support of the guards from many groups and high-profile individuals, it took almost a month for the City to respond.

Ultimately, the City directed the contractors to reinstate the affected employees and, in a press release, said that it would be “looking at its legal options, up to and including terminating the contracts of any contractors found to be in violation of City policy or human rights legislation,” and that [t]he City does not tolerate, ignore, or condone discrimination, and is committed to promoting respectful conduct, tolerance and inclusion, always.”

The City was able to accommodate the workers by allowing them to use under-mask beard covers, which are tight-fitting coverings worn over a beard, which allows a N95 to go on top. That seems like a very simple solution, and one that should have been considered before the policy was implemented or, at the very least, one the concern was raised.

So, what should the City have done differently?

As we always advise employers, they must take all requests for accommodation seriously and engage in a meaningful assessment of:

  1. whether there is a need for accommodation and, if so,
  2. the options available for accommodation.

The duty to accommodate is to the point of undue hardship, which is a significant threshold. Employers should never reject a request out of hand or with vague comments that “it’s too expensive,” “not possible,” or, a perennial favourite, “we’ve never done things that way.” None of those responses will be acceptable; the organization will have to produce real evidence of its efforts to assess options for accommodation and the costs or impediments to implementing them. Aside from cost, impediments could include health and safety concerns, for example.

In this context, once the rule was implemented and a request to accommodate Sikh guards with beards was raised, the City should have recognized that the masking requirement had a discriminatory impact based upon a ground prohibited by human rights legislation (religion or creed). As such, the duty to accommodate is triggered, and the City should then consider methods by which it could accommodate the employees in question. That could include things like the under-mask beard covers, although in other cases, accommodation can include options such as leaves of absence or modified duties. Every situation is different.

There are many circumstances in which accommodation may be required, including disability (anything from a permanent mobility issue to hearing loss to cancer treatment), family status (child and elder care obligations) and others. During the pandemic, those with medical or religious reasons which meant they could not be vaccinated were often discussed, and provided real-life examples of the type of situation that can arise.

As we often say, the accommodation process is to be a dialogue between the employee seeking accommodation and the employer. Sometimes that will include discussion of potential methods of accommodation, though it is important to remember that ultimately, the employer is entitled to choose the form of accommodation so long as it is reasonable. An employee is not necessarily entitled to their preferred form of accommodation.

The City of Toronto story demonstrates how not to respond to a request for accommodation, but also how failing to respond appropriately can lead to negative publicity and impact the reputation of the employer. Particularly in the context of the current labour shortage, it is a surefire way to avoid being an employer of choice.

Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He is the author of You’re Fired! Just Cause for Dismissal in Canada. He can be reached at 416-864-8500 or stuart@rudnerlaw.ca.

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