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Queen's University
 

Human Rights Office

The Accommodation of Employees with Mental Health Disorder

Can an employer be held accountable for discrimination, even if it can establish, after the fact, that it had been justified in summarily dismissing an employee with a bipolar condition for security reasons?

Yes.

In Lane v. ADGA Group Consultants Inc., 2007 -10-16 HRTO 34 (CanLII), the Ontario Human Rights Tribunal has recently ruled that employers must explore the possibility of accommodating persons with a mental health disability, even in the presence of security concerns. The Tribunal has stated that the failure to meet the procedural dimensions of the duty to accommodate is an act of discrimination in so much as it "denies the affected person the benefit of what the law requires: a recognition of the obligation not to discriminate and to act in such a way as to ensure that discrimination does not take place"  (para 150).

Although the employer can use after the fact evidence to establish that it had been justified in dismissing the employee, this does not excuse it from not meeting the procedural dimension of the duty to accommodate.

The damages awarded for such discrimination is directly proportional to the adverse consequences suffered by the employee.  In this case, the employee (Mr. Lane) was awarded over $70, 000 in damages. He slipped rapidly and irreparably into mental, financial and personal decline when he was summarily dismissed just days after informing his supervisor that he suffered by a bipolar disorder triggered by workplace stress.

The Tribunal ruled that although the employer, who tested artillery software for the Department of National Defense, was justified in having serious concerns about retaining this employee, it should have taken the following steps to meet the procedural dimensions of the duty to accommodate:

1) Evaluate the concerns on the basis of an appropriate assessment of the [employee's] situation and not just the information [it] had at the time

2) Engage in a fuller exploration of the nature of bipolar disorder, and [the employee's] own situation as a person with bipolar disorder

3) Form a better informed prognosis of the likely impact of his condition in the workplace.

4) Consult with a lawyer re. the legal dimensions of accommodation of mental illness in the workplace

5) Contact security personnel

6) Send the employee home immediately with a view to seeking medical attention

7) Postpone any decision on his future with the ADGA until such time as those responsible could fully evaluate whether ADGA could accommodate Mr. Lane without undue hardship.

    Kingston, Ontario, Canada. K7L 3N6. 613.533.2000