The Grismer Case

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How do you reconcile a standard that is meant to apply universally with the need to accommodate an individual with a disability?

Facts:

In 1984, Terry Grismer, a mining truck driver, developed Homonymous Hemianopsia (H.H) after suffering a stroke. The B.C Superintendent of Motor Vehicles cancelled Grismer’s license and refused to renew it on four occasions over the next seven years. Although Grismer repeatedly passed driving tests and standard visual tests, he always failed to meet the minimum, 120-degree standard for peripheral vision. Grismer, who was able to compensate for his poor peripheral vision by wearing special prism glasses, complained that he had been unfairly discriminated against on the basis of physical disability. The Supreme Court of Canada used the Meiorin three-part test to demonstrate that the 120-degre standard was not a bona fide occupational requirement.  British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human rights)  (1999), 36 C.H.R.R. D/129 (S.C.C.). 

Question:

• Does the 120-degree standard meet the Meiorin three-part test for bona fide occupational requirements in these circumstances?

Ruling:

• No, because it fails to accommodate individually.

Reasoning:

1. The standard in this instance is rationally connected to a purpose (the maintenance of moderate highway safety) and to a public function (the issuing of licenses).

2. The standard was adopted in good faith and with the honest belief that it was necessary for the accomplishment of that purpose

3. The absolute standard is not reasonably necessary for the maintenance of moderate highway safety because it discriminates unfairly against a specific subset of visually disabled clients, some of whom are able to compensate for their peripheral impairment.

4. Furthermore, the respondent failed to accommodate Grismer individually in three ways:

A) They failed to use one of three existing tests to evaluate his ability to compensate.

B) They failed to consider plausible measures to decrease the safety risk associated with 1) conducting tests for people with H.H. (use of a vehicle with dual controls); and 2) allowing certain individuals with H.H. to drive on highways  (required use of special glasses and a conditional license); and

C) They did not produce any cogent evidence establishing the cost of testing Grismer individually. Furthermore, they did not propose any cost-reduced alternatives.                                  

Relevant Links:

1. Individualized Accommodation

2. Appropriate Accommodation

3. Individualized Accommodation  

The L.B. Case

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What are the responsibilities of individuals seeking accommodation for a disability?

Facts:

In 1996, M.J., an employee working as a caregiver to L.B., an adult with a disability,  informed the committee of L.B. (the employer), that she would not be returning to work due to an unspecified illness. The employer requested that the employee submit a medical form so that her needs might be assessed and accommodated. When the employee refused to comply, the employer terminated her employment.  The employee, a person with paranoid or delusional disorder, filed a complaint of discrimination with the Newfoundland Human Rights Commission.  An adjudicator ruled in favor of the complainant, but a trial judge overturned that decision. The trial judge ruled that because the committee had not been aware of the employee’s disability at the time of the dismissal, it had not discriminated against her on the basis of disability. Moreover, at the time the employee had refused to fill out the medical form, her  thinking had returned to normal.  The Court of Appeal supported the ruling of the trial judge.  It underscored that in these circumstances, the requirement to submit a medical form was bona fide; that the employer had met its duty to take reasonable steps to inquire about the employee’s condition. Moreover, the Court maintained that the employee had knowingly failed to meet her duty to facilitate the accommodation process.  L.B. (Committee of ) v. Newfoundland (Human Rights Commission) (2002) NFCA 38, docket: 99/67.

Legal Question: 

Does an employee with a mental disability have a duty to facilitate the process of accommodation ?

Court Ruling:

Yes, in this particular case. (See alternate case)

Reasoning of the Supreme Court of Canada:

* The Court recognizes that paranoid or delusional disorder may negatively affect an afflicted person’s decision-making skills, such that the employer has a heightened duty to inquire about undisclosed before dismissal. However, when this particular employee refused to complete her medical form, her thinking had returned to normal.

* In refusing to fill out the medical form at a time when her mental condition was stable, the employee failed to meet her duty to facilitate the accommodation process. In these circumstances, dismissing an employee for an act of non-compliance that was not instigated by a disability does not constitute discrimination based on disability.

The Desormeaux Case

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What documentation is considered appropriate to demonstrate the need for accommodation for disability?

Facts

The Ottawa-Carleton Commission (OC Transpo) requires its drivers to attend work on a regular and reliable basis. In 1988, it dismissed Desormeaux, a chronically absent driver who, over the past nine years, suffered from transitory illnesses and migraine headaches. However, the two absences that specifically provoked her dismissal were both due to migraine. Before her dismissal, Desormeaux's family doctor had provided documentation attesting that her patient's intermittent ailments had been resolved and that, recently,her chronic migraine headaches were being controlled moderately by physiotherapy. OC Transpo rejected the doctor's note, claiming that a family doctor did not have the qualifications to make a diagnosis of migraine. The employer refused to accommodate the employee, claiming that poor past performance was an indicator of poor future performance. A Human Rights Tribunal ruled that OC transpo had discriminated against Desormeaux on the basis of physical disability; and ordered that she be reinstated and compensated. (Desormeaux v Ottawa-Carleton Regional Transit Comm. (No2) (2003), 46 C.H.R.R. D/1, 2003 C.H.R.T. 2.)

Legal Questions:

1. Was it appropriate for the employer to refute a family doctor's assessment of migraine?

2. Did the employer accommodate the employee to the point of undue hardship?

Court Ruling

1. No

2. No

Reasoning of the Supreme Court of Canada:

1. The family doctor who informed the employer that the employee had a physical disability had sufficient expertise to make the diagnosis. Moreover, a neurologist had previously established the same diagnosis.

2. The employer failed to accommodate the employee to the point of undue hardship when it rejected legitimate medical evidence that determined that the employee had a chronic disability whose debilitating effects had been improving over time. The employer should have accepted the medical evidence and considered appropriate alternative work arrangements for the disabled employee.

Relevant Links:

1. Confidentiality

2. Confidentiality

The Berg Case

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How do the rules for accommodating persons with disabilities apply to universities and their students?

Facts:

In 1981, a third year graduate student of the University of British Columbia’s School of Family and Nutritional Sciences was involved in two incidents precipitate by depression. On the day in question. Berg wrote a suicidal message on the bathroom mirror of the School and attempted to jump through a window. After treatment, Berg retuned to U.B.C. When the School moved to new premises in 1982, it denied Berg access to two services customarily available to other graduate students: a key and a rating sheet. Berg complained to the B.C. Human rights Commission that the university had denied her services because of her mental disability. The University did not deny this fact, but argued that it had not violated the code because the services denied to Berg were not “services customarily offered to the public”. The Supreme Court of Canada disagreed with the respondent; redefined the term “public” to include the student body and awarded costs against U.B.C. to the complainant. University of British Columbia v Berg (1993), 18 C.H.R.R.D./310 (S.C.C.).

Legal Questions:

1. Is the student body of a given university considered to be “the public” ?

2. If so, can students with disabilities be denied any accommodation, service or facility customarily offered to students without disabilities?

3. Did the university discriminate against a mentally disabled student when it refused to give her a key and a rating sheet?

Court Rulings

1. Yes

2. No

3. Yes (see alternate case for an example of student harassment)

Reasoning of the Supreme Court of Canada:

1. The “public” to which s.3 of the B.C. Human Rights Code implicitly refers, i.e. the general public, includes subsets of that public. Moreover, U.B.C. has a public relationship with its student body, which therefore constitutes its public.

2. Keys and rating sheets are services customarily offered to a specific subset of the general public, i.e. the student public of U.B.C.

3. Therefore, in denying her access to these services, U.B.C. discriminated against Berg on the basis of mental disability

Relevant Links:

1. Onus of Proof and Objective Evidence

2. General Issues

3. Duty of the Employer

The Howard Case

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Just how far does the duty to accommodate university students with disabilities go?  Just where does undue hardship begin?

Facts:

In 1989, a profoundly deaf student with limited external funding withdrew from a teaching certificate program offered at U.B.C. when the university refused to provide him with interpreter services at a cost of $40, 000 a year .The university argued that according to internal policy, it was not obligated to provide accommodation services to students doing a second degree. Howard’s complaint was heard by the B.C. Council of Human Rights, that decided that the university had violated s.3 of the Code in refusing Howard services on the basis of physical disability. It ordered the university to accommodate the student and to refrain from further acts of adverse discrimination. Howard v University of British Columbia (No.2) (1993) 21 C.H.R.R. D.142.

Legal Questions:

1. Did the university discriminate against a physically disabled member of its public by refusing to provide him with accommodation which would enable him to profit fairly from this service?

2. Does 40.000 a year constitute an undue hardship defense?

 Court Ruling:

1. Yes.

2. No.

Reasoning of the Supreme Court of Canada:

1.           Education is a service customarily offered to the public of the university. Under s.3 of the Code, the university is therefore obligated to provide this educational service without discrimination to persons with disabilities. This means accommodating for the student’s disability, and in this case providing interpreter services

2.           Obliging Howard to provide his own interpreter services is therefore an act of adverse discrimination because it places an unfair financial burden on him because of his disability.

3.          Even though the impact of accommodating the complainant would incur significant hardship, it does not constitute undue hardship, especially given the size of the university with an annual budget of $700, 000, 000, half of which is discretionary funds.

Relevant Links:

1. Cost

2. Funding Issues  

The Meikle Case  

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Under U.K. human rights law, what happens to an employee’s benefits if she is forced to resign as a result of her employer’s refusal to accommodate her disability (constructive dismissal)? 

Facts:

Gaynor Meikle, a Nottingham school teacher with over thirty years of experience, developed a disability when her sight degenerated in 1993.  She asked her employers to make improvements, such as enlarging written materials and taking on extra non-teaching hours for marking and class preparation.  In 1999, when the changes were refused, she went on sick leave. Consequently, she was suspended and her sick benefits were reduced. She was forced to resign in 2000.  In response , Mrs. Meikle made a claim under the Disability Discrimination Act (DDA) for discrimination and constructive dismissal The Disability Rights Commission (DRC) backed the precedent setting case, arguing that constructive dismissal is covered by the DDA when the employer fails to make crucial adjustments to the work place that allows a person with a disability to remain in the workplace, and that the employer cannot suspend or reduce pay if those actions are the result of the employer’s unwillingness to reasonably accommodate. (Nottinghamshire County Council v Meikle [2004] EWCA)

Legal Questions:

1. Is the employer entitled to reduce a person’s benefits when this results from the employer’s lack of willingness to provide reasonable changes to the workplace to accommodate a disability?

2. Does a “constructive dismissal” constitute a “dismissal” within the meaning of the Disability Discrimination Act 1995 and thus subject to a remedy by the tribunal?

Court’s Rulings:

2. No

3. Yes

Reasoning of the Court of Appeal

1.             Mrs Meikle’s case had first been decided by an Employment tribunal that had followed a precedent set by a previous Employment Appeal Tribunal (EAT) decision in 2001 (Harley), which held that “constructive dismissal” did not fall within the scope of the word “dismissal” in the Disability Discrimination Act (DDA) and therefore did not itself constitute a discriminatory act.

2.             The case was appealed to the EAT which considered a series of cases by that tribunal that went back and forth on the issue of whether “constructive dismissal” constituted discrimination under the DDA. 

3.             The Employment Appeal tribunal chose to follow the reasoning of those cases that found that the constructive dismissal of Mrs Meikle was a discriminatory act within the meaning of the 1995 Act, that Mrs. Meikle’s employer had breached an implied term of her contract of employment in refusing reasonable accommodation.

4.             The employer appealed to the Court of Appeal who, in this final decision, affirmed the EAT’s reasoning that the word “dismissed” in the DDA should be given a “wide meaning”. 

5.             The ruling makes it clear that, just as in Canada,  employers must make reasonable adjustments in the workplace, and will have to pay sick pay under the DDA when they fail to do so, if the consequence is that the disabled person is unable to work because adjustments have not been made.

Ontario Human Rights Commission

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Policies and guidelines:

Policy and guidelines on disability and the duty to accommodate

Barrier-free access requirements

Consultation papers:

Opportunity to Succeed: Achieving Barrier-free Education for Students With Disabilities.

Consultation on Undue Hardship and the Voluntary Assumption of Risk.

Reports :

Human Rights at Work.

Queen's University

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Contacts:

· For advice about accommodating students with disabilities, contact Barbara Roberts, Disabilities Services Advisor, Health Counseling and Disabilities Services.

· For advice about external funding for students with disabilities, contact Admission’s Office.

· For questions concerning residence staff or students with disabilities, contact Residence Admissions.

· For questions about accessibility of A.M.S. services to students with disabilities, contact the A.M.S.

· For consultation about the Queen’s Accessibility Plan, contact Jeanette Parsons, ODA Program Coordinator, Office of the University Advisor on Equity

· For  advice about procedures concerning the accommodation of  students and employees with disabilities, contact Irene Bujara, Director of the Human Rights Office

· For employment advice about accommodating employees with disabilities, contact Scott Wiley, Human Resources Consultant.

· To provide feedback on this issue, contact Catherine Wells, Special Projects Officer, Human Rights Office.

· For help locating court cases, contact Nancy McCormick, Research Librarian, Lederman Law Library.

Handbooks:

· Accomodating Students with Disabilities: Guidelines For Faculty

· Focus on disabilities: Ready, Willing and Able. Services for Students with Disabilities at Queen’s University

Policies, Guidelines and Plans

· Accessibility Plan: A Response to the Ontarians with Disabilities Act, 2001.

· Accommodation in the Workplace

· Education Equity Policy Statement

· Employment equity

· Harassment/Discrimination Complaint Policy and Procedures

· Making a Human Rights Complaint at Queen’s.

· Queen’s Policy Concerning Students With Disabilities

Editorial: English School loses dog fight

Byline/Source: Bu Chris Morris CANADIAN PRESS

Pubdate: July 08, 2004.

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Fredericton

The University of New Brunswick has reversed a controversial decision to ban a blind francophone and his guide dog from an English immersion program.

The university found itself in the doghouse this week when Yvan Tessier, a blind student from Quebec, was refused entry to a five-week summer English program because his guide dog Pavot understands only French commands.

Tessier from Trois-Rivieres went public with his story, which was picked up globally. After being inundated with interview requests from world media, including the BBC, officials at the Fredericton campus said earlier yesterday they hoped to work out a solution with Tessier as soon as possible.

A news release stated he could attend the class that started Sunday .In halting English, he said he wanted to, adding, “I guess it wouldn’t be too late.”

Pavot, his black Labrador, has been trained to respond to commands in French and it would be confusing, time-consuming and ultimately dangerous to try to retrain the guide dog to understand English commands.

The university said course officials demanded an iron-clad guarantee that Pavot would not be addressed in French.

Tessier refused to sign such a contract, so he initially was denied entry.

Tessier, who studied religion at Saint Paul University in Ottawa, has a bursary to learn English.

Reproduced with permission from the Canadian Press.

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