The Leviathan and the Minnow: A Cautionary Tale about Accommodation
By Melynda Layton LLB
As Published in November 2005 Issue of Up-Date OHRPA Newsletter
Keays v Honda ([2005] O.J. No. 1145) is a cautionary example of the severe effects of an employer’s breach of its duty to accommodate. The duty to accommodate is rooted in the common law and is now codified in Ontario’s Human Rights Code (“OHRC”). It demands that employers modify work rules, practices and requirements to the point of undue hardship in order to meet the needs of individual employees who would otherwise suffer unlawful discrimination on one of the grounds enumerated in the Code, such as, in this case, disability. The Supreme Court of Canada has recognized that some “hardship” is acceptable and that employers most make more than a minimal effort to accommodate employees’ needs. In their effort, employers are expected to assume substantial extra obligations and financial costs, commensurate with the size and financial means of their organization.
In Keays, Justice McIsaac of the Ontario Superior Court of Justice awarded a record $500,000.00 in punitive damages as a deterrent and denunciation of Honda’s outrageous and high-handed conduct toward one of its long-time employees with disability needs.
Kevin Keays started working for Honda in 1986. Shortly thereafter, he was diagnoses with Chronic Fatigue Syndrome (“CFS”).
By August 1999, Mr. Keays was experiencing up to four absences from work per month. Apart from these illness-related absences, Me Keays was a model employee and the team leader in the Quality Engineering Department (“QED”).
As the first step in Honda’s progressive disciplinary process, Mr. Keays was “coached” about these absences by way of a written report. Mr. Keays’ replied by again complaining that he was unable to live up to Honda’s attendance expectations because of his illness. He was advised of a “special program,” which would exempt him from attendance-related progressive discipline based on a disability recognized by the Ontario Human Rights Code (“OHRC”). After 13 years of employment, this was the first that Mr. Keays had heard of this program.
Honda’s accommodation, however, created a new set of problems for Mr. Keays. He was required to provide doctors’ notes to validate each absence prior to returning to. This was not required with “mainstream” disabilities and resulted in discrimination on the basis of disability against Mr. Keays. As well, the procurement of these notes had the unintended effect of lengthening Mr. Keays’ absences from work. This had negative impacts on the efficiency of the QED.
Mr. Keays’ absences began to exceed the four per month that his physician, Dr. Morris, had indicated on the OHRC form. As such, Mr. Keays was asked to see one of Honda’s physicians, Dr. Affoo, which he did in November of 1999. In this meeting, Dr. Affoo threatened to move Mr. Keays back to the production line, a move that would have a debilitating effect on this health. Mr. Keays brought his concerns about this threat to his supervisors and was assured that there was to plan to move him back to the production line “at this time.”
By January and February 2000, Mr. Keays’ absences totalled 14, significantly surpassing the number predicted by Dr. Morris. Honda continued to refuse to reconsider the requirement that he obtain medical notes to excuse every absence.
Honda engaged the services of another physician, Dr. Brennan, to review Mr. Keays’ medical file and consider whether his absences were justified. Mr. Keays’ was not willing to meet with Dr. Brennan unless he was given details of the purpose and process of the meeting, which Honda refused to do. When Mr. Keays refused to meet with Honda’s doctor, his OHRC accommodation was revoked and then summarily dismissed.
Ultimately Justice MacIsaac found that Mr. Keays had been terminated without cause, had suffered harassment and discrimination on the basis of his disability and that as a result of the high-handed behaviour on Honda’s part he was entitled to $500,000 in punitive damages.
Keays v. Honda is a “how not to” example of accommodating employees’ disability needs. The following points can be taken from the case and can assist in the development of an employee-centered approach to accommodation:
-
Remember that accommodation is an employee’s right not an indulgence or act of charity by the employer.
-
Establish lines of inquiry – if you have an accommodation policy in place, make sure your employees are aware of it, its purpose and how they can apply.
-
Make sure that all disabilities are subject to the same standards – there cannot be different requirements for employees with “invisible” illnesses versus those with “mainstream” ones.
-
Listen to your employees – if someone is ill or disable, start from the position that they have legitimate need and go forward from there.
-
Establish a process for independent medical examination if you begin to doubt the legitimacy of the disability. Ensure that it is carried out in good faith and that all employees are subject to the same process, regardless of the illness involved.
-
Treat long-time employees with care
-
Make sure that your accommodation policy provides alternatives to termination
-
Remember that employees have human rights, which the law elevates over the smooth operation of a business
Keays v. Honda sends out a strong message to employers: employee’s human rights must be respected in the workplace and accommodated until the employer can truly do nothing more.
To ask a question or for further advice please contact Melynda at melynda.layton@careerlaw.ca or by telephone at 613-225-4400
