The Duty To Accommodate Does Not Require an Employer to Turn Customers Away

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A Store Manager for a leather company injured her wrist. Ultimately, the store terminated her position, prompting the within human rights application to the Ontario Human Rights Tribunal. As part of this application, the employee argued that the accommodation process required:

  • the employer continue to schedule a second employee during her otherwise sole shift, in case she was required to complete essential duties of her position that her wrist injury did not allow her to perform.

Prior to the full hearing, the Store Manager ultimately conceded that this was outside the scope of the employer’s obligation to accommodate. As a result, the Store Manager then argued that:

  • when she was scheduled to work alone, she should be able to defer any merchandising, housekeeping or other Store Manager duties that fell outside her restrictions to other employees to perform. Most importantly, she specifically asked that customers who wished to see or purchase items that would require her to exceed her restrictions, return to the store at a time when other staff would be able to assist the customer.

The Tribunal found that turning customers away did not comprise part of the employer’s duty to accommodate under the Human Rights Code. It noted that the duty to accommodate may require arrangements to an employee’s workplace that enable the employee to perform the essential duties of her/his work, but it does not require permanently changing the essential duties of a position or permanently assigning the essential duties of the position to another employee.

In this case, the Store Manager conceded that sales and customer service made up 65-70% of her position and that assisting customers was an essential duty of the position. However, she argued that it was not an essential duty that she herself be capable of assisting every customer that came in the store and that being able to help customers with their purchases most of the time was sufficient. The Tribunal rejected this argument and found that, “if a duty is essential, it is a duty that is required to be performed whenever there is a need to perform it”. The Tribunal warned that these cases are very fact specific, and in this case, put significant emphasis on the fact that the Store Manager position required just under 20 hours a week of shift work without any other employees present.

The important take away piece from this case is that essential duties or core components of a position are not normally required to be removed on a permanent basis (they may be for a temporary period of time). What is an essential duty or core component of a position are determined on a case by case basis.

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