In a recent decision, a Board of Inquiry under Nova Scotia’s Human Rights Code found that an employer had violated its duty to accommodate a prospective employee on the basis of disability. This decision provides important confirmation that, like existing employees, prospective new hires also have a right to be free from discrimination, and to be accommodated up to the point of undue hardship.

Background

The Nova Scotia Health Authority offered a job to Melanie Yuile, a registered nurse and single mother. The offer was conditional on her being cleared fit for work. When the employer found out that she had epilepsy, a condition that prevented her from working the night shift on a rotating basis, it rescinded the offer.

A Board of Inquiry under Nova Scotia’s Human Rights Code found that, in rescinding the offer, the employer violated its duty to accommodate Ms. Yuile’s disability. The decision affirmed that employers have a duty to accommodate prospective employees who can perform the essential duties of the job. An employer cannot pass over an applicant with a disability simply because she cannot meet some of the job requirements. The employer must establish that, if the applicant can perform the core function of the job, accommodating the applicant would cause undue hardship.

The employer took the position that working the night shifts was a bona fide occupational requirement. The employer claimed that if it hired Ms. Yuile for day and evening shifts only, other staff may have to work more nights and, in that case, it may incur extra overtime costs. It further claimed that hiring Ms. Yuile could affect staff morale and raised patient safety issues.

In rejecting those arguments, the Board of Inquiry found that the employer’s concerns with employee morale and patient safety were speculative and impressionistic. There was no actual evidence to support either claim. There was similarly no evidence that the cost of accommodating Ms. Yuile would have been unduly burdensome for this large employer. Furthermore, there was no evidence that the employer consulted the union about accommodating the applicant and, in any event, there was nothing in the collective agreement that presented a barrier to accommodating the applicant.

Ms. Yuile was awarded general damages of $15,000, compensation for financial losses incurred, and the opportunity to accept the next available nursing position with the employer.

Discussion

This is one of the few cases to address the duty to accommodate prospective employees. As the Board of Inquiry recognized, it is difficult for claimants like Ms. Yuile, a self-represented litigant, to enforce her human rights. Claimants in her situation are usually unable to afford legal counsel. The employer had experienced counsel to represent its interests and, while the provincial human rights commission was a party to the case, it did not act as the complainant’s advocate.

Ms. Yuile did, however, have one significant advantage over many other claimants, if not the vast majority, in her situation: the employer was transparent about its reasons for refusing to give her the job. There is rarely such direct evidence of discrimination in the hiring process — or, for that matter, in any discrimination complaint. Claimants must rely upon circumstantial evidence to prove their case, a daunting proposition for unrepresented litigants without knowledge of human rights jurisprudence or the law of evidence.

This case is a positive reminder that, despite those systemic barriers, in order to be effective, human rights legislation must protect persons with a disability from discrimination in employment, whether they are already in the workplace or are seeking to join it.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]