Alberta Human Rights Tribunal finds terminated dental assistant was discriminated against

A dental assistant who was terminated after she took mental-health leave won her discrimination case at the Alberta Human Rights Tribunal because her employer wouldn’t accommodate her proposed two-day work-week.

If a terminated employee has established prima facie discrimination on account of mental disability, the employer may raise the defence of a bona fide occupational requirement; however, the employer should show that it has discharged both the procedural and substantive aspects of its duty to accommodate, according to the tribunal.

In Salazar v J.S.L. Investments Corporation, 2020 AHRC 8, the complaint alleged discrimination under s. 7(1)(a) of the Alberta Human Rights Act, which protects employees with mental disabilities from being terminated for their condition.

The complainant was hired by a dental clinic owned by Dr. Barry Lee. While the complainant generally enjoyed working in the office, she said she was occasionally overwhelmed with sadness and fatigue, as well as suicidal thoughts. Diagnosed with a major depressive disorder, she was granted a two-week leave of absence.

Shortly afterward, she suffered a “crisis” requiring hospitalization for around two weeks. She was then required to attend a day therapy program for about a month, after which she began to recover.

She then tried to return to work. Recalling that someone had recommended she resume work gradually, she asked Lee whether she could work on a two-day-per-week basis due to her condition. In response, Lee asked whether he could phone her psychiatrist.

During the telephone conversation, Lee told her psychiatrist that he did not know whether the complainant could deal with the clinic’s demanding patients. Lee then said that he was unsure how to explain this dilemma to her, given her suicidal thoughts.

Lee then told the complainant herself via text that the job might be too stressful for her. He added that he had hired another dental assistant and would be giving the complainant a severance package. Upon learning that her employment had been terminated, the complainant filed the action.

Duncan Marsden, tribunal chair for the Human Rights Tribunal of Alberta, decided in the complainant’s favour, ruling that she had successfully established prima facie discrimination. First, the complainant proved that she suffered a mental disability by presenting her medical records. Second, the text message from Lee stating that he was terminating her employment proved that she had suffered adverse impact. Third, there was proof that the disability was a factor in the adverse impact, because the evidence suggested that Lee’s reason for terminating her employment was that her condition would make it difficult for her to resume her former workload, given that he was unwilling to hire her for two days per week.

Since the burden had shifted to the respondent to justify the alleged discriminatory conduct, Marsden then considered whether the respondent had a justification either under s. 7(3) or s. 11 of the Act.

An employer can justify the alleged discriminatory conduct under s. 11 if it can show that the conduct was reasonable and justifiable in the circumstances. In this case, the respondent reasoned that the patient safety risks, especially in relation to the sterilization procedures practised at the clinic, justified its actions. Marsden disagreed with this argument, finding that the issue of patient safety was theoretical and lacked evidentiary basis.

On the other hand, under s. 7(3), the employer can argue that a bona fide occupational requirement (BFOR) prevented further employment. The BFOR defence has been clarified in the cases of British Columbia (Public Service Employee Relations Commission) v. BCGSEU and Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ).

In determining whether there is a BFOR, the former case proposed a three-step test. One of the steps, which is the step relevant to the present case, is to show that the employer discharged its duty to accommodate.

The Hydro-Québec case explains the employer’s duty to accommodate as follows: “The employer, however, must do whatever it can, short of undue hardship, to make adjustments to its procedures to permit the employee to fit into the organization’s system and enable the employee to work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.”

Marsden said that case law establishes that there are procedural and substantive aspects of the duty to accommodate, both of which the respondent failed.

Regarding the procedural aspect, while the respondent had taken some steps to consider alternative work arrangements, it failed to do enough. Lee could have inquired further regarding the expected duration of the two-day-per-week arrangement, and regarding the medical basis for such request.

“I find that the failure to find out more information about the complainant’s request for accommodation constitutes a failure in the procedural aspect of the duty to accommodate,” Marsden wrote.

As for the substantive aspect, while the complainant’s request for a two-day-per-week schedule may have led to minor inconveniences in relation to efficiency and patient care in the clinic, Marsden did not find that these inconveniences amounted to undue hardship.

For these reasons, Marsden awarded the complainant compensation for lost income and general damages for injury to dignity.