Case studies: Physical disability

Area: Employment
Ground: Physical disability
Result: Resolved voluntarily through conciliation

A woman who worked as a secretarial assistant stated that she was forced to take disability leave as a result of fibromyalgia. When she returned to work, she told her supervisor she could no longer type and requested other duties. The supervisor said her job could not be modified and requested a note from the complainant's doctor indicating her ability to do the job. When her doctor wrote that she would be off work indefinitely, the complainant was terminated. In conciliation discussions, the employer stated that typing was a basic requirement, and reasonable accommodation could not be made. This was explained to the complainant, who requested a letter of reference, which the employer agreed to provide. The file was closed.

Area: Employment
Ground: Physical disability
Result: Dismissed at the investigation stage

A man was hired as a welder at a privately owned manufacturing company. He had undergone surgery for a back condition. There was no indication that the employer was aware of the complainant's back condition. According to a finding of a separate review body, during the complainant's second day of work, he fell and  re-injured his back. The respondent terminated the complainant, claiming his work was inferior. The investigation into the complaint did not find merit.

Area: Employment
Ground: Physical disability
Result: Dismissed at the investigation stage 

A man worked for a manufacturing company for over 20 years. Several years before he was terminated, he had suffered an injury at work that had been handled by the Workers' Compensation Board.  Following his return to work, he complained of constant pain and could not do the work he had originally been hired to  do.  The company accommodated the complainant for several years by allowing him to set his own workload and by not requiring him to work overtime, as was required of other employees. He was not as productive as other employees.  Eventually the company terminated the employee for cause, citing poor work performance.  However, the poor performance was not documented.  After the termination, the company hired the complainant back into a temporary position, which suited the employee better. When the temporary job ended, the complainant was laid off.

The complainant alleged discrimination based on physical disability. Investigation found that the company had accommodated the man for four years, including allowing him to set his own workload, and had no obligation to supply this accommodation on an indefinite ongoing basis. It was a coincidence that the company had a short-term contract at the time the complainant was terminated, which allowed him to do similar work, but under completely different conditions.

The complaint was dismissed. The complainant appealed to the Chief Commissioner*, who upheld dismissal of the complaint.

Area: Employment
Ground: Physical disability
Result: Resolved voluntarily at the investigation stage
 
A man claimed that when he returned from disability leave, his employer failed to accommodate him appropriately, made false claims about his performance, and terminated him from his job.  Investigation established that the complainant had performance problems, possibly beginning prior to his disability, which justified his termination.  However, the evidence also revealed that the employer did treat him differently upon his return to work than it had prior to his injury.  On this basis, his complaint was found to have merit.  It was recommended that the complainant be compensated in the amount of $2300 for damages caused by offence to his dignity as a person with a disability.  The complainant accepted the settlement.

Area: Employment
Ground: Physical disability
Result: Resolved voluntarily through conciliation 

A woman complained that her employer had discriminated against her based on her physical disability, hearing loss. She claimed that her employer had not accommodated her request for a change in duties that would accommodate her disability.  She could no longer do her original job because the work environment was too noisy and she could not conduct telephone conversations.

Conciliation was successful.  The employer accommodated the employee by providing a different job within the complainant's physical capabilities, although at a lower salary that was commensurate with the new work.  The complainant was satisfied with these terms.

Area: Employment
Ground: Physical disability
Result: Dismissed at the investigation stage 

A man alleged that he was discriminated against and that his employment was terminated because of a physical disability.  Conciliation of this case was not successful, and an investigation was conducted.

The investigation found that the man had initially provided medical information to his employer recommending that the man be off work for eight weeks.  The employer accommodated this request.  After the eight-week period, the employer requested further information about the man's medical condition.  The man failed to keep the employer informed of his status. Investigation revealed that the man's employment was terminated because he did not keep his employer informed about his status and availability for work, not because of a physical disability.  The complaint was dismissed.  The complainant did not appeal the dismissal.

Area: Employment
Ground: Physical disability
Result: Resolved voluntarily through conciliation

A complainant alleged his employer had discriminated against him on the ground of physical disability.  The man alleged that the employer failed to provide modified light duties, and therefore he was not able to return to work.  The employer denied the allegations, saying that the Workers' Compensation Board (WCB) had declared the man fit for work.  During conciliation the parties agreed to a settlement of the disputed matters, and the complainant received financial compensation of $7,500.

Area: Employment
Ground: Physical disability
Result: Resolved voluntarily at the investigation stage
A man was injured while working for an industrial company.  The man's supervisor was aware that the man was receiving rehabilitation treatments through the Worker's Compensation Board.  While the man was off work, his employer sent out a recall notice to a group of employees, including him.  When the man did not return to work by the date specified, the employer considered him to have abandoned his job. 

Conciliation of this complaint was not successful, so an investigation was done.  The investigation found that the employer discriminated against the man by strictly applying its usual recall practice.  It would not have been undue hardship for the employer to wait until the man completed his treatment before asking him to return to work.  The investigator recommended that the man receive a financial settlement of $1,000 for injury to dignity and self respect.  However, the man considered his complain settled. When he received the investigation report, which supported his complaint, he asked that the Commission not pursue the employer for the financial settlement.

Area: Employment
Ground: Physical disability
Result: Dismissed at the investigation stage

A man alleged that his employer discriminated against him by firing him due to absences related to his disability.  The employer stated that the man was fired because of absences unrelated to his disability.  Conciliation of this complaint was not successful, so an investigation was done.

The investigation showed that the complainant did have a disability and that the employer had taken his disability-related absences into account when he was terminated.  The investigation also showed that the complainant did not participate adequately in the process of accommodation, as he did not phone in to report his absences.  The process of accommodating a physical or mental disability requires the cooperation of both the employer and employee.  The investigator determined that accommodation was not possible in this particular case due to the sporadic nature of the man's illness and his lack of cooperation.  The complaint was found to be without merit and was dismissed.

Area: Employment
Ground: Physical disability
Result: Dismissed at the investigation stage

The complainant was terminated from his employment due to an injury obtained at a second, but concurrent, employer.  The respondent maintained that the complainant had a history of excessive absenteeism and was terminated for that reason.

Conciliation of this complaint was not successful, so an investigation was done.  The investigation found that the respondent had demonstrated a commitment to accommodation.  The respondent had accommodated the complainant for a variety of conditions over several years, and had also followed a process of education and discipline for innocent absenteeism that exceeded company standards.

Further, in this particular case, the complainant had reached the final stage of a disciplinary process and had agreed to a condition of employment where he would be terminated if absent from work.  While the complainant's injury was new and unrelated to any previous accommodation, it was found that the respondent did not have a new duty to accommodate.  This finding was based on the facts that the complainant had been accommodated in the past, had agreed to a strict policy regarding no more absences, and had knowingly chosen to work for a second employer in a high risk profession.  It was therefore found that while the complainant was terminated from his employment based on a physical disability as defined by the Alberta Human Rights Act, it was reasonable and justifiable given the circumstances.  The complaint was dismissed, and the file was closed.

Area: Services
Ground: Physical disability
Result: Resolved voluntarily through conciliation
A woman stated that, upon making a reservation at a hotel, she confirmed that it was accessible to persons with disabilities. Her party, which included a person in a wheelchair, arrived to find there was only limited accessibility. During conciliation, the hotel indicated they had made an error in not specifying the level of accessibility. The complainant was offered and accepted a refund as settlement, and the file was closed.

Area: Services
Ground: Physical disability
Result: Resolved voluntarily through conciliation

A man with impaired vision who uses a guide dog was denied entry to a restaurant. The proprietor indicated that the public would view the dog as unsanitary. The proprietor also said that it was against public health regulations to allow the dog in the restaurant.

During conciliation, the complainant requested that the Commission provide an educational consultation to the restaurant owner and his staff so that they would be better informed about accommodating persons with visual impairment.  The restaurant owner agreed to admit guide dogs into the restaurant in the future.  The complainant and respondent agreed that the owner and his staff could provide the public with printed educational information from the Commission about accommodating persons with disabilities, should they complain about the presence of guide dogs. The complainant was satisfied with this result.

Area: Services
Ground: Physical disability 
Result: Dismissed at the investigation stage

A woman with a disability complained that the transportation system for persons with disabilities refused to pick her up at the time she requested.

Conciliation of this complaint was unsuccessful so an investigation was conducted. The investigation established that although the vehicle did not pick up the woman at the time she requested, the service provider had altered the schedule as much as possible in order to accommodate her.  In addition, the complainant did not show that this was anything more than an inconvenience.  On the basis of all relevant factors, the investigator determined that this inconvenience was no greater for her than for other users of the public transportation system as a whole.  The complaint was found to be without merit and was dismissed.

Area: Services
Ground: Physical disability
Result: Resolved voluntarily through conciliation

A woman complained on behalf of her son, who has Down's syndrome.  She stated that they were denied service and/or accommodation at a trail riding service, but she had previously had no trouble with her son on other similar rides.

Upon receiving the complaint, the respondent explained that although they have staff who are trained to assist people with disabilities, this was a particularly busy day and the staff member reacted pre-emptively by refusing service.  Conciliation ensued, and the respondent readily agreed to a half-day training session for all his summer staff and a policy review by Commission staff.  The complainant was pleased with this result and the file was closed.

Area: Tenancy
Ground: Physical disability
Result: Resolved voluntarily through conciliation

A woman complained that the manager of the apartment building where she and her husband lived refused to accommodate her husband's disability. The woman alleged that the manager neglected to respond to complaints that her husband, who uses crutches, had difficulty entering his vehicle because of the proximity of other vehicles. The manager stated that he had asked the tenants on either side to leave sufficient space for the couple to enter their vehicle, but had difficulty obtaining compliance. During conciliation, the manager agreed to remind tenants to leave sufficient space and repainted the lines marking the complainants' parking stall. Permanent above-ground markers that will remain visible in the winter were also installed to designate the couple's spot. The complainants agreed with these measures and the matter was settled.

Area: Tenancy
Ground: Physical disability
Result: Resolved voluntarily through conciliation

A man with a physical disability claimed that he had experienced discrimination based on the ground of physical disability in the area of tenancy.  He alleged that his landlord failed to accommodate him during a renovation of the apartment building he lived in. The man used a wheelchair.  He required his caregiver to have access to a parking area that could accommodate a wheelchair and that was within reasonable distance from the front door of the apartment.  Such accommodation had been provided prior to the renovations.

The landlord claimed that the complainant failed to provide adequate information regarding his need for accommodation.  During conciliation, the parties agreed to a compromise of disputed matters.  The complainant received $450 and a letter of apology from the respondent.

 For more information on discrimination based on the ground of physical disability, please see the information sheet Mental or physical disabilities and discrimination.

Effective October 1, 2009, the title Chief Commissioner was changed to the Chief of the Commission and Tribunals.

Revised: March 24, 2010 

 


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