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When does an employer’s accommodation actions become harassment?

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When an employee requires accommodation following an injury or onset of a disability, an employer is often unsure where to draw the line in their communications and interactions with the employee. Accommodation is a collaborative process and it is important that the employer receives information and cooperation from the employee. At the same time, employees sometimes feel harassed when faced with constant requests for medical and other information, and when subjected to scrutiny by their employer. A recent decision of the Canadian Human Rights Tribunal, Croteau v. Canadian National Railway Company, 2014 CHRT 16 (CanLII), provides employers with insight, and perhaps some comfort, relating to where the line can be drawn.

The complainant, Mr. Croteau, started working for CN in 1992 and by 2003 was in the role of train conductor. In 2003, Mr. Croteau suffered an injury outside the workplace. Mr. Croteau’s subsequent human rights complaint included 11 allegations of harassment between 2003 – 2007 (two of which were dismissed for lack of a prima facie case) and a continuing allegation of failure to accommodate from 2004 to the end of the hearing in 2013.

The scope of his complaint of harassment was described as follows:

The essential substance of Mr. Croteau’s case includes allegations of a continuous pattern of harassment and behaviour by the Respondent that started in 2003 and continues to the present.  It is Mr. Croteau’s contention that he was singled out and harassed, his character falsely impugned and his and his family’s privacy invaded in violation of his privacy rights by CN because of the fact that he needed medical leave for a personal medical issue in 2003 and also due to two workplace injuries in 2004.  The first injury affected his shoulder and the second his knee.

The nine allegations considered by the Tribunal can be summarized as follows:

  1. After Mr. Croteau requested a Short Term Disability (“STD”) form relating to his 2003 personal injury, a CN employee referred to as “KS” insisted on knowing what the personal medical issue was and was rude and persistent and got increasingly angry with Mr. Croteau when he would not tell her.
  1. Croteau was subjected to an investigation meeting relating to an operational policy violation that he believed was instigated by KS, and was told during the meeting that he could be fired for lack of attendance under that policy.
  1. In January 2004, following a workplace injury, Mr. Croteau was asked by KS to re-enact the injury and was subjected to an interrogation about the incident.
  1. In March 2004, following another workplace injury, Mr. Croteau was questioned by KS about the injury and criticized for his accident/injury record, which was 12 injuries in 10 years.
  1. Following the two 2004 injuries, CN used an outside private investigation firm to conduct video surveillance of Mr. Croteau during his absence.
  1. In May 2004, during a meeting to discuss Mr. Croteau’s 20-day absence in March, a CN employee played the surveillance footage for him, which included footage of his home, wife and children. Mr. Croteau felt that the meeting itself was a form of harassment, as were comments made to him during the meeting about the surveillance.
  1. Despite being told previously by a supervisor that CN would reimburse his education tuition, he was told in July 2004 that CN would not reimburse the tuition and was told reimbursement depended on whether an individual is “promotable” and that he had “to display the proper management techniques, come to work, be productive, not hurt yourself, and that’s all part of being a manager.”
  1. CN management relied improperly on hearsay and misinformation from Human Resources in deciding to deny Mr. Croteau’s tuition reimbursement.
  1. Croteau received a 14-day deferred suspension for his failure to contact CN during the 20-day “AWOL period” following his second workplace injury in March 2004.

In considering the allegations, the Tribunal described the definition of harassment as follows:

Any words or conduct that is unwelcome or ought to be known to be unwelcome (from an objective standard) based on a prohibited ground…If the test were merely from the subjective, personal belief of complainants, it would be very difficult for respondents to mount a successful defence…It is important to recognize when dealing with allegations of “disability harassment” that it denotes more than just being uncomfortable or offended in the sometimes difficult, sensitive discussions between management and employees…The key is to examine whether the conduct has violated the dignity of the employee from an objective perspective such that it has created a hostile or poisoned work environment.

Ultimately the Tribunal considered the evidence of the harassment allegations individually and in aggregate and found no violation of Mr. Croteau’s rights under section 14 of the CHRA prohibiting harassment.

While some of the Tribunal’s conclusions rested primarily on credibility, other conclusions suggested that employers will be given some leeway in dealing with employees following an injury or onset of disability. For example, with regard to the first allegation relating to KS’s reaction to Mr. Croteau’s request for an STD form, the Tribunal wrote:

It is possible that on November 19, 2003 KS was being nosey, curious to know the personal medical reason for the form-request and asked Mr. Croteau to disclose it.  However, based on my credibility and reliability concerns regarding the Complainant, and having heard KS’s testimony, on a balance of probabilities I find that it is more likely that she was aggressive, assertive, impatient or even rude during that in-office conversation with Mr. Croteau, including when ascertaining whether the illness was work related or not, but did not ask him to disclose the personal medical issue.

In other instances, the Tribunal found that when the employer was engaged in meetings or processes that were standard parts of a non-discriminatory CN policy, those actions could not be construed as harassment within the meaning of the Act. For example, the Tribunal wrote that the December 2003 comment that Mr. Croteau could be fired pursuant to a non-discriminatory CN policy for lack of attendance was “essentially made in line with best practices which require managers to keep their employees informed of the consequences of breaches of (non-discriminatory) policies, in this case dealing with attendance.  There was no animus or threat, express or implied, here.” The requirement by KS that Mr. Croteau re-enact his injury was described as “KS following standard CN policy when an injury was reported.”

With regard to KS questioning Mr. Croteau following his second injury in 2004, the Tribunal wrote:

KS had questioned the bona fides of his injury based on how he said and wrote that it happened: i.e., he twisted his knee while de-training vs. after de-training.  I am not suggesting that Mr. Croteau was less than honest about this.  And there is a semantical aspect to this issue.  However, I find that KS was not unreasonable in questioning him and even having doubts about the veracity of his reporting given the apparent contradictions in his versions.  If this had been his first injury in ten years, I might have viewed it differently, but this was his 12th injury in 10 years, and his 2nd in 2 months.  Furthermore, it was her job…to question such matters.  I heard evidence in the hearing that it was not uncommon for employees to try to avoid responsibility for injuries.  I am not suggesting Mr. Croteau did this, simply that, given the circumstances, it was not unreasonable for KS to question him and certainly not harassment based on the prohibited ground of disability under the CHRA.

Additionally, the decision to place Mr. Croteau under surveillance, which had a significant negative impact on Mr. Croteau’s mental health, was seen as justified given that Mr. Croteau provided conflicting medical notes from two different doctors following his second 2004 injury and then did not communicate directly with his employer for a 20-day period. The Tribunal wrote:

I find no CHRA violation in the ordering of the surveillance, nor in the methods of the third party private investigator.  Clearly KS and her superiors were suspicious of the bona fides of Mr. Croteau’s absences and injury.  They had reasonable grounds for their suspicions, based on the sequence of events including the changing content of doctors’ notes, the difficulty in reaching him, etc.  There is no harassment based on the prohibited ground of disability here.

Lastly, in considering the decision to deny Mr. Croteau’s tuition reimbursement, the Tribunal considered the events leading up to the denial and concluded:

I accept that, due to the events that had transpired, CN management (at the Assistant Superintendent level or higher) did not believe Mr. Croteau was displaying “promotable” behaviour or was of management calibre, at that time… For example, while communicating through the Union is not improper, from CN’s perspective it was probably not “good management practice”.  In other words, an employee that wants to become management, but is afraid to deal directly with management is not “good management material”.  Mr. Bolter argues that TC made “erroneous assumptions” and the “employer reneged on the agreement for the wrong reasons” constituting harassment.  That may well be true vis-à-vis the first two parts of his submission, but not the third: I find no harassing behaviour based on disability here.

While some of Mr. Croteau’s allegations at first glance may appear troubling in light of the definition of harassment and the offense taken by Mr. Croteau to CN’s requests and decisions, the Tribunal indicated a willingness to look at the actions in context and determine whether they indicated harassment or, as the findings suggest here, the actions of an employer seeking to manage its employees, and to monitor and enforce rules in the workplace. When faced with a request for accommodation, an employer should ensure that it is meeting its side of the bargain in seeking solutions with its employee. However, if the employer feels that the employee is not doing the same then they are well within their rights to ask questions, gather additional information and enforce other workplace expectations and requirements.

Cory Boyd

About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.