THE EMPLOYERS' EDGE
Fighting Fire with Favour: accommodation efforts for pregnant firefighter did not discriminate on the basis of sex or family status
Ajax (Town) v Ajax Professional Fire Fighters' Assn, Local 1092 (Badame Grievance),  OLAA No 238
the grievor was a pregnant firefighter who alleged that the Town discriminated against her on the basis of sex and family status when they rescheduled her shifts to accommodate her pregnancy.
The grievor was employed in a fire suppression role where she was scheduled to work 24 hour shifts. The grievor’s doctor advised that she could not perform tasks wearing bunker gear and self-contained breathing apparati, or perform salvage or fire suppression. In other words, the grievor’s medical restrictions prevented her from responding to emergency calls which were an essential aspect of the 24 hour shifts.
In an effort to accommodate the grievor, the Town decided to assign her to the day shift where she could still partake in non-emergency work. The Town scheduled the grievor to a four-day-per-week schedule and allowed her to adjust her day off to cover her childcare needs. However, the grievor wanted to continue working the 24 hour shifts but not respond to emergency calls because it was more convenient for her childcare obligations.
Procedural Duty to Accommodate
In addressing whether the Town discriminated against the grievor on the basis of sex and family status, Arbitrator Parmar first addressed whether the Town breached the procedural duty to accommodate. In determining whether an employer has met the procedural duty to accommodate, “the objective is to ensure the employer engaged in a serious effort to consider and assess the issue of accommodation in all the circumstances of the case” (para 94).
Arbitrator Parmar determined that the Town met their procedural duty to accommodate because the Chief inquired about the potential duties the Grievor thought she could perform and was "receptive" to the Grievor's childcare concerns when she raised them in their meetings. The Chief gave consideration to the possible duties she could perform through discussions with Human Resources and Deputy Chiefs.
Substantive Duty to Accommodate
Arbitrator Parmer determined that the Town did not discriminate against the grievor on the basis of sex. If the grievor were to remain on the 24 hour shift, then an additional employee capable of fire suppression would have to be scheduled because there was no form of accommodation possible that would allow the grievor to perform emergency work during her pregnancy.
Importantly, Arbitrator Parmar found that the duty to accommodate did not require the Town to keep the grievor on a shift where she could not perform the essential duties, and that the Town fulfilled its accommodation obligations by placing the grievor on the day shift. Arbitrator Parmar elaborated:
114… the duty to accommodate obliges the employer to arrange the workplace or duties so that the employee can perform his or her job. It is not required to fundamentally change the nature of the work it needs done. Based on the evidence, it is clear that the Grievor's pregnancy-related needs prevented her from performing the duties of a suppression firefighter such that she had to be replaced in the complement. There was no accommodation that would allow the Grievor to perform her job as a suppression firefighter. Therefore, the employer was not obliged to maintain the Grievor in the suppression firefighter position on the 24-hour shift during her pregnancy.
Arbitrator Parmar further ruled that the Town did not discriminate against the grievor on the basis of family status. For the Town’s actions to be discriminatory, the grievor must establish that she suffered adverse treatment or a disadvantage based on her family status. Arbitrator Parmar stated that “[n]ot every disadvantage suffered by a member of a protected group is sufficient to engage the right to equal treatment” (para 145).
The grievor indicated to the Chief that she could find suitable childcare in the event that she was to work on the day shift, but that her current arrangement was preferable. Therefore, the grievor did not suffer a disadvantage related to her family status. Arbitrator Parmar wrote:
148 The fact that the Grievor wanted childcare in a different structure to address the specific manner in which she and her husband wished to raise their son is not a disadvantage based on her family status.
This decision highlights a number of the important principles of accommodation, and, in our view, gets them all correct:
- The duty to accommodate contains both procedural and substantive aspects.
- The objective of the procedural aspect it to ensure the employer has engaged in a serious effort to consider the appropriate accommodation in the circumstances of that particular employee.
- Even with the aid of accommodation, employees must still be able to perform the essential duties of the job. Otherwise accommodation may constitute undue hardship on the employer.
- The substantive duty to accommodate does not require an employer to hire another worker to work alongside the accommodated employee.
- The duty to accommodate requires only that the employer provide reasonable accommodation, and does not dictate that the employee is necessarily entitled to his or her preferred accommodation.In other words, as long as the proposed accommodation meets the restrictions of the employee, the employer is entitled to accommodate in the way that best suits its operational needs.
The team at CCPartners is well versed in all issues related to discrimination and accommodation and can assist employers in their efforts to fulfill both the procedural and substantive aspects of the duty to accommodate.
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