Oct 4, 2017

Alberta Human Rights Tribunal reminds employers to consider accommodation of job applicants

Nolting v 847012 Alberta Ltd. (Prime West Contracting), 2017 CanLII 44446 (AB HRC)

The Alberta Human Rights Tribunal decision in Nolting v 847012 Alberta Ltd. o/a Prime West Contracting(the “Decision”) serves as an important reminder to employers to carefully consider accommodation options, and where accommodation is expected or alleged to cause undue financial hardship, to ensure that this is supported by evidence.

Renée Nolting applied for a job with the respondent’s paving business. Shortly after submitting the application, Ms. Nolting was contacted by Mr. Thibodeau, principal of the respondent, who was surprised to discover that Renée was a woman. Mr. Thibodeau indicated that he did not want to hire a woman, as this would result in the need to pay for an additional hotel room. The short telephone call became slightly heated and Ms. Nolting threatened to report the respondent. Ultimately, Ms. Nolting filed the human rights complaint that led to the Decision.

During the proceedings, Mr. Thibodeau advised that while he had hired women in the past for work in town, at the time of Ms. Nolting’s application, he needed to hire a male employee so that when the respondent’s employees needed to stay near an out-of-town worksite, the three male employees (other than Mr. Thibodeau and his wife) could stay in one hotel room. Mr. Thibodeau’s position was that a woman would require her own hotel room, and that the respondent could not incur the increased cost associated with providing additional lodging.

Mr. Thibodeau acknowledged that he refused to hire Ms. Nolting because she was a woman, and therefore a prima facie case of discrimination was made out. The burden then shifted to the respondent to demonstrate that its refusal arose from a “bona fide occupational requirement” based on a three-part test:

  1. Was the standard adopted for a purpose rationally connected to the performance of the job?
  2. Was the standard adopted in an honest and good faith belief that it was necessary for this work-related purpose, without an intention of discriminating? And
  3. Was the standard reasonably necessary to fulfill the legitimate work-related purpose? (Would accommodating the complainant cause the respondent undue hardship?)

The Tribunal found that the respondent had satisfied the first two steps of the test. The Tribunal accepted that the respondent’s standard (a male-only crew) was adopted for managing lodging in a cost-effective manner and was therefore rationally connected to the job, and accepted that this was not motivated by discriminatory intent. However, the Tribunal found that the respondent had failed to satisfy the third part of the test.

The Tribunal found that the respondent’s male-only crew rule was not reasonably necessary, and would not have achieved the respondent’s purpose in all cases. The Tribunal noted that while traditionally it has been considered acceptable for members of the same gender to share a hotel room, it should not be assumed that this will work in all instances; and conversely, while it has traditionally been unacceptable for members of different genders to share accommodations, this does not mean that it may never be appropriate.

The Tribunal also found that the respondent had failed to demonstrate that he had met the duty to accommodate. First of all, the respondent immediately refused to hire Ms. Nolting without any prior consideration of possible accommodation. Mr. Thibodeau did not consider alternative accommodation strategies, such as paying each employee an accommodation stipend to arrange their own lodging, or looking into suite hotels that may have provided alternate room configurations at a lesser cost than two separate hotel rooms. Secondly, the respondent did not provide sufficient evidence to prove, on a balance of probabilities, that accommodating Ms. Nolting would have resulted in undue hardship to the respondent. Mr. Thibodeau provided no supporting evidence for his belief that the accommodation would have cost an additional $120 per night, or $6000 per year, nor did he provide sufficient evidence that the respondent would have been unable to absorb the additional cost of accommodation, noting that the $6000 estimate would have resulted in accommodation costs totalling less than 1% of the respondent’s costs and expenses for the year.

The Tribunal awarded $8,500 in general damages plus interest, finding that the respondent’s reckless behaviour and blanket refusal to hire women was harmful to the dignity of women. The Tribunal found that these damages would have been higher if Ms. Nolting had suffered lasting emotional difficulties, noting that although she had been upset by Mr. Thibodeau’s comments, she had persevered and obtained employment within a week.

The Tribunal was discouraged by comments made by Mr. Thibodeau during the proceedings and commented that “five years later and having gone through the process of responding to a human rights complaint, he has not grasped the extent of his company’s obligations as an employer under the Act, and is not particularly interested in doing so” (para 73). The Tribunal ordered the respondent to immediately cease discriminating on the basis of gender and refrain from doing so going forward, and directed a member of the respondent responsible for human resources to attend, within 120 days and at the respondent’s expense, a workshop or other education program presented by the Alberta Human Rights Commission regarding human rights in the workplace. Lastly, the Tribunal ordered the respondent to pay $100 in costs for failing to comply with the Tribunal’s Order to produce all financial records of the respondent on which it intended to rely by a specific deadline, which non-compliance had resulted in a brief adjournment of the hearing.

A checklist for employers

This decision is a straight-forward case that provides a number of important lessons to employers during the hiring process:

  • Consider whether you have an employment standard that discriminates against one of the protected grounds in the Alberta Human Rights Act;
  • If it is, take the time to consider whether it is a good faith occupational requirement:
    • Is the standard rationally connected to a legitimate business purpose?
    • Was the standard adopted in good faith, and not with the intention of discriminating?
    • Was the standard reasonably necessary to achieve the legitimate business purpose? Consider whether your standard is based on assumptions, including traditional values, that may not apply in all cases.
  • Consider what possible alternatives there are to accommodate the candidate:
    • Evaluate these alternatives and consider the implications, financial and otherwise, to the employer from carrying out the accommodation. Would it place significant difficulty or expense on the employer?
    • Understand that if a complaint (or civil claim) is filed, you will be required to back up your findings with supporting evidence. As a best practice, “run the numbers” before making your final decision, and ensure that if you are alleging financial hardship, the financials back up this claim.

Employers are encouraged to consider the occupational requirements for any positions in advance of any hiring processes, which will allow the employer to assess and address any potential grounds for discrimination before they occur.