Why medical specialist lost human rights challenge
Among many other things, human rights codes across the country prohibit discrimination in employment on the basis of a disability.
If an employee cannot perform all aspects of their job, the employer has to find a way to accommodate them.
The only defence available to the employer is to establish that: 1) the task the employee cannot do is a reasonable and bona fide part of the job; and 2) it would be an undue hardship on the employer to accommodate that limitation.
This can be a very difficult test for the employer to meet. As a recent New Brunswick case shows, however, it’s not impossible.
A urologist, to whom we will refer as Shivago, worked at the local hospital for many years.
The deal was always that the four urologists there would share the available operating room time, one of the primary ways they achieved their billings, and also share the oncall evening shifts.
Somebody had to be available to deal with post-operative care and other emergencies.
In many respects, it was a deal between the four as much as it was a deal between them and the hospital. Each had a professional obligation to provide followup care and emergency care to their patients but, of course, no one wanted to be on call all the time. So they shared.
After many years of this arrangement, Shivago started to have health problems and indicated that as of a few months later, on his 65th birthday, he was no longer going to do on-call as a result of those issues.
The department head told him if that was the case, his available time to be scheduled in the operating room would be decreased. Shivago’s colleagues were not prepared to commit indefinitely to increased on-call time to cover for him.
Shivago filed a complaint with the Human Rights Commission, and the matter went to a hearing. He claimed he had been discriminated against on the basis of his disability and that the employer had failed to accommodate him to the point of undue hardship. He said the hospital should not have decreased his operating-room time just because his health would not allow him to do the on-call work.
The primary factual reality that drove this case was that in New Brunswick — and, I would think, across the country — there are no fully-trained urologists sitting around waiting for a few hours of work. Hospitals have to recruit them, and part of that process is promising them a reasonable amount of time in the operating room in a very limited schedule.
Shivago wanted to keep his operating time but not the on-call work. Recruiting a trained urologist and telling them they have to do on-call work but will not get much in the way of billings in the operating room would be almost impossible.
The Human Rights Commission had no trouble finding that doing on-call time was a bona fide, legitimate, part of the job. Given the scarcity of the skill set, such accommodation would have been an undue hardship. Requiring Shivago’s hospital and colleagues to allow him the OR time without the on-call time would have put an incredible burden on his colleagues.
Before any employers reading this try to analogize to a situation they may be facing, consider that these are rarefied circumstances.
Most of us are fairly replaceable. Not to diminish anyone’s profession, but by comparison, if you have 10 appliance repair people working for you and one cannot do afterhours calls for health reasons, that would be quite different. There are more people to spread the work around, and even if there were not, you would have to prove that it was impossible to find qualified appliance repair people to fill in.
A fact-finder would expect that the position was advertised extensively and no qualified applicants applied.
Having passed that hurdle, the employer would have to prove that there was, or was going to be, significant economic impacts for the company, and not just a marginal loss of profit. That is easier to establish if it is a small operation.
There is no perfect answer or perfect way to deal with accommodating an employee who cannot do all, or any of the job for a certain period. Inevitably, it impacts the people that work with them.
If you are one of those people left behind carrying the load, try to put yourself in the disabled person’s shoes.
Then be grateful that you are not actually filling them.