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An Employee’s Disclosure of Disability to Employer Will Trigger Duty to Accommodate: Human Rights Tribunal of Ontario

Posted On: January, 21 2015

Machado v. Terrace Ford Lincoln Sales is a recent case from the Human Rights Tribunal of Ontario (the “Tribunal”) confirming that employers must take steps to accommodate employees who disclose their disability, even where no prior request for accommodation is made.

Nicole Machado worked for Terrace Ford Lincoln Sales as a business manager. After five months of employment, she was told that she was being removed from the position due to tardiness and absences from work. Ms. Machado was then offered a sales position with the company, which she considered a demotion.

Soon thereafter, Ms. Machado disclosed to her employer that her lateness and absences from work were caused by her disability, ulcerative colitis. She asked her supervisor to reconsider the demotion, but did not specifically request accommodation. The employer ignored Ms. Machado’s request to remain in the business manager position and told her she had two days to accept the sales position or she would be terminated.

Ms. Machado subsequently went off work due to a flare up of her ulcerative colitis. One week into her sick leave, Ms. Machado was terminated. Ms. Machado had not previously advised her employer about her disability due to her embarrassment about her condition.

According to the Tribunal, the fact that Ms. Machado had not phrased the disclosure of her disability as a request for accommodation was not a sufficient basis for the employer to avoid its duty to accommodate. The employer’s positive duty to take steps to accommodate Ms. Machado’s disability was triggered in this case by her disclosure that her lateness was caused by her disability.

The Tribunal determined that the employer acted hastily in dismissing the applicant. The Tribunal also concluded that the employer should have taken steps to inquire as to how Ms. Machado’s business manager position could be altered to meet her needs.

In the end, the Tribunal awarded Ms. Machado three months retroactive pay, as well as $7500 in human rights damages to compensate for the breach of her right to be free from injury to her dignity, feelings and self-respect.

 

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