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Employers Do Not Always Have to Inquire About Mental Disability
Cliff v Her Majesty the Queen in Right of Alberta (Human Services), 2021 AHRC 190 is a new Alberta Human Rights Tribunal decision where an employer sought performance improvement of a mentally disabled employee, without asking if the poor performance was connected to her disability. The employee subjectively felt attacked. She resigned and sued, claiming discrimination. The claim of discrimination was ultimately dismissed.
Cliff v HMQ Alberta is an interesting and important case in Alberta because it sheds light on the scope of an employer’s duty to inquire about an employee’s medical disability.
These are the pertinent facts in this case:
- The complainant employee worked as an administrative staff supervisor
- Shortly after starting with her employer, she experienced a traumatic family tragedy that led to the development of a mental disability
- She required a significant amount of time away from work over a period of 2 years, and she was accommodated during that time
- She had tried unsuccessfully to return to work several times
- She finally returned in 2016, with reduced hours and duties
- Just prior to returning, she sent an email to her managers with a list of concerns she had about the workplace. On her first day back, her managers tried to address the issues, but they disagreed about one in particular and the complainant had a panic attack
- She filed a respectful workplace complaint, but it was dismissed on the basis that it was not a situation of bullying or harassment, but a “relationship that was broken down”
- The managers honestly tried to understand the employee’s concerns, but there were several miscommunications between them and the employee. For example:
- In the employee’s concern email, she had said that her counterpart with the same role had a lower workload. Her counterpart had supervised an area they called “IPAC”. The managers understood this particular gripe to be a request to supervise IPAC, so they assigned the complainant to it. The complainant did not feel she had requested it, and was overwhelmed by the new role
- The managers would try to coach the complainant to improve, and the complainant saw this as unfair criticism
- The employee had expressed an interest in a demotion, but had never suggested that this was something she needed for accommodation of a disability. The employer refused to demote her, because it liked the structure the way it was
- The employee was struggling with her role. The employee, employer and union agreed they would put together a learning plan to help the complainant in her role
- The employee obtained a medical note after that meeting which cleared her to return to full duties
- The employer’s draft learning plan identified areas that required improvement, and actions like coursework to help with it. When it was presented to the employee, she felt it was disciplinary, rather than supportive
- The employee resigned. She sued in human rights, claiming that the employer had discriminated against her on the basis of her mental disability, which she said caused her to resign
Analysis / Conclusion
The Alberta Human Rights Tribunal dismissed the complaint, finding that the employer had not discriminated against the employee. The reasoning was that the employer was not aware that the disability might be a factor in the poor performance, and that the employer was genuinely trying to help the employee.
A major part of the AHRT’s analysis was about whether or not the employer had duty to inquire with the employee about whether her disability was a factor in her poor performance. The AHRT found that the employer did not have a duty to inquire in this particular case, reasoning as follows:
 This Tribunal, and other human rights adjudicators, have accepted that an employer has a duty to inquire in certain circumstances. The duty to inquire is not a standalone duty, however. It arises when the respondent knew or reasonably ought to have known that there was a nexus between the employee’s performance and a disability. It most often arises when the complainant is unaware of the extent of or the existence of the disability itself, but the complainant’s conduct is noticeable to others as something that might be connected to a disability. It is an exception to the general principle that an employee has a duty to disclose relevant information and to participate in the accommodation process, including by requesting accommodation.
 The duty to inquire often arises when a complainant does not have the ability to recognize their own disability, but the respondent does. Here, this was the other way around. The complainant felt in her own mind that her disability impacted her work, but she did not communicate that or obtain medical information to support her belief. The information the respondent had was regular, ongoing medical notes suggesting that the complainant was medically fit to work. The responsibility in this case was on the complainant to raise the issue of the disability, obtain supporting medical information, and request accommodation. She did not do any of this. Her suggestions for demotion or changes to her work were all framed in terms of operational expediency or personal preference, and in the context of medical notes indicating fitness to work.
 Here, it was not evident from the nature of the work or the complainant’s struggles with her role that her disability affected her performance. The medical information that the complainant provided indicated that no accommodation was necessary. On these facts, it would have been intrusive and inappropriate for the respondent to embark on an unspecified inquiry into the complainant’s health.
This is an interesting decision, and quite favorable to employers. Human rights accommodation of mental disabilities is a very challenging area for employers and employees alike. The area is fraught with a mixture of distrust, misunderstandings, and stigma.
The adjudicator in this case clearly felt the employer was being honest and genuine in its efforts. It is good to see at least some employers taking accommodation seriously.
However, in many cases employers are not being quite so honest and genuine. Many employers will impose discipline and performance plans on employees, knowing full well that the performance may be (or clearly is) connected to a disability. This case does not change the well-established law that such willful blindness is still quite clearly discriminatory.
A published copy of Cliff v HMQ Alberta, 2021 AHRC 190 can be found at the following link: https://www.canlii.org/en/ab/abhrc/doc/2021/2021ahrc190/2021ahrc190.html?autocompleteStr=2021%20AHRC%20190%20&autocompletePos=1
Bow River Law specializes in Alberta human rights (discrimination), employment law, and labour law.