Is your Body your Employer’s Business?: Assistive Devices and the Duty to Accommodate

By Janina Fogels

As we move towards an understanding of “disability” as socially constructed rather than innate or essential, accommodation law has also recognized that employers should provide technological devices for employees with physical, intellectual or sensory impairments or functional limitations, to enable performance close to or at the same level as able-bodied employees. A recent decision by the Board of Arbitration in Elementary Teachers’ Federation of Ontario v. Toronto District School Board (Mootilal), [2007] O.L.A.A. No. 341 confuses the obligation by differentiating between “personal” and “work-related” assistive devices.

A. Facts

In December 2004, ETFO filed a grievance on behalf of a special needs teacher with 70% hearing loss. The Toronto District School Board teacher began wearing hearing aids as a child. She compensated for her hearing loss by also lip reading and using sign language.
In 2002, the grievor replaced her analog hearing aid with a digital set. She found these more useful because they filtered out white and background noise. In the teaching environment this enhanced her performance since she was often with large groups of students or staff in noisy areas. As well, her students with special needs required individualized attention and often became discouraged when she couldn’t hear them because of the general noise level in the classroom.

The new hearing aids improved her performance. She could now focus on individual voices. She could hear what her students were saying even when her back was turned towards them, and could respond to questions much faster.

After a month of use, the grievor returned the hearing aids because she could not afford them. The benefit plan in the collective agreement provided for a one-time maximum benefit of $400 for hearing aids, which she had already used up on a previous set in 1997. A government Assistive Devices fund provided another $1,000 but she still owed $2,470 to the supplier.

B. Arguments

ETFO argued that the TDSB had a duty to accommodate the grievor's disability and as such, it was obliged to supply the digital hearing aids because these were necessary for the performance of her employment duties. The Union took issue with the $400 lifetime hearing aid benefit and said the refusal to purchase the improved hearing aids was a discriminatory “policy” that denied her the ability to perform her job. The policy, the Union argued, could not be justified as a bona fide occupational requirement (BFOR) under the analysis in the Supreme Court's decision in Meiorin, [1993] 3 S.C.R. 3 since the School Board had not established that purchasing these hearing aids would be an undue hardship. The Union relied on the decision to assert that the School Board could only justify its alleged discriminatory policy if it could establish that the decision not to equip the grievor with the hearing aids was a bona fide occupational requirement.

The School Board responded that the grievor performed her job very well and was not in need of accommodation. Even if she were, the duty to accommodate disability did not force the employer to provide perfect accommodation.

The School Board also argued that the one-time $400 benefit was negotiated as part of the collective agreement. The policy not to pay more than that amount was not discriminatory since all employees with health care benefits were treated the same (i.e., everyone received the same amount, regardless of need).

Furthermore, and importantly, the School Board took the position that providing “personal assistive devices” for life-functioning outside the workplace was not part of its duty to its employees.

C. Decision

Problematically, the Chair of the Board of arbitration, Pamela Picher, denied the grievance on the threshold issue that the employer’s duty to accommodate does not oblige the employer to pay for what she deemed “personal assistive devices”. The majority reasoned that accommodating a disabled employee did not have to extend beyond modifications to the workplace to encompass modifications to the worker. Picher observed that “[a]n employee’s body, generally, is not the employer’s business”.

Picher also decided that the Meiorin analysis did not apply to the decision not to fund the hearing aid. The employer’s decision to not help fund or purchase the digital hearing aids was not a “policy” for a standard for the performance of work, or a norm, benchmark, measure or criterion imposed by the employer as a requirement for employment or continued employment. The decision did not set up a barrier based on disability against a disabled employee’s entitlement to work. Therefore, the Board did not accept the Union’s submission that the three-step test in Meiorin ought to be triggered.

Finally, the Board also stated that the collective agreement established negotiated benefit levels for all employees. The School Board could not contract out of its capped benefit clause.

D. Analysis: Whose business is it?

Like it or not, disability is personal, and disability is bodily; accommodating disability and allowing us to work to our full abilities and in a dignified way involves scrutiny of the body, as it interacts with tools and devices at work. It may well be that a prosthetic limb (or the even easier example – eyeglasses) cannot be classified in the same manner as a digital hearing aid. But at what point does a device such as a specialized hearing aid to drown out background noise cease to become a workplace tool and turn into a personal tool? Compare, for example, an employee with Repetitive Strain Injury who brought her tablet computer to and from the workplace, or a visually-impaired employee who carried a cell phone with a light-ring indicator and large buttons? Whether or not the device stays or goes with the employee seems to be an arbitrary distinction. And here, the grievor was prepared to leave the hearing ads at school if that were necessary for her to become eligible for the funding.

The Board’s approach presumes that a bright line can be drawn between technological equipment and the body. Many decided cases of accommodation have included masks, voice-activated software, headsets, and other tools, aids, devices and technologies which interface directly with the body. The Board relied on the fact that the assistive device was “available in the marketplace” and “help[ed] a person take part in life’s normal functions”. But if work is such a large and substantial part of life, should it not be folded into “life’s normal functions”? Did the Board’s reasoning fall back onto the impugned public/private divide? To be fair, the Board doubled back and pointed out that the issue of whether the grievor in fact needed accommodation had not been sufficiently explored by the School Board in consultation with the grievor and the Union. The Board directed the parties to discuss the matters, and recommended that the employer facilitate her purchase of the digital hearing aids through the arrangement of favourable financing and a reasonable repayment schedule.

Our government very recently signed the United Nations’ Convention on the Rights of Persons with Disabilities. Once ratified, the Convention will hold Canada accountable on for compliance with the Convention through periodic reports to the UN Committee on the Rights of Persons with Disabilities. This new international human rights instrument expresses very clearly that persons with disabilities’ mobility and independence are to be fostered by facilitating access to mobility aids, devices, assistive technologies and live assistance at an affordable cost (Article 20). Whether we have succeeded in devising one category of “personal” devices out of the reach of employees and another category of accessible workplace devices remains entirely unclear.

E. What the Case Means for Employees with Disabilities and their Advocates

This case raises a number of questions that advocates for workers with disabilities will have to deal with in the future, and obstacles that will need to be overcome through principled legal arguments:

• Is the distinction between “personal assistive devices” and “work related assistive devices” tenable?
• How can this decision be distinguished in future assistive device cases?
• How can advocates use the protections set out in the United Nations’ Convention on the Rights of Persons with Disabilities as leverage for legal arguments on behalf of employees who require assistive devices?
• Does the Meorin BFOR analysis only apply to workplace “standards”, as suggested in this judgment? If so, then what is the appropriate analysis for other workplace policies, programs, rules, and benefits?