Failure to Inform Employer Means No Discrimination

Psychiatrist woman attending a depressed woman who has been terminated

Summary of Case

In Susan Kovios v. Inteleservices Canada Inc. the Applicant, Ms. Susan Kovios, brought a Human Rights Application against her former employer, Inteleservices Canada Inc, alleging discrimination during her employment on the basis of disability. Specifically, Ms. Kovios alleged that Inteleservices failed to accommodate her sensitivity to scents and fragrances in the workplace by failing to enforce its fragrance-free policy. Ms. Kovios alleged that the discrimination occurred during three training sessions when Ms. Kovios was in the same room or sitting next to co-workers who were wearing perfumes and colognes contrary to the fragrance-free policy. These scents, some of which only Ms. Kovios could smell, caused her to feel unwell and prevented her from being able to remain at the workplace. When Ms. Kovios informed Inteleservices of the impact the scents were having on her, Inteleservices attempted to accommodate Ms. Kovios’ disability by providing her with a fan to assist with ventilation, and also relocated her outside of the training room to shadow a co-worker. Despite Inteleservices’ efforts, Ms. Kovios found that the fan made her symptoms worse and that the co-worker she was shadowing was wearing cologne which increased her symptoms. However, Ms. Kovios did not inform Inteleservices that their attempts to accommodate her disability were not satisfactory. Instead, Ms. Kovios told Inteleservices that the job was not working out and that she had no choice but to leave. Shortly thereafter, Ms. Kovios contacted Inteleservices inquiring whether anything could be done to allow her to work. Inteleservices replied by informing Ms. Kovios that there was nothing else available and that they had no further suggestions as to how Ms. Kovios would be able to continue her employment with them.

After hearing testimony from Ms. Kovios and Inteleservices, the Ontario Human Rights Tribunal determined that Ms. Kovios did not experience discrimination in her employment. In reaching this conclusion, the Tribunal considered that Ms. Kovios had a positive obligation to accurately identify to Inteleservices what her accommodation needs were and to clearly explain why the solutions provided by Inteleservices were not adequate. Given that Ms. Kovios did not indicate that she required a work environment free of scents that were not detectable to others and that the solutions provided by Inteleservices were not meeting her needs, Inteleservices could not be expected to provide accommodation for a problem of which they were not fully aware.

Impact of Decision on Employees

The above decision demonstrates the importance of providing an employer with sufficient information regarding an employee’s disability so that the employer is able to provide suitable accommodation. Although an employee may be hesitant to share too much information with their employer with respect to their disability, enough information must be provided so that an employer is able to determine what accommodation, if any, may be provided. Without this information an employer’s conduct may not be discriminatory or be viewed as a failure to accommodate as an employer cannot provide accommodation for a problem that it does not know about.

Impact of Decision of Employers

Although the above decision is favourable to employers, it does not relieve an employer from the duty to accommodate an employee short of undue hardship. However, difficulties may arise for an employer when informed of an employee’s disability, yet not enough information has been provided to permit the employer to accommodate. In such a circumstance, an employer should seek the guidance of an Employment Lawyer to help avoid any claims of discrimination and violations of the Ontario Human Rights Code.

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