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Exacerbating a disability may be discriminatory though causing a disability is not

An employer’s actions that exacerbate an employee’s disability may be discriminatory, even though an employer’s actions that cause a disability are not, according to BC’s Human Rights Tribunal.

In 2020 BCHRT 148, the complainant alleged that the employer failed to protect her from exposure to situations which eventually caused a recurrence of her pre-existing PTSD. The employer applied to dismiss the complaint on the basis that it had no reasonable prospect of success.

One of the employer’s arguments was that an employer’s actions or omissions that cause a disability are not considered discriminatory under the Human Rights Code. Therefore the complainant’s claim, alleging that the employer’s actions or omissions exacerbated her disability, could not succeed. As previously held by the Tribunal in 2009 BCHRT 219, conduct that causes a disability may be actionable on other grounds, but does not (on its own) qualify as discrimination under the Code:

[T]he fact that particular conduct results in an individual experiencing stress and anxiety, or even a mental disability, does not mean that that conduct constitutes discrimination on the grounds of mental disability. [The complainant]’s allegation is that the respondents caused her to suffer stress and anxiety, not that they discriminated against her because of or in relation to the stress and anxiety she alleges she experienced. An allegation of intentional infliction of mental distress of the kind [the complainant] makes might be a tort or some other kind of legal wrong; it is not a human rights complaint.

However, the Tribunal distinguished between conduct that causes a disability versus conduct that exacerbates a disability. In the present case, the complainant alleged that the employer was already aware of her pre-existing disability when the exacerbation occurred. Presuming this to be true, then the employer’s duty to accommodate may have already been triggered before the events occurred that exacerbated the employee’s disability. The Tribunal’s conclusion is summarized at para 65:

While [the employer] is correct in arguing that ‘causing’ a disability is not discrimination, exacerbating one can be. In this case, [the complainant] argues that [the employer] knew or ought to have known that she has PTSD and was thus uniquely sensitive to feeling unsafe; that she characterized the ongoing problem with the Patron – culminating in the November Incident – as making her feel unsafe; and her reports about the situation beginning in July triggered a duty to accommodate her…

The employer’s application to dismiss the complaint on the basis that it had no reasonable prospect of success was denied.