By Abisola Omotayo
A recent decision[1] of the BC Human Rights Tribunal emphasizes the need for service providers to accommodate individuals with mental health issues. The case involved the alleged denial of service by a BC restaurant to a person with mental illnesses. The customer alleged that he was denied service because his therapy dog was accompanying him.
The BC Human Rights Tribunal ultimately dismissed the complaint for a lack of evidence. Nevertheless, Tribunal Member Devyn Cousineau recognized the stigma and social isolation experienced by those with mental health issues, such as the customer, in order to “offer a window into how a person with a mental illness might be deprived of the opportunities to participate fully in public life.”
The customer poignantly described the stigma faced by those with mental illness:
“… We are vulnerable. We are not a part of society – we are apart from society. And this happens, and happens, and happens, and you take it, and take it, and take it, and each time you become more insignificant to the point that all you want to do is self-terminate. You just want to die. But I can’t. Because of [my dog]
This decision highlights the duty on all BC service providers to accommodate customers and clients with mental illness. More broadly, it should also remind BC employers of their duty to accommodate the mental health needs of their employees. Under the BC Human Rights Code (the “Code“), employers and service providers are required to accommodate employees and clients with disabilities, including mental health issues, to the point of “undue hardship.” Service providers and employers may have to expend some time, expense, and effort, in order to adapt the workplace or place of service for those with mental health issues.
Accommodating the mental health needs of an employee or client may require some creative thinking or flexibility,[2] but research increasingly shows that doing so pays dividends in employee productivity, reducing turnover and associated costs, and building workplace morale. Supporting employees to be engaged and productive workers makes good business sense.
The Code specifically protects people from discrimination on the basis of a “mental disability.” In the workplace, this means that employers cannot discriminate against employees on the basis of mental health conditions that affect, or are perceived to affect the employee’s abilities.
For example, terminating an employee based on concerns that they are at risk of developing a mental illness would likely be discrimination under the Code. Mental disabilities protected from discrimination also include developmental disabilities, learning disorders, and illnesses such as depression, bipolar disorder and schizophrenia.[3]
An employer is under an additional duty when presented with an employee who may be dealing with mental health issues: a duty to inquire. For example, if an employee suddenly exhibits a change in work performance, or their behaviour at work suddenly becomes erratic, then the employer has a duty to inquire as to what may be behind the sudden change. The duty to inquire can result in having to walk something of a tightrope in balancing this duty with the equally important obligation to respect employee privacy. The key is to foster an open and supportive workplace in which mental health issues can be addressed sensitively and without fear of repercussions.
The stigma surrounding mental health continues to be significant.[4] Yet, given that 1 in 5 Canadians will experience mental health issues in a given year,[5] the need for effective accommodation of employees with mental health needs is both pressing and real.
Accommodations need not be “perfect” and they may have to be implemented over time. But to be meaningful, accommodation should always be guided by input from the person living with mental health issues, and should promote their dignity and autonomy to the greatest extent possible.
[1] Customer v. Restaurant and Manager, 2018 BCHRT 138.
[2] For an informative discussion of the duty of employers’ to accommodate disability in the workplace, see Laura Track’s: “Creating Inclusive Workplaces through Accommodation,” (May 28, 2018), originally published in Visions Magazine and republished as part of the BC Human Rights Clinic’s blog series, Human Rights Matters, available online at:http://www.bchrc.net/creating_inclusive_workplaces_through_accommodation
[3] For a helpful discussion of the definition of mental disability under the B.C. Human Rights Code,
see the information provided on the website of the B.C. Human Rights Tribunal, available online athttp://www.bchrt.gov.bc.ca/human-rights-duties/characteristics.htm#mental
[4] For an interesting discussion of stigma and mental health, see Andrea Woo’s: “Junkie, Addict or Person with a Substance Use Disorder,” available online athttp://www.heretohelp.bc.ca/visions/the-language-we-use-vol14/junkie-addict-or-person-with-a-substance-use-disorder
[5] Canadian Mental Health Association, “Mental health in balance: Ending the healthcare disparity in Canada (Summary Report),” (September 2018), page 1, available online at https://cmha.ca/wp-content/uploads/2018/09/CMHA-Parity-Paper-Summary-Report-EN.pdf