Workplace Wire

By:  Shane D. Todd and Kevin MacNeill

A recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”) highlights the difficulties that employers may face when dealing with employees claiming accommodation needs based on Adult Attention Deficit Hyperactivity Disorder (“ADHD”). At the same time, the decision provides some guidance as to when an employer will or will not be on constructive notice of an employee’s accommodation needs due to mental disabilities. The decision also provides an occasion for employers to reflect on controversy in the psychiatric community over the validity of certain ADHD diagnoses, and how employers may take steps to critically approach doubtful cases in compliance with legal obligations under human rights laws.

The Human Rights Tribunal’s Decision

In Stewart v. Ontario (Government Services), the Applicant was dismissed from employment as a project manager with the Government of Ontario based on her poor performance.  After her dismissal, she filed an application with the Tribunal alleging that she was discriminated against on the basis of disability, family status, marital status, age, and association with a person identified by a protected ground.  Specifically, she alleged that she was:

• harassed because of her age, her spouse’s disability, her own disabilities, and her children’s disabilities;
• discriminated against in decisions about vacation timing that adversely and negatively affected her due to her spouse’s disability;
• not accommodated with respect to her “processing learning disorder” and ADHD; and,
• terminated contrary to the Ontario Human Rights Code (“Code”) because her dismissal was the result of the failure to accommodate her disabilities, or was the culmination of the course of harassment she suffered.

The employer asked the Tribunal to dismiss the application on a preliminary basis, arguing that the Applicant could not prove a link between protected grounds under the Code, and the employer’s alleged actions.

Following a summary hearing, the Tribunal found a sufficient nexus between the employer’s treatment of the Applicant and her disability, marital status, family status and association with a person identified by a protected ground to warrant a full hearing.  This was because the Applicant provided some evidence that her manager’s treatment of her changed after she disclosed the fact that her husband and daughters were disabled, and after her manager became aware, or ought to have become aware of the fact that the Applicant was suffering from situational depression.  On this latter point, there was evidence that managers referred the Applicant to an employee assistance program after seeing her crying at work.

However, the Tribunal also found that there was no reasonable prospect of success in relation to the Applicant’s allegations that she was discriminated against on the basis of her processing learning disorder and ADHD.  The Applicant admitted that she did not disclose the existence of these disorders to her employer, but argued that the employer ought to have known about them because of her behavior at work.  Specifically, her expressed preference for visual learning aids, difficulties with pronunciations and acronyms, her statements that her children had learning disabilities, and her performance problems, such as not being organized, being forgetful, failing to stay on task, and displaying poor time management skills.  The Applicant noted that these performance issues were documented by the employer in her performance evaluation, and a performance improvement plan.  The Applicant argued that the employer’s clear knowledge of these workplace behaviors was sufficient to trigger the duty to inquire about her accommodation needs, as part of the procedural branch of the duty to accommodate.

The Tribunal disagreed.  It found that without clearer information connecting the Applicant’s behavior to her disabilities, it was reasonable for the employer to conclude that she was struggling with her job, and that her performance problems were skills-based.  This was particularly true in the employer’s workplace where the Applicant’s own assertions established that staff was aware of human rights obligations, and accommodations based on Code protected grounds were routinely requested and granted.

Accordingly, the Tribunal dismissed the allegation that the employer failed to accommodate the Applicant’s processing learning disorder and ADHD.  The Tribunal also dismissed the allegations that the termination was the direct result of the failure to accommodate the Applicant’s disability.  The Tribunal noted that in the absence of the duty to accommodate, the employer had no obligation under the Code to offer support to help the Applicant improve her performance and thereby avoid termination.

The remainder of the application was ordered to proceed through the Tribunal’s process in the normal course.

The Difficulty with Adult ADHD

The decision is notable because it reaffirms the principle that evidence of performance problems will not necessarily trigger the duty to accommodate, notably when it is not clear that there is a connection between a Code protected ground and the performance problems.

It is also notable because the Applicant relied on adult ADHD as a disability under the Code.  Some prominent psychiatrists have suggested that we may be on the cusp of seeing an increase in cases involving adult ADHD based on loosened diagnostic criteria under the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”), which is used by clinicians to diagnose mental disorders.

In his recent book, Saving Normal:  An Insider’s Revolt Against Out-of-Control Psychiatric Diagnosis, DSM-5, Big Pharma, and the Medicalization of Ordinary Life, psychiatrist Dr. Allen Frances argues that DSM-5 has, without sound scientific basis, loosened diagnostic criteria to an inappropriate degree for a number of disorders, including ADHD.  Dr. Frances’ views are significant not only because of his professional qualifications, but also because he was the chair of the task force that developed the fourth edition of the DSM.  Dr. Frances writes:

“The easy path to adult ADHD suggested by DSM-5 will mislabel many normal people who are dissatisfied with their ability to concentrate and get their work done, especially when they feel bored and don’t like the work they’re doing.”

Dr. Frances’ comments raise the possibility that some individuals, suffering from everyday loss of concentration and difficulties at work, may be misclassified as having adult ADHD.  They also raise the possibility that some people may fake symptoms for an ADHD diagnosis to obtain a perceived advantage from accommodation, or access to stimulant medications for misuse.  It is not as farfetched as it sounds.  According to recent studies, the symptoms of ADHD can be believably faked, and as many as 1 in 4 adult Americans claiming to have ADHD may be faking it.

What Can an Employer Do When Faced with a Questionable Accommodation Request or Diagnosis?

Employers are generally required to accept a request for accommodation in good faith.  This is usually not problematic because most accommodation requests are bona fide and relate to legitimate Code-related needs of employees.  However, in some cases, there may be legitimate and non-discriminatory reasons to suspect that a request for accommodation was made in bad faith, that the employee is not actually disabled, or that the medical diagnoses is questionable.

In response to a request for accommodation, employers can and should request information from the employee’s physician to confirm that the employee is suffering from a medical condition or other disability, and to confirm the nature, extent and duration of any functional restrictions.  In many cases, employers are not entitled to and should not request a specific diagnosis. However, especially in the case of claimed actual mental disabilities, a statement of an employee’s symptoms alone will generally not amount to proof of a Code-protected disability and employers may require, as stated in Crowley v. Liquor Control Board of Ontario:

“[...] a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms, from a health professional in a report or other source of evidence that has specificity and substance”

This exploratory step will resolve most legitimate and non-discriminatory suspicions about the alleged disability or the request for accommodation.

Where the information provided by the treating physician does not allay concerns about the accommodation request—for example, it is vague, based on incorrect assumptions or is outright medico-legal advocacy —employers can and should ask for further clarification.  Repeated follow up is appropriate until the employer has sufficient information about the nature, extent and duration of any functional restrictions or limitations to discharge the duty to accommodate, or until it becomes clear that the employee and his or her physician is not acting reasonably in the accommodation process so as to bring that process to an end.

In exceptional cases, the clarification process, outlined above, may confirm the employer’s suspicions that the request for accommodation was not made in good faith, or in relation to a sound medical diagnosis.  In these limited and exceptional circumstances, an employer may be justified in requesting additional information about the disability from the physician, or asking the employee to submit to an independent medical examination.   In most cases, employers cannot require an employee to submit to an independent medical examination, but when there are serious, well-founded, and well-documented concerns about a diagnosis or a request for accommodation, the refusal to submit to a reasonable request for a second opinion may lead to the conclusion that the employee has not fulfilled his or her obligation to participate in the accommodation process.

Through this process of active management of accommodation requests, employers can resolve issues related to questionable requests or medical diagnosis in a non-discriminatory manner that respects the rights of the employee and the employer.