By Ilija Dimeski, Windsor Law J.D. Candidate 2019
What are Multiple Chemical Sensitivities?
Individuals who have Multiple Chemical Sensitivities (MCS) are harmed when exposed to common environmental chemicals at levels generally tolerated by the majority. MCS syndrome is also known as “environmental sensitivities”, “cerebral allergies”, “chemical-induced immune dysfunction”, “sick building syndrome”, “Gulf War syndrome”, and “20th century disease”. When no longer exposed to these chemicals, individuals with MCS generally see their conditions improve. There is a debate in the medical community as to whether or not MCS should be considered a disability, and this has translated to uncertainty as to whether MCS should attract protection under the human rights system in Ontario. If not, are these individuals to be left to endure the pain and suffering, without recourse against their employers, landlords, and/or service providers?
Overview of Ontario’s Human Rights System
Every person in Ontario has the right to be free from discrimination and harassment within the purview of the Ontario Human Rights Code, RSO 1990, c H.19, a provincial anti-discrimination law. The purpose of the Code is to compensate, not penalize, and it does so by attempting to restore the aggrieved party back to the position they would have been in, but for the discrimination. Discrimination means differential treatment or harassment that results in exclusion, disadvantage or denial of a benefit. It can either be direct discrimination or indirect (also known as “constructive” or “adverse effect”) discrimination.When an individual feels their rights have been violated under the Code, he or she can file an application with the Human Rights Tribunal of Ontario (HRTO) for free. The HRTO processes, mediates and adjudicates applications of discrimination. The HRTO can award three types of remedies: special damages, general damages, and public interest remedies. The individual may also seek the free legal services of the Human Rights Legal Support Centre (HRLSC). Finally, the individual can also access free educational materials regarding their rights under the Code through the Ontario Human Rights Commission (OHRC). The human rights system in Ontario is ultimately comprised of these three pillars (i.e. HRTO, HRLSC, and OHRC) under the Code.
Important Case law
In the Hyland Grievance, an employer was found to have failed in its duty to accommodate after refusing to provide a smoke-free placement for a prison guard with MCS. In this case, the employer was able to accommodate the individual by placing them in an alternative environment free of MCS triggers, but chose not to do so. Similarly, in Noe a landlord was found to have failed in their duty to accommodate after refusing a tenant to temporarily transfer to another apartment unit since the one next to hers was painted and varnished.The fumes given off by the chemicals used caused the tenant to be ill and even prevented her from accessing her own bedroom. The tenant provided two medical documents to support her request but the landlord did not accept it as sufficient to require accommodation. In fact, the landlord even asked her “why do you complain” and, according to the applicant, she was “treated like a ‘crazy lady'”. The landlord also noted that the medical information was vague and required the tenant to provide secondary testing and/or a referral to a specialist who could confirm her diagnosis. In the end, the HRTO held that the medical information provided by the applicant was sufficient and even went beyond what was required. Not only did the medical notes confirm her needs, they also identified her diagnosis. While individuals have a duty to disclose their disability-related needs they are normally not required to disclose their diagnoses or conditions.
Challenges to Bringing forward a Human Rights Complaint
Due to diagnostic difficulty, lack of knowledge, and scientific confusion within the medical community, individuals with MCS may not have sufficient medical documentation and may even be misdiagnosed with a psychological or psychiatric condition.Such a misdiagnosis can lead to social stigma for individuals with MCS as they may be further victimized when are denied an accommodation and told “it is in their head”. As per the OHRC’s policy on medical documentation, employers, landlords, and service providers should focus on a person’s limitations and restrictions and seek ways to accommodate them rather than ask for the diagnosis. In fact, the courts have ruled that as long as triggers can be identified, it is not imperative whether the medical community can diagnose a condition as a disability, the focus instead should be on the individual’s accommodation needs.Unfortunately for individuals who have MCS, their employers, landlords, and service providers in Ontario have not been well accommodating of this medical condition. Debate within the medical community has also led to lack of experts to testify before a Tribunal or provide evidence about accommodation needs. This is a significant issue and is indicative of why so many cases of MCS are dismissed due to lack of evidence.
Duty to Accommodate and MCS
Employers, landlords, and service providers have a duty to accommodate disability to the point of undue hardship. However, this duty to accommodate one’s disability is not a free standing obligation under the Code, it only arises when a prima facie (on the face of it) case of discrimination is made, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship. Refusal to accommodate disability may be justified if it amounts to undue hardship as outlined in section 17 of the Code. For example, if the individual is not able to fulfill the essential duties, or if the accommodation request will be an overwhelming financial burden for the employer, landlord, and service provider, or if it will cause a health and safety risk.
The OHRC’s Policy on Ableism and Discrimination Based on Disability indicates that if an employee can perform the essential duties of the job after the accommodations for their limitations and restrictions then they should remain in their pre-disability job. If, however, they are unable to perform the essential duties of the job with the accommodations, then the company should examine temporary and permanent alternative work for individuals who can no longer remain in the same position even with the accommodation. According to the OHRC’s policy, it is important to note that “this duty includes diligently investigating positions and proposing job options that are within the person’s functional limitations. Accommodation may include job restructuring, job bundling, reassignment to open positions, or retraining for alternative positions if that would not constitute undue hardship for the employer”. Such steps will ensure the employer is not discriminating and is effectively accommodating a person’s disability. Other forms of accommodation in employment, specifically for MCS, include implementing fragrance-free and chemical avoidance policies, minimizing chemical use, purchasing less toxic products, providing special equipment, modifying the physical space, and transferring, reassigning or retraining employees with environmental sensitivities.
Effective Enforcement: Educational Campaigns and Voluntary Compliance
Promoting educational campaigns to encourage voluntary compliance with the accommodations is another effective measure that should be used to support workers with MCS. Such pro-active steps will ensure a healthy and safe environment not only for individuals with MCS but for all. In order for the policies to be effectively enforced, various parties (i.e. other co-workers, tenants, and customers) must be involved in the accommodation process. It is imperative that responsibility is shared among all parties and not be placed solely with the complainant.