Workplace Investigation -Learning of a medical diagnosis in Respondent interview

[Alena Christie]

#101653

Forum: Private

Hello,

I’m hoping I can get some perspective on how learning of a medical diagnosis for ASD (autism) during a Respondent’s interview plays into the mitigating factors for remedial actions. The allegations were substantiated and we were able to determine that there were violations of our respectful workplace policy definitions for harassment and sexual harassment. We must determine proportionate disciplinary actions, and one of the mitigating factors we learned during the respondent’s interview, is that they were diagnosed with ASD in childhood, providing evidence to support this diagnosis. The company was not aware of the diagnosis prior to the investigation and therefore could not have accommodated before learning of their disability that would have mitigated the behaviours that occurred. We are not concerned about accommodations during the investigation, as these were addressed once this was identified. Our biggest concern is understanding what is a proportionate next step. Four allegations were brought forward that were founded and violated this particular policy. The company has a zero tolerance policy. There was admission of guilt for three allegations and the respondent is remorseful. We would typically consider termination in this situation but the diagnosis has us wondering if this should be more heavily weighed, and if other options should be considered to remediate the situation.

[Haley O’Halloran]

#101661

The ASD diagnosis is a relevant mitigating factor, but it is not automatically a determinative one. Under Canadian human rights law, autism is a disability, and once an employer becomes aware of it, the employer has a duty to consider accommodation to the point of undue hardship. However, the duty to accommodate does not excuse misconduct simply because it may be connected to a disability. The key question is whether the disability affected the employee’s ability to understand the impact or wrongfulness of the conduct, to regulate their behaviour, or to comply with workplace expectations. Even if it did, the employer must still ensure a workplace free from harassment and sexual harassment.

When determining proportionate discipline, it is helpful to distinguish between culpability and risk. Factors supporting mitigation include the respondent’s documented diagnosis, remorse, admissions to three of the four allegations, willingness to cooperate, any evidence that the behaviours were influenced by ASD-related social communication deficits, a previously clean disciplinary record (if applicable), and whether accommodations might reasonably reduce the likelihood of recurrence. Factors supporting more severe discipline include the seriousness of the harassment, the impact on the complainant(s), whether the conduct was repeated or deliberate, whether there was an abuse of power, whether the respondent understood the conduct was unwelcome, and whether continued employment would undermine workplace safety or trust.

The fact that the you did not know about the diagnosis before the investigation is also significant. An employer cannot be criticized for failing to accommodate a disability it was unaware of. Your obligation arose once the disability was disclosed, and it appears you appropriately addressed accommodations during the investigation. The disciplinary decision should therefore be based on the misconduct itself, while considering the newly identified disability as one factor among many—not as a shield from accountability.

If the investigation supports that the misconduct can likely be prevented through reasonable accommodation and the respondent demonstrates insight, remorse, and a genuine commitment to change, alternatives to termination could include a lengthy unpaid suspension, a final written warning, mandatory respectful workplace and sexual harassment training, individualized coaching, accommodations informed by medical information (where appropriate), and a clear last-chance agreement stating that any further harassment will result in termination. Conversely, if the conduct was sufficiently serious, created an ongoing safety risk, or there is no reasonable basis to believe accommodation would prevent recurrence, termination may still be a proportionate response despite the ASD diagnosis.

Overall, the diagnosis should prompt a careful individualized assessment rather than an automatic reduction in discipline. The decision should be well documented, demonstrating that the employer weighed the disability, considered whether accommodation could address the behaviour going forward, and balanced those considerations against its legal obligation to provide a workplace free from harassment and sexual harassment. That approach is generally the strongest position from both an employment law and human rights perspective.

You can further navigate this matter by exploring some of these available resources:
How to Create a Mental Disability Accommodations Policy
Verifying Disability Policy
Accessibility Resources
Workplace Harassment Policy
Respectful Workplace Policy
Harassment – Know The Laws of Your Province

I hope this helps!
-HRInsider Staff

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