Monday, November 01, 2010

Ontario Employment Law: Discrimination On The Basis of Disability under the Ontario Human Rights Code

Under the Ontario Human Rights Code, an employer is prohibited from discriminating against an employee on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability within the meaning of the Code.

This prohibition against discrimination is very broad; it applies to nearly all decisions an employer can take with respect to an employee, including criteria selected by an employer for the purpose of making hiring decisions.

That said, even if an applicant can make out a prima facie case of discrimination, that’s not enough: the Human Rights Tribunal of Ontario must also be satisfied that the applicant’s needs could be accommodated by the employer without undue hardship (see Section 17(2) of the Code).

The duty to accommodate can normally be easily met by an employer providing an employee modified job duties.

In Timothy Black v. Etobicoke Ironworks Ltd., a recent decision of the Human Rights Tribunal of Ontario, an employer was found to have discriminated against its welder employee who had a medically substantiated lower-back problem that negatively affected his overall productivity level as well as his ability to perform certain job-related tasks such as lifting heavy objects, on the basis of disability in taking the decision to send him home and refuse to allow him to continue working on and after a certain day.

The Tribunal explained the duty to accommodate as follows:

The duty to accommodate has procedural and substantive components. Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required in order to allow the employee to participate fully in the workplace. The substantive duty requires the employer to make the modifications or provide the accommodation necessary in order to allow the employee to participate fully in the workplace, such as by modifying duties or hours or the workplace itself, as the case may be, up to the point of undue hardship.

It is clear that the duty to accommodate places a fairly heavy burden on the employer. This duty was not discharged by the employer in Timothy who decided to wait for a third party (an auto insurance company) to conduct the necessary job assessment before addressing the applicant’s need for accommodation:

Even if the applicant’s car insurer had somehow led the respondent to believe that it might assist in assessing the suitability of the applicant’s work, I would still find that the respondent breached its procedural duty to accommodate the applicant. The thrust of the respondent’s evidence and submissions was that it was entitled to pursue the applicant’s car insurer as the only potential source of a work assessment, for however long it took, until that avenue was definitely closed to it. However, that is not what the duty to accommodate required in the circumstances. On the contrary, the duty to accommodate the applicant obliged the respondent to take the necessary steps to have its concerns about the applicant’s ability to work addressed in a reasonably prompt manner. If the respondent wished to have its concerns addressed through some kind of work assessment, it ought to have had one done quickly. The respondent had obtained work assessments privately for other employees in the past. The respondent put forward no reason why it could not have had an assessment of the applicant’s work done by another company when its earliest attempts to have it done by the applicant’s car insurer did not materialize.

When the Tribunal finds that an applicant’s rights under the Code have been infringed, it has a broad discretion to award remedies (see section 45.2), including reinstatement of employment. In Timothy, the Tribunal decided to award the employee an amount equal to wages he would have earned had he been working during the period he was off work.

If you have been discriminated against by your employer on the basis of disability or on any other prohibited ground under the Code, you should contact a lawyer who can advise as to your rights and entitlements.

- Robert Tanha, Toronto
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