Discrimination based on disability and the duty to accommodate: Information for employers

The Ontario Human Rights Code

The Ontario Human Rights Code (the Code) is the law that provides for equal rights and opportunities, and freedom from discrimination. The Code recognizes the dignity and worth of every person in Ontario. It applies to the social areas of employment, housing, goods, facilities and services, contracts, and membership in unions, trade or professional associations.

In employment, people with disabilities are entitled to the same opportunities and benefits as everyone else. “Employment” includes employees, independent contractors and volunteers.

The Code prohibits discrimination based on someone’s disability in all aspects of the employment relationship. This includes job applications, recruitment, training, transfers, promotions, apprenticeship terms, dismissal, layoffs and situations where an employee returns to work after a disability-related absence. It covers rates of pay, overtime, hours of work, holidays, benefits, shift work, discipline and performance evaluations. It also includes the “extended workplace” – for example, business trips and off-site work events.

People with disabilities are a diverse group, and experience disability, impairment and societal barriers in many different ways. Disabilities are often “invisible” and episodic, with people sometimes experiencing periods of wellness and periods of disability. All people with disabilities have the same rights to equal opportunities under the Code, whether their disabilities are visible or not.

 “Disability” is to be interpreted broadly and includes past, present and perceived conditions.

Discrimination

Discrimination against people with disabilities is often linked to “ableism” (attitudes in society that devalue and limit the potential of people with disabilities), prejudicial attitudes, negative stereotyping and stigma.

Discrimination in employment may happen when a person experiences negative treatment or impact because of their disability. Discrimination does not have to be intentional. And, a person’s disability needs to be only one factor in the treatment they received for discrimination to have taken place.

People with disabilities who also identify with other Code grounds (such as sex, race or age) may be distinctly disadvantaged when they try to access employment. Stereotypes may exist that are based on combinations of these identities, placing people at unique disadvantage.

Example: Women with disabilities experience unique forms of discrimination. They may be singled out as targets for sexual harassment at work due to a perception that they are more vulnerable and unable to protect themselves.

Forms of discrimination

Discrimination may take many different forms. It can happen when employers specifically exclude people with disabilities from employment and work opportunities.

Example: After coming back from a disability-related leave, an employee returned to modified duties. Even though his doctor cleared him to go back to full-time work, his employer placed him in a lower, part-time position at a lower pay rate due to incorrect assumptions that the employee could not withstand the pressures of his job, and that his performance would be unreliable because of his past medical condition.^[1]

Discrimination can also happen when employers withhold benefits that are available to others, or impose extra burdens that are not imposed on others, without a legitimate reason. This discrimination is often based on negative attitudes, stereotypes and bias.

Discrimination may also happen “indirectly.” It may be carried out through another person or organization.

Example: An employer indirectly discriminates by instructing an employment agency it has hired to screen out people with disabilities from recruitment processes.

People associated with persons with disabilities are also protected from discrimination and harassment. This could include family, friends, or someone advocating on a person’s behalf.

Discrimination is often subtle. It may not be likely that discriminatory remarks will be made directly. Subtle forms of discrimination can usually only be detected after looking at all of the circumstances of a situation to see if a pattern of behaviour exists. Individual acts themselves may be unclear or explained away, but when viewed as part of a larger picture, may lead to an inference that discrimination based on a Code ground was a factor in the treatment a person received.

Sometimes, seemingly neutral rules, standards, policies, practices or requirements have a negative effect on people who have disabilities. This may lead to “adverse effect” discrimination.

Example: An employer’s policy of not hiring people who have “gaps” in their résumés because they have been out of the workforce for a period of time could adversely affect people who have had to take time off work for reasons related to a disability.

Harassment

Harassment happens when someone shows a vexatious (which means distressing or annoying) pattern of doing or saying something based on a person’s disability that they know, or ought to know, is unwelcome.

Example: In one case, the Ontario Court of Appeal found that when a woman suddenly lost her hearing, her employer subjected her to a “campaign of abuse” that included “publically belittling, harassing and isolating [her] in ways relating to her disability.” The Court also found that in addition to being denied any accommodation of her disability, the woman’s employer also “took specific steps to increase the difficulties she faced as a result of her not being able to hear.” The Court awarded damages for breach of the Code.^[2]

Harassment could include:

• slurs, name-calling or pejorative nicknames based on disability
• graffiti, images or cartoons depicting people with disabilities in a negative light
• comments ridiculing people because of disability-related characteristics
• intrusive questioning or remarks about someone’s disability, medication, treatment or accommodation needs
• singling out a person for teasing or jokes related to disability
• inappropriately disclosing someone’s disability to people who do not need to know
• repeatedly excluding people from the social environment, or “shunning”
• circulating offensive material about people with disabilities at an organization by email, text, the Internet, etc.

Poisoned environment

A poisoned environment may be created when unwelcome comments or conduct are widespread in a workplace, causing a hostile or oppressive atmosphere for one or more people from a Code-protected group. Although the definition of harassment refers to “repeated” actions or comments, sometimes a single remark or action can be so serious that it results in a poisoned environment.

Example: A man with chronic back pain requested time off work to recover from an especially bad flare-up. His manager was clearly unhappy with the request and refused to help the man with the paperwork required for a short-term disability leave. The manager expressed his view at a staff meeting that the employee was “faking” his condition to get time off of work. This behaviour may amount to a poisoned work environment based on disability.

Systemic discrimination

Systemic or institutional discrimination consists of attitudes, patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization or sector, and that create or perpetuate a position of relative disadvantage for people with disabilities. The attitudes, behaviour, policies or practices appear neutral on the surface but nevertheless have an adverse effect or exclusionary impact on people with disabilities.

Reprisal

It is also against the Code for a person to be punished or threatened with punishment because they try to enforce their rights under the Code (for example, by making a complaint). This is called reprisal (or “payback”).

Example: The HRTO found that a man experienced reprisal when his employer abruptly terminated his employment in part due to dissatisfaction that the man had pursued his rights under the Code (he had tried to get accommodation for his disability-related needs and had attempted to deal with alleged harassment by the personal respondent), and the employer’s perception that the man was unhappy with accommodations the employer had provided.^[3]

Designing inclusively and removing barriers

People with disabilities face many kinds of barriers every day. These could be attitude, communication, physical and systemic barriers. Employers should identify and remove barriers voluntarily instead of waiting to answer individual accommodation requests or complaints.

Example: A workplace designs a performance management procedure. It builds in flexible processes to make sure it responds effectively to people who may be having difficulty doing their work due to a disability, by offering accommodation, short of undue hardship. This approach shows a positive attitude about disability accommodation and encourages employees to come forward with accommodation requests, if necessary.

Effective inclusive design reduces the need for people to ask for individual accommodation. Employers should use the principles of inclusive design when creating policies, programs, procedures, standards, requirements and facilities.

Negative attitudes about people with disabilities can be barriers too. Taking steps to prevent ableism will help promote respect and dignity, and help people with disabilities to fully take part in community life.

Duty to accommodate

Under the Code, employers have a duty to accommodate the needs of people with disabilities to the point of undue hardship, to make sure they have equal opportunities, equal access and can enjoy equal benefits. The goal of accommodation is to allow people to take part equally in employment.

This means that employers and others may need to change their rules, procedures, policies and requirements to allow for equal access and equal opportunities.

Example: The Supreme Court of Canada found that a workplace attendance standard that defined a maximum period for employee absences was prima facie discriminatory, in part because it did not take into account the individualized nature of the accommodation process.^[4]

Three key principles drive the duty to accommodate:

• respect for dignity
• individualization, and
• integration and full participation.

The steps taken to assess an accommodation (the “procedural” part of the duty to accommodate) are just as important as the accommodation that is provided (the “substantive” part of the duty to accommodate).

A person who needs a disability-related accommodation must:

• make accommodation needs known to the best of their ability, preferably
  in writing, so that the person responsible for accommodation can make the requested accommodation
• answer questions or provide information about relevant restrictions or limitations, including information from health-care professionals
• take part in discussions about possible accommodation solutions
• co-operate with any experts whose assistance is required to manage the accommodation process, or when information is needed
• meet agreed-upon performance standards and requirements, such as job standards, once accommodation is provided

• work with the accommodation provider on an ongoing basis to manage the accommodation process.

Employers must:

• be alert to the possibility that a person may need an accommodation even
  if they have not made a specific or formal request
• accept the person’s request for accommodation in good faith, unless there
  are legitimate reasons for acting otherwise
• get expert opinion or advice where needed (but not as a routine matter)
• take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions
• keep a record of the accommodation request and action taken
• communicate regularly and effectively with the person, providing updates
  on the status of the accommodation and planned next steps
• maintain confidentiality
• limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request
• consult with the person to determine the most appropriate accommodation
• implement accommodations in a timely way, to the point of undue hardship
• bear the cost of any required medical information or documentation (for example, the accommodation provider should pay for doctors’ notes, assessments, letters setting out accommodation needs, etc.)

• bear the cost of required accommodation.

Sometimes, a person with a disability cannot identify that they need accommodation. Employers must try to help a person who is clearly unwell, or is thought to have a disability. They must ask if the person has needs related to a disability and offer assistance and accommodation.

Example: The HRTO found that an employer discriminated against a male employee with a visual impairment when it failed to inquire into whether he needed accommodation, even after it became aware that he was experiencing difficulties on the job due to his disability. Even though the man did not formally request accommodation, the HRTO stated “…the procedural duty to accommodate indicates that an employer cannot passively wait for an employee to request accommodation where it is aware of facts that indicate that the employee may be having difficulties because of disability; there is a duty to take the initiative to inquire in these circumstances.” ^[5]

However, organizations are not expected to try to diagnose illness or “second-guess” a person’s disability.

Forms of accommodation

Many different accommodation methods and techniques will respond to the unique needs of people with disabilities. Many accommodations can be made easily, and at low cost. Where putting the best solution in place right away may result in “undue hardship” because of significant costs or health and safety factors, employers still have a duty to look at and take next-best steps that would not result in undue hardship. Such steps should be taken only until better solutions can be put in place or phased in.

Depending on a person’s individual needs, examples of accommodation in employment may include: 

• allowing a flexible work schedule
• modifying job duties
• modifying policies
• making changes to the building (for example, installing ramps, hand rails, automatic door openers, wider doorways, etc.)
• modifying workstations (making ergonomic changes, supplying a specialized chair, back support, etc.)
• providing specialized adaptation or assistive devices for computers, accessible technology
• providing alternative ways of communicating with the employee
• additional training
• allowing short-term and long-term disability leave
• job bundling and unbundling
• alternative work (where a person with a disability cannot perform their pre-disability job, even with accommodation).

Medical information

When asking for accommodation, the type of information that people may generally be expected to provide includes:

• that the person has a disability
• the limitations or needs associated with the disability
• whether the person can perform the essential duties or requirements of the job, with or without accommodation 
• the type of accommodation that is needed to allow the person to fulfil the essential duties or requirements of the job
• regular updates about when the person expects to come back to work, if they are on leave.

Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy, while still giving the employer enough information to make the accommodation.

Generally, an employer does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed. In rare situations where a person’s accommodation needs are complex, challenging or unclear, the person may be asked to co-operate by providing more information, up to and including a diagnosis. In such situations, the employer must be able to clearly justify why the information is needed. However, wherever possible, an employer must make genuine efforts to provide needed accommodations without requiring a person to disclose a diagnosis, or otherwise provide medical information that is not absolutely necessary.

Preventing and responding to discrimination

Under the Code, employers must make sure their organizations are free from discriminatory or harassing behaviour. Employers violate the Code when they directly or indirectly, intentionally or unintentionally infringe the Code, or when they authorize, condone or adopt behaviour that is contrary to the Code.

Organizations must take steps to address negative attitudes, stereotypes and stigma to make sure they do not lead to discriminatory behaviour toward people with disabilities.

Education on human rights works best alongside a strong proactive strategy to prevent and remove barriers to equal participation, and effective policies and procedures for addressing human rights issues that do arise. A complete strategy to prevent and address human rights issues should include:

• a barrier prevention, review and removal plan
• anti-harassment and anti-discrimination policies
• an education and training program
• an internal complaints procedure
• an accommodation policy and procedure.

See the OHRC’s A policy primer: Guide to developing human rights policies and procedures for more information.

For more information:

The Ontario Human Rights Commission’s Policy on ableism and discrimination based on disability.