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Pre-hiring accommodation

As most of us are aware, the Human Rights Code prohibits discrimination in the context of employment, and applies both during the employment relationship and in the hiring process. Most of us would take it as a given that you cannot make hiring decisions based upon grounds such as race, religion, gender, or disability. However, it is not quite as widely understood that the duty to accommodate an individual applies even to those who are not yet employees. Employers that have failed to accommodate in those circumstances risk a finding that they were in breach of the Human Rights Legislation in their jurisdiction.

Often, this issue arises in the context of pre-employment alcohol and drug testing. If an individual is subject to such testing, and the test comes back positive, the question arises as to what the employer is to do. If the individual in question has a recognized disability, which includes addiction, then Human Rights Legislation will require accommodation. As we all know, accommodation is required to the point of undue hardship, which is a term that is not explicitly defined. However, it is clear that the employer must take steps in order to meet their obligations and accommodate the individual in question. They cannot simply refuse to hire them due to the failed test.

testRecently, the issue of accommodating a job applicant came up when an individual applied for a position as a part-time caretaker with the Toronto District School Board. In DM v. Toronto District School Board, the complainant had been diagnosed with a learning disability and an attention deficit disorder. As part of the application process, he was directed to attend at a literacy and numeracy screening tests at a specific time and place. It was made clear that the time could not be changed. The complainant contacted the Board, explained that he suffered from a learning disability, and requested accommodation. The accommodation requested included being able to write the test in a separate room from the other applicants, having someone break down the questions for him, and the use of a calculator in order to assist him with the numeracy questions. The Board refused, and indicated that he should attend at the test with everyone else. They suggested that if he failed, the Board would consider possible accommodation.

The complainant then made further efforts to ascertain whether the Board would accommodate him, first by having the employment agency that he was working with contact the Board, and then by calling back himself. In this last telephone call, the complainant offered to provide medical documentation. In response, the Board accepted his offer and indicated that it would be sent to the “appropriate person” for review and consideration. Unfortunately, however, the complainant was convinced at this point that he was not going to be treated fairly, and he subsequently withdrew his application and filed a complaint with the Human Rights Tribunal.

In the decision rendered by Vice Chair Mark Hart, the Ontario Human Rights Tribunal found that the School Board had discriminated against the complainant in contravention of the Human Rights Code. The Tribunal confirmed that discrimination based upon protected grounds in the hiring process is a contravention of the Code. Furthermore, the Tribunal confirmed that employers have a duty to accommodate applicants in the application process.

The Tribunal also confirmed that the accommodation process is a joint process in which both the employer and the applicant must work together in order to seek appropriate accommodation. There is an onus on the individual to provide sufficient information regarding their condition and their needs with respect to accommodation.

Vice Chair Hart broke the sequence of events down into specific incidents. With respect to the initial contact, he found that while the complainant had met his duty to request accommodation, the Board failed to meet its resulting duty to accommodate. Specifically, Vice Chair Hart concluded that the Board had failed to consider alternative methods of testing the applicant.

Vice Chair Hart went on to consider the next telephone call between the complainant and the Board, during which the complainant offered to provide medical documentation and the Board agreed to review it and to consider potential accommodation. Vice Chair Hart found that it was unfortunate that the complainant failed to follow through on this offer by submitting the medical documentation, choosing instead to withdraw his application and file a human rights claim. The decision suggests that this was a mistake on his part, as he did not give the Board the chance to accommodate his condition.

Vice Chair Hart found that while there had been a violation of the Human Rights Code, the complainant was not entitled to compensation for loss of the opportunity to compete for the job in question due to the fact that he withdrew his application at a time when the Board appeared to be willing to consider possible forms of accommodation. However, since there was a finding that the Human Rights Code had been breached, the complainant was awarded $7,500 as compensation for injury to his dignity, feelings and self-respect. Furthermore, Vice Chair Hart ordered that in the future, the Board should amend their form letter regarding the testing to indicate that the Board is willing to provide accommodation for Human Rights Code-related needs.

In this case, the employer was somewhat fortunate that the applicant chose to withdraw his application, and as a result the Board was not found liable for loss of potential earnings or related damages. However, the case demonstrates the need for employers to be mindful of human rights issues in the application process, and to ensure that they are accommodating such needs appropriately. The Human Rights Code does not only protect those that are already employed, and organizations cannot simply wash their hands of an applicant and proclaim that “they don’t work here, so it’s not our problem”.

Stuart Rudner
Miller Thomson LL

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Stuart Rudner, Rudner Law

Employment Lawyer and Mediator at Rudner Law
Stuart Rudner is a leading HR Lawyer, mediator and a founding partner of Rudner Law, a firm specializing in Canadian Employment Law. At Rudner Law, their approach is simple. They want to understand your circumstances, your concerns, and your goals. They will then ensure that you understand the legal regime along with your rights and obligations. Once that is done, they work with you to design a cost-effective strategy that meets your needs. They want to be your trusted advisor.Read more
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