The Ontario Human Rights Code provides for a variety of prohibitions against discrimination on stated grounds, including disability. However, the Code goes on to specify “a right of a person under this code is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability”. Reading through the legalese, what this means is that it is not a prohibited act of discrimination to deny an employee a job for the reasons that his disability prevents him from performing that job. However, the Code goes on to provide that a person cannot be found incapable of performing the duties of his position if it is possible for the employer to accommodate his particular needs “without undue hardship”.
The difficulty in assessing any complaint of discrimination in employment contrary to the Code is determining to what extent the employee’s disabilities can be accommodated without undue hardship. The Human Rights Tribunal and the Courts have wrestled with the question of defining undue hardship, and whether such an exercise differs depending on the size and nature of the employer being considered. As well, the Supreme Court of Canada has set out certain criteria in assessing whether or not the required steps of accommodation would impose undue hardship. These include costs, impact on existing Collective Agreements, impact on other employees, and characteristics of the employer’s facilities. However, the court was careful to state that this list is not exhaustive and there may be other criteria which may be examined. In considering the Supreme Court’s criteria, the Ontario Human Rights Tribunal has concluded that cost will constitute an undue hardship where it is quantifiable, directly related to the accommodation, and so significant that it would either alter the essential nature of the enterprise or affect the viability of the enterprise. These guidelines can be found at the Ontario Human Rights Tribunal’s website.
Once it is determined that an employee is exhibiting a disability which can be accommodated, the next issue to be dealt with is the extent to which the employee must co operate with the employer’s efforts to accommodate that disability. This issue was considered by the Human Rights Tribunal in a 2004 decision involving Defasco Inc. In that case, the Tribunal dealt with the degree to which an employee’s work station had to be modified to accommodate her disability. In reviewing the provisions of the Code, the Tribunal concluded that the determining factor was the needs of the disabled person, rather than her desires, wants, or preferences. If the actions of the employer address these needs, it will have complied with its obligation.
The Tribunal referred to a Supreme Court of Canada case in Central Okanagan School District v. Renaud. In that case, the Supreme Court of Canada stated “… along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation… the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a failure to facilitate the search for such an accommodation. Thus, in determining whether the duty of accommodation has been fulfilled, the conduct of the complainant must be considered”. Where the employee fails to take reasonable steps to participate in the accommodation process, a complaint for discrimination will be rejected. The Tribunal dismissed the complainant’s complaint because of her “…lack of co operation or frustration of the accommodation process…” In this case, the Tribunal rejected the complaint. Employer’s can take solace from this decision.
Obviously, the Human Rights Code does impose clear obligations on employers to accommodate disabilities where possible. The Courts and the Tribunal have regularly stated that what is reasonable accommodation will vary from case to case depending on the specific facts in issue. Therefore, detailed advice is critical in assessing the degree of accommodation required and determining the cost which must be incurred in doing so.
Earl Altman
Garfinkle, Biderman LLP
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I agree. It is made more difficult due to privacy concerns. To what extent can the employer disclose such concerns to outside experts consulted to assist in the accomodation efforts? I suggest employers document the efforts they make, and the position taken by the employee.
In my experience, the most difficult issues arise when an employee is suffering from what appears to be a mental illness or disability. In many cases, the employee will not admit that he or she has an illness that is impacting upon performance. In such cases, it becomes near impossible to deal with the accommodation issues. The Tribunals and Courts will have to grapple with how to balance the employee’s and employer’s obligations in the accommodation process in the context of mental illness that blinds the employee to the reality of the situation.