By: Armando Ranjbar
In Ontario, most human rights complaints are associated with workplace experiences. Fortunately, Ontarian employees are protected from discrimination under the Ontario Human Rights Code (the “Code”). All Ontarians have the right to equal treatment without discrimination based on grounds set out in the Code. Amongst these protected grounds is disability, which will be the focus of this article.1
What does the Code consider a Disability?
It may be a surprise, but the Code does not specify what is regarded as a “Disability.” Any concerns regarding such uncertainty may be softened given that a “disability” is to be interpreted broadly. A disability includes:
- Persistent or past conditions.
- Perceived current conditions.
- The perception of a disability developing in the future.2
Whether an employee or applicant faces a disability is not always relevant. Any determination of discrimination focuses on the effects of differential treatment based on the protected grounds, not on evidence or proof that the disability exists.3
Consider a scenario where an employer does not hire a candidate because they believe the applicant may have a physical disability. In such a case, the candidate could file a human rights complaint against their employer for discrimination based on a perceived disability, a protected ground. It is important to note that even if the candidate had a disability, they would not be required to provide proof to succeed in their claim.
Are protections against discrimination only applicable to employees?
The protections against discrimination that the Code facilitates apply to all aspects of employment. For example, employers must be conscious of their treatment of all individuals starting at the point of reviewing “job applications, recruitment, training, transfers, promotions, apprenticeship terms, dismissal, layoffs, and situations where an employee returns to work after a disability-related absence.” The discriminatory treatment that the Code protects against covers issues including: “pay, overtime, hours of work, holidays, benefits, shift work, discipline and performance evaluations.”4
What are the different forms of discrimination?
There are three recognized forms of discrimination under Ontario law: direct discrimination, indirect workplace discrimination, and systemic workplace discrimination. Direct discrimination is the least difficult to identify as it usually takes its form as an explicit policy that draws a distinction based on a protected ground. On the other hand, indirect discrimination may be more challenging to spot. Indirect discrimination occurs when a company policy that seems neutral at first glance has a disproportionate effect on a particular group based on a protected ground. Lastly, and arguably the most challenging form to identify is systemic discrimination. Norms, policies, or practices embedded in the structure of an employer organization that further discrimination based on a protected ground are considered systemic discrimination.5
Is there a duty to accommodate disabilities?
The Code outlines that employers must provide equal opportunities and benefits to all employees. However, employees or job applicants may wonder when employers are required to accommodate their disability. Fortunately, the Code outlines a legal test that will trigger when employers are required to adapt. Employees with disabilities are entitled to have employers accommodate such impediments to the point of undue hardship.6 Accommodation can be amending policies, rules, requirements, etc., to facilitate equal treatment.7
What forms of accommodation are employees entitled to?
Consider a scenario whereby an employer refuses to accommodate an employee’s disability because the best solution would be too costly to the point of undue hardship. Although the best solution may not be feasible, employers may be required to take “next-best” steps that would not impose an undue hardship on the organization. An acceptable accommodation will depend on the circumstances. Typical forms of accommodation are flexible schedules, modified job mandates, amended work policies, changes to the workplace environment to enhance accessibility, additional training, granting disability leave, etc.8
Although most human rights complaints are due to work-related issues, employees and job candidates in Ontario have legal protections to safeguard against discrimination in the workplace. Ontarians should remember that any recognized form of discrimination based on a disability is covered by the Code and prohibited. Employers are required to accommodate disabilities to the point of undue hardship and must consider all reasonable measures before refusing to accommodate.
Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.