Employees with Disabilities :What the Duty to Accommodate requires of Employers
Posted: 12.08.2015
By Earl Altman, Partner, Fogler, Rubinoff LL.P.
The Ontario Human Rights Code provides that "every person has a right to equal treatment with respect to employment without discrimination because of…disability." Disability is then defined quite broadly in s.10 of the Code to include physical, mental, or developmental disability. It also includes learning disabilities and mental disorders. The definition specifically mentions certain illnesses such as diabetes, epilepsy, blindness or deafness. The Code goes on to define a category of "constructive discrimination" as discrimination resulting from "exclusion, restriction, or preference which excludes a named group. The duty to accommodate is set out in s. 17 of the Code which provides that it is not a prohibited discrimination where a person is discriminated against in employment as a result of his or her inability to perform the duties of the job because of a handicap unless this handicap can be accommodated by the employer without undue hardship. The issue for employers is how far they must go to accommodate the disability in question. Unfortunately, the Human Rights Code does not assist in this regard. There is no benchmark set to determine when the accommodation will be found to be an undue hardship on the employer, thereby absolving the employer from the obligation to accommodate.
An employer can defend a charge under the Code on the basis either that the requirement which results in the discrimination is based on a bona fide requirement of the position, or that the complainant is, by reason of his handicap incapable of performing the job. The Supreme Court has held that the Courts must ask three questions to determine if either defence will succeed... [more]
In considering complaints under these two sections, the Courts have sought to balance the employee's right to be free of discrimination with the employer's need to manage its business safely, efficiently, and profitably. In one case, the Supreme Court of Canada commented that by using the phrase "undue", the legislature concluded that some hardship is acceptable. In a subsequent decision of the Supreme Court, the Court defined undue hardship was defined hardship as something which is impossible, or something which imposes serious risk, or excessive cost on the employer.
The Courts have considered a number of factors in applying the test set by The Supreme Court of Canada. For example, the larger the employer and the greater its resources, the further it will be required to go in accommodating disabled employees. The Courts have also held that employers must be pro-active in their efforts to accommodate and should consider all available options. In the event of a complaint, the employer should be prepared to show why a specific option, which would have accommodated the employee’s disability, was considered and rejected, or not considered at all.
There are some limits to the employer's obligation to accommodate. For example, the employer is not required to create a new position to satisfy the needs of the employee. Nor is an employer required to maintain a position indefinitely for an employee who cannot attend, work due to a disability, although the question of how long an employer must wait to determine this fact has not been settled by the Courts. Finally, an employer does not have to accommodate an employee who is uncooperative in the accommodation efforts.
Obviously, the obligations on an employer to accommodate are complicated and largely fact-driven. If you have any questions regarding the obligation to accommodate or whether the efforts being made meet the requirements of the Code, you should contact a lawyer or the Human Rights commission.
About the author: Earl Altman is a partner with the Toronto law firm of Fogler, Rubinoff LL.P. He can be reached at 416-941-8850 or EAltman@foglerubinoff.com
The Ontario Human Rights Code provides that "every person has a right to equal treatment with respect to employment without discrimination because of…disability." Disability is then defined quite broadly in s.10 of the Code to include physical, mental, or developmental disability. It also includes learning disabilities and mental disorders. The definition specifically mentions certain illnesses such as diabetes, epilepsy, blindness or deafness. The Code goes on to define a category of "constructive discrimination" as discrimination resulting from "exclusion, restriction, or preference which excludes a named group. The duty to accommodate is set out in s. 17 of the Code which provides that it is not a prohibited discrimination where a person is discriminated against in employment as a result of his or her inability to perform the duties of the job because of a handicap unless this handicap can be accommodated by the employer without undue hardship. The issue for employers is how far they must go to accommodate the disability in question. Unfortunately, the Human Rights Code does not assist in this regard. There is no benchmark set to determine when the accommodation will be found to be an undue hardship on the employer, thereby absolving the employer from the obligation to accommodate.
An employer can defend a charge under the Code on the basis either that the requirement which results in the discrimination is based on a bona fide requirement of the position, or that the complainant is, by reason of his handicap incapable of performing the job. The Supreme Court has held that the Courts must ask three questions to determine if either defence will succeed... [more]
- Did the employer adopt the standard for a purpose rationally connected to performance of the job?
- Did the employer adopt the standard in an honest and good faith belief that it was necessary to the fulfilment of the legitimate work-related purpose?
- Is the standard reasonably necessary to the accomplishment of that work-related purpose?
In considering complaints under these two sections, the Courts have sought to balance the employee's right to be free of discrimination with the employer's need to manage its business safely, efficiently, and profitably. In one case, the Supreme Court of Canada commented that by using the phrase "undue", the legislature concluded that some hardship is acceptable. In a subsequent decision of the Supreme Court, the Court defined undue hardship was defined hardship as something which is impossible, or something which imposes serious risk, or excessive cost on the employer.
The Courts have considered a number of factors in applying the test set by The Supreme Court of Canada. For example, the larger the employer and the greater its resources, the further it will be required to go in accommodating disabled employees. The Courts have also held that employers must be pro-active in their efforts to accommodate and should consider all available options. In the event of a complaint, the employer should be prepared to show why a specific option, which would have accommodated the employee’s disability, was considered and rejected, or not considered at all.
There are some limits to the employer's obligation to accommodate. For example, the employer is not required to create a new position to satisfy the needs of the employee. Nor is an employer required to maintain a position indefinitely for an employee who cannot attend, work due to a disability, although the question of how long an employer must wait to determine this fact has not been settled by the Courts. Finally, an employer does not have to accommodate an employee who is uncooperative in the accommodation efforts.
Obviously, the obligations on an employer to accommodate are complicated and largely fact-driven. If you have any questions regarding the obligation to accommodate or whether the efforts being made meet the requirements of the Code, you should contact a lawyer or the Human Rights commission.
About the author: Earl Altman is a partner with the Toronto law firm of Fogler, Rubinoff LL.P. He can be reached at 416-941-8850 or EAltman@foglerubinoff.com
