The following are excerpts from the Ontario Human Rights Commission Guideline. The statutory references are therefore to the Ontario Human Rights Code
Please note the following:
Section 30 of the Ontario Human Rights Code (Code) authorizes the Ontario Human Rights Commission (OHRC) to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code.* The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code. They are important because they represent the OHRC’s interpretation of the Code at the time of publication.** Also, they advance a progressive understanding of the rights set out in the Code.
DISABILITY
“Disability” should be interpreted in broad terms. It includes both present and past conditions, as well as a subjective component based on perception of disability.
In Mercier, a case arising in Quebec, the Supreme Court made it clear that disability must be interpreted to include its subjective component, since discrimination may be based as much on perceptions, myths and stereotypes as on the existence of actual functional limitations. In Mercier, the complainants were denied employment or dismissed when it was discovered that they had medical conditions. However, their conditions did not result in any functional limitations. The employers argued that since the conditions did not give rise to any functional limitations, they could not be “disabilities” under Quebec’s human rights law. The Supreme Court of Canada disagreed. The Court chose not to create an exhaustive definition of disability. Instead, it opted for an equality-based framework that takes into account evolving biomedical, social and technological developments. This includes a socio-political dimension that emphasizes human dignity, respect and the right to equality. Thus, a disability may be the result of a physical limitation, an ailment, a perceived limitation or a combination of all these factors. The focus is on the effects of the distinction, preference or exclusion experienced by the person and not on proof of physical limitations or the presence of an ailment. Another Supreme Court of Canada decision has since confirmed that “social handicapping,” i.e., society’s response to a real or perceived disability, should be the focus of the discrimination analysis.
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 (3 May 2000), online: Supreme Court of Canada www.lexum.umontreal.ca/cscscc/ en/index.html
Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28 (18 May 2000), online: Supreme Court of Canada www.lexum.umontreal.ca/csc-scc/en/index.html
The nature or degree of certain disabilities might render them “non-evident” to others. Chronic fatigue syndrome and back pain, for example, are not apparent conditions. Other disabilities might remain hidden because they are episodic.
Although mental disability is a form of non-evident disability, it raises particular issues that merit independent consideration. Over the years, many employers have expressed the need for specific guidance on the issue of mental disability.
PRIMA FACIE DISCRMINATION BECAUSE OF DISABILITY
Once a disability within the meaning of section 10 of the Code is established, the individual has the burden of showing a prima facie case of discrimination.
DUTY TO ACCOMMODATE
4.3 Most appropriate accommodation
The duty to accommodate requires that the most appropriate accommodation be determined and then be undertaken, short of undue hardship. The most appropriate accommodation is one that most respects the dignity of the individual with a disability, meets individual needs, best promotes integration and full participation, and ensures confidentiality. Accommodation is a process and is a matter of degree, rather than an all-or-nothing proposition, and can be seen as a continuum. At one end of this continuum would be full accommodation that most respects the person’s dignity. Next is phased-in accommodation over time, followed by the most appropriate accommodation only being implemented once sufficient reserve funds have been set aside. Alternative accommodation (that which would be less than “ideal”) might be next on the continuum when the most appropriate accommodation is not feasible. Alternative accommodation might also be accomplished at a later date if immediate implementation would result in undue hardship. Or, alternative accommodation might be implemented as an interim solution while the most appropriate accommodation is being phased in or implemented at a later date. Whether an accommodation is “appropriate” is a determination completely distinct and separate from whether the accommodation would result in “undue hardship” (the test that has to be met under sections 11 and 17(2) of the Code).
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, online: Supreme Court of Canada www.lexum.umontreal.ca/csc-scc/en/index.html
The Code guarantees equal treatment to all persons capable of performing the essential duties or requirements of the job or service. No one can be judged incapable of performing those duties until efforts have been made to accommodate the individual up to the point of undue hardship. The first step is to separate the essential from the non-essential duties of the job. Where possible, non-essential tasks can be reassigned to another person. The person with the disability should then be assessed in terms of his or her ability to perform the essential duties, and accommodation should be considered on that basis.
There is little guidance on how to distinguish between essential duties and others. In one Tribunal decision, the word “essential” was defined as follows:
“Essential” means that which is “needed to make a thing what it is; very important; necessary” -Synonyms are “indispensable, requisite, vital.”
Thus, peripheral or incidental, non-core or non-essential aspects of a job are not pertinent to a determination under [s. 17(1)].36 Conclusions about inability to perform essential duties should not be reached without actually testing the ability of the person. It is not enough for the employer or person to assume that the person cannot perform an essential requirement. Rather, there must be an objective determination of that fact.
Although accommodation in the pre-disability job is always preferable, it may not always be possible. The issue of whether an employee is entitled to have access to a job other than the pre-disability job is a matter of some debate. Nothing in the Code or in section 17 specifically restricts the requirement to accommodate a worker with disability to the pre-disability position. Conversely, nothing in section 17 expressly authorizes it either. Nevertheless, in light of the broad and purposive interpretation that should be afforded to human rights legislation, it is the OHRC’s view that accommodation in a job other than the pre-disability job may be appropriate in some circumstances. Section 17 may therefore include access to alternative work. Some of the following considerations may assist employers in determining whether such accommodation is available under section 17(2).
The accommodation process is a shared responsibility.
Everyone involved should co-operatively engage in the process, share information and avail themselves of potential accommodation solutions. Ontario Human Rights Commission -18- Policy and guidelines on disability and the duty to accommodate
The person with a disability is required to:
- advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
- make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
- answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
- participate in discussions regarding possible accommodation solutions
- co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability
- meet agreed-upon performance and job standards once accommodation is provided
- work with the accommodation provider on an ongoing basis to manage the accommodation process
- discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff
The employer is required to:
- accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
- obtain expert opinion or advice where needed
- take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated,47 and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate
- keep a record of the accommodation request and action taken
- maintain confidentiality
- limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request
- grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
- bear the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer
The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, employers should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation. On the other hand, employers are not expected to diagnose illness or “second-guess” the health status of an employee.
There may be instances where there is a reasonable and bona fide basis to question the legitimacy of a person’s request for accommodation or the adequacy of the information provided. In such cases, the accommodation provider may request confirmation or additional information from a qualified health care professional to obtain the needed information. No one can be forced to submit to an independent medical examination, but failure to respond to reasonable requests may delay the provision of accommodation until such information is provided.
The Code sets out only three considerations. This means that no other considerations, other than those that can be brought into those three standards, can be properly considered under Ontario law. There have been cases that have included such other factors as employee morale or conflict with a collective agreement. However, the Ontario legislature has seen fit to enact a higher standard by specifically limiting undue hardship to three particular components. The broad and purposive interpretation of the Code and human rights generally means that rights must be construed liberally and defences to those rights should be construed narrowly.53 Moreover, the Code has primacy over legislation,54 and also prevails over agreements such as collective agreements.55 Several factors are therefore excluded from considerations that are frequently raised by respondents. These are business inconvenience, employee morale, customer preference and collective agreements or contracts.
Onus of proof and objective evidence
To claim the undue hardship defence, the person who is responsible for making the accommodation has the onus of proof. It is not up to the person with a disability to prove that the accommodation can be accomplished without undue hardship. The nature of the evidence required to prove undue hardship must be objective,
The nature of the evidence required to prove undue hardship must be objective, real, direct and, in the case of cost, quantifiable. The person responsible for accommodation must provide facts, figures and scientific data or opinion to support a claim that the proposed accommodation in fact causes undue hardship. A mere statement, without supporting evidence, that the cost or risk is “too high” based on impressionistic views or stereotypes will not be sufficient.
ACCOMMODATION PLANNING AND IMPLEMENTATION
The best defence against human rights claims is to be fully informed and aware of the responsibilities and protections included in the Code. Organizations can achieve this by developing disability accommodation policy and procedures as well as by conducting an accessibility review.
Organizations are responsible for dealing effectively, quickly and fairly with situations involving claims of harassment or discrimination. Organizations can be held liable by a court or tribunal if they or responsible staff members do not act to end discrimination or harassment in their workplaces. When an act of harassment or discrimination or a need for accommodation is ignored, there are costs in terms of low morale, high stress, damaged professional reputations and employee absences. Developing internal anti-discrimination policies and procedures to resolve complaints as part of a broad program to build a harassment-free and discrimination-free environment offers many benefits. Dealing promptly with these issues saves time and money. Letting people know the rules and defining unacceptable forms of behaviour makes it possible to avoid costly and upsetting hours in the courts or before specialized tribunals. In that way, strong policies and programs that prevent human rights complaints and help an organization effectively meet its duty to accommodate make good business sense.
See also: www.ontario.ca/humanrights