This paper is based on a presentation made to the 15 Wing Moose Jaw, Second Career Assistance Network, Transition Seminar on November 8, 2012. It is prepared with the goal of providing awareness to those with disabilities of their rights as they seek new employment. It is in the nature of general information. Specific advice is not possible. How the law applies to any given situation depends on the circumstances of the particular person’s situation.
It should also be mentioned that the focus is mainly on The Saskatchewan Human Rights Code and the Canadian Human Rights Act. However, Human Rights legislation to protect those with disabilities is found in every province. While there may be differences in the wording of each provinces’ Human Rights legislation, they all have received similar interpretations throughout the country so as to protect those with disabilities equally. Therefore, what is contained in this paper is broadly relevant throughout Canada.
What is a Disability
It is useful to begin with thinking about what the law defines as a disability. The law takes a broad view of what constitutes a disability. For example, The Saskatchewan Human Rights Code includes in its definition any physical impairment or sickness, any learning impairment and any mental illness.
The law also treats a “perceived disability” as a disability. In an important decision, the Supreme Court of Canada decided that the term “disability” includes not just a disability that causes a functional limitation, but also a “perceived disability”. That is, in this case two individuals had anomalies in their spinal columns. These anomalies did not result in functional limitations so the individuals could perform all the duties of the jobs they applied for. However, they were both denied employment because the employer perceived that their illnesses could potentially be limiting. This perception of a disability resulted in them being considered disabled for purposes of protection under Human Rights legislation.
What can be taken from this, and other Court decisions, is that Human Rights legislation is interpreted broadly and liberally. It is meant to include and protect people rather than exclude them through some narrow, technical legal definition.
Application of Human Rights Legislation
It is important to understand that Human Rights legislation applies to all people, businesses and institutions. In the case of employment law, it applies to all employers; private and public, unionized and non-unionized. This may seem like an odd thing to emphasize. However, it should be contrasted with the Canadian Charter of Rights and Freedoms. This is a constitutional Human Rights document. However, the Charter only applies to government action or decisions. Its protection, for example, of equality, applies only to ensure that the government treats people equally. Human Rights legislation, such as The Saskatchewan Human Rights Code, applies to all institutions, businesses and people in Saskatchewan.
Discrimination Based on Disability Prohibited
One of the specific protections Human Rights legislation provides for people with disabilities is the protection from discrimination in employment. An employer cannot refuse to hire or, once employed, terminate the employment of a person on account of a disability. To do so is discrimination contrary to Human Rights legislation opening up the employer to liability.
Human Rights legislation provides protection at the outset of a job search. An employer cannot try to avoid receiving job applications from persons with disabilities. Under The Saskatchewan Human Rights Code an employer cannot publish an advertisement for employment that, directly or indirectly, expresses a specification or preference that will discriminate against persons with disabilities.
Similarly, employment agencies are prohibited from receiving, screening, classifying and referring applicants to employers based on disability. An agency cannot ensure that certain jobs with certain employers are unavailable to persons with disabilities. If an employment agency engages in such practices, employers are not allowed to use their services.
A sensitive area is disclosure of a disability. An employer is prohibited from directly questioning an applicant on this issue. On an application form an employer cannot include in the form a question or request for information on whether an applicant has a disability. This type of attempt to screen applicants with disabilities is prohibited.
The protection from being required to disclose a disability extends to the job interview. An employer cannot ask questions of an applicant requiring him or her to disclose information on a disability that is not readily evident. Such information is often irrelevant to the job. Since discrimination in hiring based on disability is prohibited, asking questions with a view to disclosing an individual’s disability are irrelevant.
It is important to recognize this important protection for people with disabilities. An employer cannot solicit information about a disability from an applicant. Having said this, while an employer cannot solicit this information, the applicant may volunteer the existence of a disability and provide information. In employment law an individual’s disability will be relevant if there is a need for accommodation of the disability.
Duty to Accommodate
The duty to accommodate is not an unfamiliar concept. Many are aware that employers have a duty to accommodate employees with disabilities. However, when most people think of the duty to accommodate people with disabilities they think of accommodation during the course of an employment relationship. That is, for example, an employee who becomes involved in a serious motor vehicle accident. The accident leads to a permanent disability and following recovery the employee wants to return to his or her previous employment. The employer has a duty to accommodate the returning employee’s disability.
Accommodation during the course of employment is often what first comes to mind when people think of the duty to accommodate. Most of the decisions by Judges, Arbitrators or Tribunals deal with accommodation during the course of an employment relationship. It is important to be aware that the duty to accommodate starts even before the employment relationship begins. It starts at the job interview.
In some situations it may be apparent at the beginning of the interview that the applicant may require accommodation if the applicant is the successful candidate for the job. For example, an applicant that attends in a wheel chair may immediately start the employer thinking about whether or not accommodation is necessary.
Many disabilities are not readily apparent. In these situations, if the applicant needs accommodation, the applicant should make it known at the interview that he or she has a disability that needs accommodation. It is important to be aware that the duty to accommodate only arises if the employer is aware of the disability and that accommodation is necessary. If the employer is unaware of a disability, then it is impossible for the employer to accommodate. While the existence of a disability is not a proper subject for an employer to inquire about, it is permissible for the applicant to raise the existence of a disability for the purposes of discussing accommodation.
(a) Disabled Person’s Rights
Disclosing a disability brings both rights and responsibilities for the person with the disability. On the rights side of the ledger is the employer’s duty to accommodate. What this duty means is that the employer has a duty to make changes or adjustments to the workplace or job so that the disabled employee, who is qualified to do the job, is provided with an equal opportunity to perform the job. The employer must accommodate persons with disabilities up to the point that accommodation causes undue hardship to the employer.
This may seem like a very vague definition. There is good reason for this. There are thousands of different jobs and thousands of people with different types of disabilities. What form the duty to accommodate takes in a particular situation will depend on the circumstances of the individual and the employer. There are no specific “black and white” rules to follow in all cases. The law provides a general concept that is broad enough to apply to all situations. This general concept can be given form, content and definition in each particular situation in which it is applied.
Bearing in mind that the details of accommodation will be worked out when the need arises, there are some general considerations an employer may think about even before a request for accommodation is made.
For example, one consideration is the physical premises. Does the design of the workplace, work area or work stations potentially pose issues to those with disabilities?
Another example is the employer may want to consider the essential requirements for the job. Are there ways that the job can be performed just as effectively if an employee with a disability is provided with the use of a particular tool or provided with particular training?
There is no “ready-made” approach to accommodation. However, if an employer is already thinking about accommodation issues before the hiring process, it may make the process easier and quicker should the need arise.
At an interview, once the existence of a disability has been disclosed and the issue of accommodation has been raised, this allows the employer to obtain more information to fulfill the duty to accommodate. If the applicant discloses a disability, it is then permissible for the employer to ask questions about the disability. It is best practice for the employer to make such inquiries. This will help the employer assess what is required for it to accommodate the applicant.
It is important to bear in mind that an employer has a heavy onus in fulfilling its duty to accommodate a person with a disability. The employer must consider all potential accommodation possibilities in order to fulfill its duty. The employer should try to obtain as much information as possible that is relevant to the job and accommodation. In the context of a request for accommodation by an applicant, questions on a disability become quite relevant. They will assist the employer in providing equal opportunity to perform the job.
(b) Disabled Person’s Responsibilities
Accommodation in the workplace is a right the duty to accommodate brings to those with disabilities. The employer is obligated to adjust or modify the workplace or position. With this right comes responsibility on the person with a disability. There is a duty on the person with the disability to co-operate in the accommodation process.
Perhaps the most important responsibility at the interview stage is the willingness of the applicant to supply relevant information. It is not permissible for an applicant to state that he or she has a disability and then expect or demand that the employer try to figure out the extent of the disability, how it impacts the position in question and all the possible ways to accommodate. If this is the approach an applicant takes, it is arguable that the duty to accommodate does not even arise, or that the employer fulfilled the duty when it inquired about the disability and the applicant refused to supply information.
The applicant should be prepared to supply information on the disability relevant to the job, including in response to questions from the employer. It is a good idea if the applicant has some ideas on potential accommodation. For example, does the applicant know of a particular tool that will help him or her in performing the job? Having potential solutions may help the employer analyze accommodation options or reach a solution on accommodation quicker and easier than would otherwise be the case.
In some situations, it may be necessary to disclose medical information to the employer to assist in the accommodation process. This should be approached with some caution. The medical information requested by the employer should only be that which relates to the need for and provision of accommodation. The employer is not entitled to an applicant’s entire medical history. However, the more complex the requested accommodation, the more likely it is that the employer may need medical information to accommodate. The refusal to comply with a reasonable request by the employer for medical information may be seen as a failure on the applicant to fulfill his or her duty to co-operate in the accommodation process.
(c) Limits on Accommodation
It is important to recognize that the duty on the employer to accommodate a person with a disability is not endless. The duty to accommodate ends if accommodation will cause the employer undue hardship. What is undue hardship is difficult to describe. Like the concept of the duty to accommodate, the concept of undue hardship has no precise definition.
There is good reason for this. There are thousands of people with different disabilities and thousands of employers with different workplaces. As with accommodation, the law seeks to have a broad concept that applies to many different situations. Whether the point of undue hardship to the employer has been reached will depend on the circumstances of the case.
Factors that have been considered by Judges, Arbitrators and Tribunals include workplace safety, interference with the rights of other employees, disruption to the business and cost. What is clear about the concept of undue hardship is that the employer must make more than a minimal effort to accommodate and that some hardship on the employer is acceptable before undue hardship is reached. Take for example the issue of the cost to accommodate. Additional cost to the employer has often not been found by Judges, Arbitrators and Tribunals to constitute undue hardship. It is generally not acceptable for an employer to say it cannot accommodate a person with a disability because a particular tool to help the person involves an extra expense. If, on the other hand, accommodation causes an unbearable expense to the employer, cost may be undue hardship. Whether undue hardship is caused depends on the circumstances.
It may be that an employer states it cannot accommodate a person with disabilities because of a bona-fide occupational requirement (“BFOR”). A BFOR is a job requirement or qualification that is necessary for the safe, efficient and economical performance of the job.
A BFOR may be brought to an applicant’s notice even before an application is submitted. In some jobs, the employer may make available to potential applicants certain physical or intellectual requirements for the position. A genuine BFOR is an exception to the prohibition that an employer cannot express in an advertisement a specification or preference that will discriminate against persons with disabilities.
Pre-employment testing is another occasion when notice of a BFOR is given to potential applicants. This may involve physical, psychological or intelligence tests. These are usually designed to test applicants against a certain standard that the employer deems is required for the job.
Sometimes consideration of whether a qualification is a BFOR may arise after an interview. For example, it may be that during an interview the applicant discloses the existence of a disability and inquires about accommodation. This may be the first time the employer has been approached for accommodation. After the interview the employer may consider the matter and determine whether the qualification is a BFOR.
It is important to realize that just because an employer determines that a certain requirement is a BFOR does not make it so. If this were the case, it would be easy for an employer to side-step the duty to accommodate. The employer could simply claim a qualification is a BFOR.
To protect people with disabilities against this potential abuse, the Supreme Court of Canada has set out guidelines for determining whether a job requirement is a genuine BFOR. These guidelines, like much of the law in this area, are broad and general. They are designed to encompass all the various scenarios that may arise in any particular situation. The guidelines are that:
- the employer must have established the job requirement for a purpose that is rationally connected to performing the job;
- the employer must have established the job requirement in an honest belief that the requirement is necessary to fulfill the work related purpose; and
- the job requirement must be necessary to accomplish the work related purpose. The employer must be able to show that it is impossible to accommodate a person with disabilities, to allow them to accomplish this work related purpose, without imposing undue hardship on the employer.
The first two steps are usually easy for an employer to meet. Usually the requirement has a rational connection to the job and usually the employer does honestly believe that the requirement is necessary.
Where issues can occur is determining whether a certain requirement is, in fact, necessary for performing the job and accommodating individuals with disabilities is impossible. For example, an employer may state that a requirement for a job is necessary for workplace safety. It may be that accommodation will pose a risk to the safety of fellow employees and others. If this is true, then the job requirement may be a BFOR and accommodation is not possible.
However, even in situations of safety, just because an employer says that a requirement is in place for safety reasons, does not make it so. In cases that have been litigated, Judges, Arbitrators and Tribunals have required the employer to prove that the job requirement is for safety reasons. If the employer cannot prove this, or if the employer’s requirement is more strict than necessary to maintain safety, then requirement is not a BFOR. A person with a disability who does not meet the requirement can be accommodated to achieve the same job results in a different way.
Two final points should be made about the duty to accommodate. First, perhaps obviously, the applicant must be qualified for the position. The duty of accommodation does not extend to creating a position for a person with a disability. The duty requires an employer to find the means to allow an otherwise qualified person to perform the job.
Second, the applicant should not expect perfect accommodation. Often, particularly with smaller employers, the employer may not be able to perfectly accommodate the individual. As part of the individual’s duty to co-operate in the accommodation process, sometimes compromise is necessary. In these cases, a less than perfect accommodation may be sufficient to fulfill the employer’s duty of accommodation.
So far this paper has discussed rights and responsibilities of employers and disabled applicants in a positive light, for the most part. For example, for the duty to accommodate, the rights and responsibilities of employers and applicants have been described as a process of trying to reach accommodation for a disability. The end goal for both parties has been presented as accommodation short of undue hardship.
In many cases employers do follow the law. They do not ask inappropriate questions in interviews and they do take their obligation to accommodate seriously. However, we do not live in a perfect world. Some employers do, intentionally or otherwise, engage in discriminatory practices. What are a person’s options if they have been discriminated against in a job search because of a disability? The discussion will now turn to enforcing rights under Human Rights legislation.
If a person believes they have been discriminated against in hiring, there are Human Rights Commissions in each province and at the federal level. They are operated by the provincial and federal governments. The Commission receives complaints of discrimination, such as if an employer refused to hire a person because of a disability.
Once a complaint is received the Commission conducts an investigation into the complaint. It seeks information from the complainant, the employer and potential witnesses. If the complaint is found to lack merit, the Commission can dismiss it. If there is merit to the complaint, the Commission will try to reach a settlement by mediation or discussions between the parties. Often times settlement of a complaint is preferable than going through the stress and uncertainty of a hearing.
If settlement is not possible, the complaint will be referred to a hearing. In some jurisdictions, such as in Saskatchewan, the hearing is before a Judge of the Saskatchewan Court of Queen’s Bench. In other jurisdictions, the hearing is before a Human Rights Tribunal. For example, hearings under the Canadian Human Rights Act are held before the Canadian Human Rights Tribunal. In either situation, the hearing involves the testimony of witnesses, cross-examination, legal argument and a decision by the Judge or Tribunal.
Of benefit to those who have Human Rights claims, the entire process is undertaken by the Commission at their expense. It is the Commission’s staff and lawyers who conduct the investigations and the hearings. The individual complainant does not have to hire and pay for their own investigator and lawyer. It is a process designed to be accessible to the public. However, it can be a long process. It may take months or sometimes years to reach a resolution, depending on the situation.
In order to prove discrimination the Commission, on behalf of the individual complainant, will have to prove that the individual has a disability, that the individual received adverse treatment and that the disability was a factor in the adverse treatment. Once this is done, the onus shifts to the employer to establish a defence. For example, the employer’s defence may be that the individual was not hired because of a BFOR. Generally, the issue at hearings is not whether the Commission can prove discrimination, but whether the employer can prove a defence.
The remedies that may be awarded by a Judge or Tribunal for a Human Rights violation can be more varied than in a regular lawsuit. The law treats Human Rights violations as amongst the most serious of civil wrongs. In a regular lawsuit, such as wrongful dismissal, the wronged party receives monetary compensation for lost pay. For a violation of a Human Right, the wronged individual can receive monetary compensation for lost pay, damages for pain and suffering due to discrimination and have made available the opportunity that was denied to the person discriminated against. It may also be ordered that the employer take measures to prevent a re-occurrence of the discrimination.
While the types of remedies available are greater than in a regular civil lawsuit, they are, generally speaking, “after the fact”. That is, the violation of the complainant’s rights has already occurred and that cannot be changed. What is sought is compensation after the fact for this wrong.
It is possible to seek an order that the employer offer the complainant the job he or she did not receive because of discrimination. However, whether this is a viable solution depends on the circumstances. It likely would be very uncomfortable for the complainant to go to work for the employer after a Human Rights hearing.
Nevertheless, it is important that such a wide range of remedies are available for complainants. They help deter future Human Rights violations.
To summarize was has been presented in this paper:
(a) Human Rights law is designed to protect people with disabilities, which includes;
(i) prohibiting discrimination in offering employment; and
(ii) providing a process, through the Human Rights Commission, for remedying violations of the rights of those with disabilities;
(b) during the course of a job search it is important to be aware that:
(i) an employer may not make inquiries into a disability without the applicant’s consent; but
(ii) if the applicant is seeking accommodation, the applicant should take the initiative by informing the employer of the disability;
(c) once the employer is made aware of a disability:
(i) the employer has a duty to accommodate the person with a disability to the point of causing the employer undue hardship; and
(ii) in finding an appropriate accommodation solution, the applicant must co-operate in the process, such as by supplying relevant information on the disability to the employer.