Under the Ontario Human Rights Code (the “Code”), employers are prohibited from discriminating against employees based on enumerated or protected grounds. Traditionally, discrimination is understood as differential treatment based on these grounds, but there are also less straightforward forms, such as when an employer refuses to accommodate an employee’s disabilities.

Failure to Accommodate a Disability

When an employee discloses a valid human rights need related to their workplace, an employer is obligated under the Code to accommodate that employee’s human rights to the point of undue hardship. Failure to accommodate the employee’s disabilities to this extent constitutes discrimination in breach of the Code. This can open an employer to the risk of a human rights application, which may result in significant legal fees and damages.

Understanding Undue Hardship

“Undue hardship” is a contextual and factual analysis that considers various factors to determine how far an employer must go to accommodate an employee’s human rights in the workplace. These factors include the cost of accommodation, available external funding sources, and balancing human rights with workplace health and safety concerns. Business inconvenience and employee morale are not valid considerations for determining undue hardship.

The standard for accommodation varies from workplace to workplace. Each employer must perform a reasonable and objective assessment to maximize the employee’s accommodations while minimizing undue hardship.

Defining Disability Under the Code

Disability is one of the most common grounds for which employees seek accommodation. If an employee discloses a properly documented disability requiring workplace accommodation, or if the employer reasonably ought to be aware of the employee’s need for accommodation, the duty to accommodate to the point of undue hardship is engaged.

When Can an Employer Refuse to Accommodate a Disability?

An employer can refuse to accommodate a disability if it involves significant costs or if they cannot balance the employee’s needs with workplace health and safety concerns. The refusal must be based on an honest, reasonable, and objective consideration, with the employer having made all reasonable efforts to accommodate the employee.

Additionally, an employer can refuse accommodation if the employee fails to provide necessary evidence to confirm their disability. Employers are entitled to ask for medical information that confirms the disability but not for unnecessary details.

A medical note confirming the need for workplace accommodation is typically sufficient, but every case is context-specific and may require more information. Employers should act reasonably and request medical documentation if none is provided before refusing accommodation.

Employers should consult an employment lawyer to determine the appropriate steps before refusing to accommodate an employee’s disability. Not seeking such advice could result in significant legal fees and damages for discrimination in breach of the Code.

How a Human Rights Lawyer Can Support Cases of Failure to Accommodate a Disability in Ontario Workplaces

The complexities of the Ontario Human Rights Code, particularly regarding the duty to accommodate disabilities in the workplace, can be challenging for both employers and employees. A human rights lawyer plays a crucial role in ensuring that the rights and responsibilities of all parties are upheld.

Legal Guidance and Advice

A human rights lawyer provides essential guidance to employees who believe their employer has failed to accommodate their disability. They can explain the legal framework, help the employee understand their rights under the Code, and determine whether their case has merit.

Documenting and Presenting a Strong Case

Lawyers assist in gathering and organizing the necessary documentation to support a failure to accommodate claim. This includes medical records, communication with the employer, and any other evidence that demonstrates the employee’s need for accommodation and the employer’s failure to meet their obligations.

Negotiating with Employers

Often, disputes over accommodation can be resolved through negotiation rather than litigation. A human rights lawyer can represent the employee in discussions with the employer, aiming to reach a fair and reasonable accommodation agreement without the need for a formal legal process.

Filing Human Rights Applications

If negotiations fail, a human rights lawyer can help the employee file an application with the Human Rights Tribunal of Ontario. They will ensure that the application is thorough and accurately reflects the employee’s situation, maximizing the chances of a successful outcome.

Representation in Tribunal Hearings

During tribunal hearings, a human rights lawyer provides skilled representation, presenting the employee’s case effectively and countering the employer’s arguments. Their experience in human rights law is crucial in navigating the procedural and substantive aspects of the hearing.

Advocating for Appropriate Remedies

If the tribunal finds that the employer failed to accommodate the employee’s disability, the lawyer will advocate for appropriate remedies. These can include compensation for lost wages, damages for pain and suffering, and orders for the employer to take specific actions to accommodate the employee.

Supporting Employers in Compliance

Human rights lawyers also support employers by providing proactive advice to ensure compliance with the Code. They can help employers develop policies and procedures for accommodation, train management on their responsibilities, and assist in conducting objective assessments of undue hardship.

Mitigating Legal Risks

For employers, engaging a human rights lawyer can mitigate the risk of legal action by ensuring that accommodation requests are handled appropriately and in compliance with the law. This proactive approach can prevent costly and time-consuming legal disputes.

Contact Achkar Law

If you believe your employer has failed to accommodate your disability or if you are an employer seeking guidance on compliance with the Ontario Human Rights Code, contact Achkar Law. Our experienced team is ready to provide the support and advice you need.

Contact Information

• Phone: 1 (800) 771-7882
• Email:  [email protected]

Achkar Law serves clients across Ontario , offering comprehensive legal services in employment law, labour law, human rights law, and litigation. Reach out to us to schedule a consultation and discuss your specific needs with one of our knowledgeable human rights lawyers.

For more information or to book a consultation, visit our website or contact us directly. Our team is dedicated to helping you face the complexities of human rights and employment law.