Human Rights and an Employer’s Duty to Accommodate

In Ontario, all employees are protected by a provincial law called the Human Rights Code (“Code“). The Code has a very important role in protecting people to ensure they are not discriminated against not only at work, but also when it comes to finding housing or buying services or products from companies across the province. But it is especially important when it comes to the workplace, because it ensures that an employer cannot discriminate against their employees for something that is beyond their control (i.e., a personal human characteristic).

Situations Employees are Protected From Discrimination at Work

The Code states that every person in Ontario must be treated equally by their employer without discrimination or harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

The right to “equal treatment” with respect to employment includes all stages of work and the workplace environment, including employment contracts, hiring and job applications, recruitment, training, overtime, promotions, discipline and performance evaluations, terminations and dismissals and temporary layoff.

As an employment law firm, Bune Law can assist employees in resolving a human rights (discrimination) issue involving their employer in all areas protected by the Code. Some examples of human rights cases for Ontario employees include disability, age, sex, religion and language.

In any of these (and other) instances where employees are protected from discrimination, employers must make reasonable efforts to ensure employees are not treated in an unequal and unfair manner compared to other employees.

Disability Discrimination – What is Duty to Accommodate?

Generally, employees in Ontario who have an illness or disability that affects their ability to continue doing their job can can request accommodation from their employer. For example, this means that an employee who requires time away from work for a surgery because of a physical injury, can ask their employer for a sick leave or to make other reasonable changes to their job, in order to allow them to perform their duties and responsibilities, while at the same time recovering from their illness.

In terms of what specific types of “accommodations” employees can ask for, the answer will generally depend on the employee’s individual circumstances. Examples of other forms of accommodation for disabilities that employment lawyers assist employers in obtaining include modified job duties, reasonable adjustments to their workstation or tools of the job, flexible work hours, or necessary time off work.

Duty to Accommodate – Notifying Your Employer

Once an employee requests accommodation for a disability, the employer must assess and determine how it can help the employee address their disability in the workplace. As part of the duty to accommodate, the employee must provide the employer with sufficient notice to explore what accommodation measures are necessary and can be put in place. The employer’s must ensure that it complies with its obligation under the Code to obtain all necessary information it needs to address the employee’s health situation, in order to balance: (a) its ability to continue normal business operations, and (b) the employee’s human rights.

Once an employee has requested requested accommodation and provided all appropriate medical documentation, the employer must generally provide all reasonable accommodations – unless it can prove providing what the employee requires would cause the company to suffer “undue hardship.” This is not an easy standard for an employer to meet, and the courts make it very hard for an employer to justify why they cannot accommodate an employee’s disability (human rights) needs. For instance, an employer’s financial costs in providing necessary accommodations is generally insufficient for establishing undue hardship.

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