Under the Ontario Human Rights Code, everyone has the right to be free from discrimination because of handicap in the social areas of employment, services, goods, facilities, housing, contracts, and membership in trade and vocational associations. This means that persons with disabilities have the right to equal treatment, including the right to accessible workplaces, public transit, health services, restaurants, etc.
The right to be accommodated, and the corresponding duty of an employer to accommodate, are now well established. Accommodation is a fundamental and integral part of the right to equal treatment. The duty toaccommodate means that the conditions of the workplace, or the functions of a job, may have to be changed. This requires that an employer beaware of the standards for accommodation. Inassuming what should be a pro-active approachto accommodating disability, employers should keep in mind that the needs of persons with disabilities must be accommodated in the manner that most respects their dignity, that each employee has unique needs, and that it is important to consult the person who will receive the accommodation to ensure that adequate accommodation is made available.
The accommodation process is a shared responsibility. Everyone involved should cooperatively engage in the process, share information, and avail themselves of potential accommodation solutions. An individual with a disability is required to:
- Advise their employer of the disability;
- Make his or her needs known to the best of their ability, in order that the employer may make the requested accommodations;
- Provide information regarding relevant restrictions or limitations, including information from health care professionals;
- Participate in discussions regarding possible accommodation solutions;
- Co-operate with any experts whose assistance is required to manage the accommodation process;
- Meet agreed upon job performance and job standards once accommodation has been provided;
- Work with the employer on an ongoing basis to manage the accommodation process;
The employer is required to:
- Accept the employee’s request for accommodation in good faith;
- Obtain expert opinion or advice where needed;
- Take an active role in ensuring that alternate approaches to accommodationare investigated;Grant accommodation requests in a timely manner;
- Maintain confidentiality.
Terminating or Disciplining an Employee with a Disability
Before terminating or sanctioning an employee for “unacceptable behaviour”, an employer might first consider whether the actions of the employee are caused by a disability, especially where the employer is aware, of or perceives that, the employee has a disability. Employers are under an obligation to inform all employees that a disability related-assessment or accommodation can be provided as an option to address performance issues. Progressive performance management and discipline as well as employee assistance programs ensure that all employees have a range of opportunities to address performance issues on an individualized basis before sanctions or termination are considered.
Employers are responsible for dealing effectively, quickly and fairly with situations involving claims of harassment or discrimination. An employer can be held liable where they or staff members in authority do not act to end discrimination or harassment in the workplace. When an act of harassment or discrimination is ignored, there are costs in terms of low morale, high stress, damage to professional reputations, and employee absences. Developing internal antidiscrimination policies and procedures to resolve complaints as part of a broad program to build a harassment free and a discriminationfree environment offers many benefits. Dealing promptly with these issues saves time and money.
Employers must develop the necessary strategies to avoid and resolve human rights issues that arise in the workplace. This strategy includes an anti-harassment or anti-discrimination policy, disability accommodation policies, a complaint resolution procedure, and on-going educational programs for employees.