In late 2016 the Ontario Human Rights Commission (the OHRC) issued a new version of its policy on discrimination due to disability, which has been renamed the Policy on Ableism and Discrimination Based on Disability. In its press release announcing the update, the OHRC noted that since the policy was first launched in 2001, there had been significant developments in case law, research and international human rights standards which merited a review of the former policy. The new policy includes use of the term “ableism,” which the OHRC defines as “attitudes in society that devalue and limit the potential of people with disabilities.”
Notable updates include:
Employers may be particularly interested to note that the OHRC has now stated clearly that employers have a duty to proactively suggest and explore accommodation to someone who is “clearly unwell.” This obligation had been frequently discussed in HRTO, labour arbitration and court decisions but typically arose in cases where the employee had a mental health or cognitive issue that would impair his or her own ability to seek accommodation. However, in this new policy the OHRC cites a case where the Human Rights Tribunal of Ontario (the HRTO) found that an employer had discriminated against an employee who had a visual impairment when it did not inquire as to whether or not he needed accommodation. The decision cited is notable because the employee in question was already in an accommodated position. At some point, the accommodation provided was no longer sufficient to assist him in performing his duties. Although the employee never told his employer that the accommodation needed to be revisited and even though his disability did not prevent him from articulating his own need for accommodation, the HRTO nonetheless found that the employer ought to have linked the employee’s performance issues to the disability and proactively explored whether or not the accommodation arrangement needed to be updated. Given that the Ontario Human Rights Code (the Code) protects people from discrimination on the basis of perceived disabilities, employers faced with similar situations would be well-advised to be cautious in how they approach their employees to explore whether or not further accommodation is required lest the employee feel as though their performance issues are being unfairly attributed to their disability.
It should be noted that the OHRC’s policies are not the law nor are they binding on the HRTO. However, they are intended to provide guidance on how to meet our obligations under the Code and often provide a very good indication of how the HRTO will view complaints of discrimination. As always, employers are well-advised to ensure that they approach accommodation and disability-related issues thoughtfully and with a strong understanding of the underlying legal framework.