fbpx

What Are Examples of Disability Discrimination?

Close up of two feet in a wheelchair | disability claims denied

The Canadian Human Rights Act and the Ontario Human Rights Code prohibit discrimination against people with disabilities in Ontario and throughout Canada. Those laws also provide disabled people equal workplace opportunities and benefits without fear of discrimination. Employers cannot exclude disabled people for opportunities or benefits and must treat them equally. Employers can face legal action if they remove a benefit or impose a cost on someone by virtue of them being disabled.

Despite living in a tolerant and civil society, disability discrimination is subtle and occurs frequently. Because discrimination on the basis of one’s disability (e.g. physical, mental, etc.) is a legal question, what may be considered discrimination in one case may not be in another. Each person and business is different and must be assessed by a legal professional. Disability lawyers focus on this area of the law and may evaluate whether discrimination cases have merit and warrant legal action.

Below, we explore what disability encompasses and what circumstances may be deemed disability discrimination.

What Is a Disability?

Disability refers to a disorder that may be permanent or short-lived and which limits one’s ability to live or work. Disability can be physical, mental, developmental, intellectual or sensory. Mental health conditions like depression and alcohol dependence also qualify as disabilities and are legally protected against discrimination. 

Examples of Disability Discrimination 

Even with legislative support, disability discrimination remains an issue. For information about your specific case, consult a reliable disability lawyer.

Direct Discrimination

This is the bright line example of discrimination where people with disabilities are placed at a disadvantage or treated unfavourably because of their impairment or limitation. A typical example is rejecting someone for a job position because of their disability. 

Example: Phillip applies for a job at IT Telecomm Plus. He is successful in video interviews and is offered the position. Phillip then goes into the workplace to sign his contract, but the manager realizes Phillip is physically disabled and says “oh, you are in a wheelchair”. His contract is rescinded the next day, but Phillip is only advised that the company can no longer afford to fill the position. Phillip later finds out that the position was given to another applicant, notably not suffering from any visible disability.

Indirect Discrimination

Indirect discrimination occurs when a rule, practice or policy that appears to apply to everyone equally actually puts disabled people at a disadvantage.

Example: Joan doesn’t drive because she suffers from Vertigo. A new employer’s policy states that all staff must have a driver’s license in order to work with no exceptions. The policy places Joan at a disadvantage.

Discrimination is often hazy and may require a disability lawyer to confirm whether there is a sufficient evidentiary basis to mount a lawsuit. If you have a suspicion that something is not right about how you are being treated or feels off from appropriate conduct, it is important to trust your instincts in these types of scenarios. Speak with an employment or disability lawyer, preferably one who practises both, who can advise you on the specifics.

Duty to Accommodate

Human Rights law states employers must accommodate those with disabilities, including current and prospective employees. Accommodation ensures employers fulfil their duty to provide equal access to employment opportunities and benefits. Accommodation may require changes to the physical workspace or the provision of special tools or training to the point of “undue hardship”. 

Accommodation requires reciprocity and the free flow of information between employer and employee. This means that you cannot hide medical information or refuse to cooperate and expect legal recourse. Advising your employer of the existence and particulars of your disability allows them to provide anything necessary to facilitate your inclusion in the workplace. However, there is a fine line between your medical privacy and facilitating accommodation. Speak to an employment lawyer if you have concerns about this. 

Exceptions to Duty to Accommodate

An employer’s duty to accommodate ends if that accommodation will adversely impact them to the legal standard of “undue hardship”. There is no single definition of undue hardship because it ties back to how the employee’s medical condition must be considered in light of business needs. Generally, disbursing large expenses to accommodate someone may be considered undue hardship. The company does not have to create a whole new position if you cannot work your previous role because of a disability. They do however have to allow you to work in another role at the same compensation, if you can do so adequately.  Your disability lawyer can answer any questions about what constitutes undue hardship and what doesn’t.

Sometimes an employer cannot accommodate someone due to a genuine occupational requirement. The classic case is a firefighter is genuinely required to be mobile as a condition of employment. As well, a company bus driver must be able to see to fulfil their role. If a person cannot see or is not mobile and requests accommodation, an employer can refuse to employ them and it will not generally be considered disability discrimination. Employers must be able to demonstrate that the factor, standard or rule is essential to the position and that changes would cause undue hardship.

Your Disability Lawyer in Ontario

Please contact our office at 416 223 5391 or fill out our online form which is secure and confidential.

You will be given a free assessment and if it is appropriate and beneficial to you, our staff will arrange for a consultation with one of our staff of Disability  Lawyers at no charge to you.
Facebooktwitterlinkedintumblrmail