Human Rights Provisions in Employment
The Ontario Human Rights Code, 1981, prohibits discrimination on the grounds of disability. This means that employment, services, goods and facilities cannot be denied to someone because they have a disability. The definition of disability in the Code includes “a learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language”.
In 2000, the Ontario Human Rights Commission (OHRC) published Policy and Guidelines on Disability and the Duty to Accommodate, in 2008 published “Human Rights at Work – Third Edition” and in 2016 published Policy on Ableism and Discrimination Based on Disability.
Job requirements and job interviews
The Ontario Human Rights Code states that the ability to perform the essential duties or requirements of the job is the significant factor an employer must consider when assessing if an applicant is suitable for a particular job, whether or not they have a disability. The essential duties or requirements refer to the central, or core, aspects of the job.
An employer may not ask questions about a disability during the job interview unless the potential employee has disclosed the fact that he or she has a disability. The employer can only ask questions related to whether the person can perform the essential job requirements. If the employee who has disclosed knows that they will need accommodations, they can explain what accommodations will enable them to perform the essential job requirements.
Accommodating the needs of the employee who has learning disabilities
Sometimes employees who have learning disabilities can perform the essential duties of a job when they are hired, but then the job requirements change and or the employee is switched to a job where they need accommodations.
According to the OHRC, accommodations for persons with disabilities must be provided in a way that respects their dignity, self-worth, individuality, privacy, confidentiality comfort and autonomy. Accommodations will vary according to a person’s unique needs, which must be considered, assessed and accommodated on an individual basis.
The Human Rights Code guarantees equal treatment to all persons capable of performing the essential duties or requirements of the job. No one can be judged incapable of performing those duties until efforts have been made to accommodate the individual, up to the point of undue hardship. The first step is to separate the essential from the non-essential duties of the job. Where possible, non-essential tasks can be reassigned to another person. The person with a disability should be actually tested to see if they can perform the essential requirements, with accommodations.
An employer can claim undue hardship if the cost of a requested accommodation is so high that the survival of the business is affected, or if they can demonstrate that health and safety requirements are negatively affected. Most accommodations required by persons with learning disabilities are not very expensive, especially for a large company.
Workplace Roles and Responsibilities
Employers and employees who have disabilities have a shared responsibility for making the accommodation process a success.
- It is the responsibility of persons with disabilities to:
- inform their employers of their needs;
- cooperate in obtaining necessary information, including medical or other expert opinions;
- participate in discussions about solutions, and
- work with the employer (and union if applicable) on an ongoing basis to manage the accommodation process.
Employers are required to:
- accept requests for accommodation in good faith;
- request only information that is required to make the accommodation;
- obtain expert advice or opinion where necessary;
- take an active role in ensuring that possible solutions are examined;
- maintain the confidentiality of persons with disabilities;
- deal with accommodation requests in a timely way, and
- bear the cost of any required medical information or documentation.
For people with learning disabilities much of the accommodation focuses on modified working environments, training programs, extra time to learn or carry out certain tasks, most of which does not represent any significant expenditure of money. Even the assistive devices which prove beneficial to employees with learning disabilities, such as computers, tape recorders, calculators, etc. tend to be mainstream equipment and therefore readily available in most places.
Accommodating the needs of workers with learning disabilities often involves strategies which require minimal or no financial outlay except in terms of additional supervisory time until a particular skill is mastered or weakness is overcome. Patience during the training period will be rewarded by a more confident and productive worker.
Many persons with learning disabilities can help by identifying accommodations that have been helpful to them in the past. However, sometimes it can be useful to get recommendations from a professional who has experience with learning disabilities.
Everyone involved must treat human rights issues arising in the workplace seriously and respectfully.