| May 2005 | ||||||||||||
| Welcome to the May 2005 edition of the TorontoJobs.ca Employer Newsletter.
“What the duty to accommodate requires of employers” (useful information for companies with disabled employees), by Earl Altman, Partner, Fogler, Rubinoff, LL.P. Job Listing Advice - Are Candidates using company time to look for a new job? You bet! Special Offer - Post a Job Listing at a Discounted Price Article: Employees with Disabilities What the duty to accommodate requires of employers By Earl Altman, Partner, Fogler, Rubinoff LL.P. The Ontario Human Rights Code provides that "every person has a right to equal treatment with respect to employment without discrimination because of…disability." Disability is then defined quite broadly in s.10 of the Code to include physical, mental, or developmental disability. It also includes learning disabilities and mental disorders. The definition specifically mentions certain illnesses such as diabetes, epilepsy, blindness or deafness. The Code goes on to define a category of "constructive discrimination" as discrimination resulting from "exclusion, restriction, or preference which excludes a named group. The duty to accommodate is set out in s. 17 of the Code which provides that it is not a prohibited discrimination where a person is discriminated against in employment as a result of his or her inability to perform the duties of the job because of a handicap unless this handicap can be accommodated by the employer without undue hardship. The issue for employers is how far they must go to accommodate the disability in question. Unfortunately, the Human Rights Code does not assist in this regard. There is no benchmark set to determine when the accommodation will be found to be an undue hardship on the employer, thereby absolving the employer from the obligation to accommodate. An employer can defend a charge under the Code on the basis either that the requirement which results in the discrimination is based on a bona fide requirement of the position, or that the complainant is, by reason of his handicap incapable of performing the job. The Supreme Court has held that the Courts must ask three questions to determine if either defence will succeed... [more]
It is under this last criteria that the Court will consider whether the complainant could be accommodated in meeting the standard without imposing undue hardship on the employer. In considering complaints under these two sections, the Courts have sought to balance the employee's right to be free of discrimination with the employer's need to manage its business safely, efficiently, and profitably. In one case, the Supreme Court of Canada commented that by using the phrase "undue", the legislature concluded that some hardship is acceptable. In a subsequent decision of the Supreme Court, the Court defined undue hardship was defined hardship as something which is impossible, or something which imposes serious risk, or excessive cost on the employer. The Courts have considered a number of factors in applying the test set by The Supreme Court of Canada. For example, the larger the employer and the greater its resources, the further it will be required to go in accommodating disabled employees. The Courts have also held that employers must be pro-active in their efforts to accommodate and should consider all available options. In the event of a complaint, the employer should be prepared to show why a specific option, which would have accommodated the employee’s disability, was considered and rejected, or not considered at all. There are some limits to the employer's obligation to accommodate. For example, the employer is not required to create a new position to satisfy the needs of the employee. Nor is an employer required to maintain a position indefinitely for an employee who cannot attend, work due to a disability, although the question of how long an employer must wait to determine this fact has not been settled by the Courts. Finally, an employer does not have to accommodate an employee who is uncooperative in the accommodation efforts. Obviously, the obligations on an employer to accommodate are complicated and largely fact-driven. If you have any questions regarding the obligation to accommodate or whether the efforts being made meet the requirements of the Code, you should contact a lawyer or the Human Rights commission. About the author: Advice: The Best Time to Post a Job Listing Are Candidates using company time to look for a new job? Did you know that the peak times for candidates surfing on-line for jobs are between 10 a.m. and 2 p.m. on Mondays, Tuesdays and Wednesdays? Therefore, for maximum coverage of your on–line posting, the best time to post is by Monday morning. To better serve our growing community of Employers, TorontoJobs.ca has reviewed our job listing packages and developed a new, simpler, and more effective pricing schedule.
Full details are available on our pricing page. Feel free to contact us if you have any questions about our pricing or subscription services. Special Offer: Post a Job Listing at a Discounted Price Available for a limited time We would appreciate your future business, and for a limited time only, we are reducing our single posting rate by 25% to $150 (plus GST). (Regular single posting rate is $200). If you would like to take advantage of this special offer, please email sales@torontojobs.ca or call 905-566-JOBS (5627) to make arrangements. This offer is valid until July 1, 2005. We still recommend that the most cost effective approach to your hiring is an unlimited posting package which allows you to post all your jobs at one low price. Custom packages can be assembled to meet your specific requirements. To discuss an unlimited package and how TorontoJobs can help you, please contact sales@torontojobs.ca, call 905-566-JOBS (5627), or fill out our Subscription Form. Thank you for taking the time to read our Employers Newsletter. If you have any questions or comments about the content of this newsletter, or would like to learn more, please feel free to contact us.
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