- Discrimination does not require intent. Effect is what matters.
- A protected ground need only be a factor in the treatment, not the sole reason.
- The duty to accommodate is a shared process, and it runs to the point of undue hardship.
- Undue hardship is a demanding standard, assessed on cost, outside funding and health and safety.
The framework
The Ontario Human Rights Code prohibits discrimination in employment on a list of protected grounds, including race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity and expression, age, marital and family status, disability, and record of offences.
It applies across the whole employment relationship, recruitment, terms and conditions, promotion, discipline and termination.
Intent is not the test
A policy applied uniformly can still discriminate if it has a disproportionate effect on a protected group and cannot be justified. This is adverse effect discrimination, and it is where most modern cases sit.
It follows that “we treat everyone the same” is not an answer. Sometimes treating everyone the same is exactly the problem.
The test is also not sole causation. The claimant must show the protected ground was a factor in the adverse treatment. It need not be the only one or the main one.
The duty to accommodate
Where a protected ground creates a barrier, the employer must accommodate to the point of undue hardship.
Accommodation is a process with obligations on both sides. The employee must make the need known, provide sufficient information to support it, and participate in finding a workable solution. The employer must investigate options seriously, consider them individually rather than applying a blanket policy, and implement a reasonable accommodation.
The employee is entitled to a reasonable accommodation, not to their preferred one. An employer that offers a workable alternative has generally met the duty even if the employee wanted something else.
Medical information
Disability accommodation raises the recurring question of what an employer may ask.
Generally an employer is entitled to information about the functional limitations and restrictions, the prognosis for recovery, and what accommodations are needed. It is generally not entitled to the diagnosis.
That distinction is frequently misunderstood in both directions, employers asking for more than they need, and employees declining to provide the functional information the process actually requires.
Undue hardship
Undue hardship is the limit, and it is a demanding one. Under the Code, only three considerations are relevant: cost, outside sources of funding, and health and safety requirements.
Cost must be quantifiable, substantial enough to alter the essential nature or viability of the enterprise, and demonstrated with evidence. Assertion is not enough.
Notably absent from the list: employee morale, customer preference, and inconvenience. None of these establishes undue hardship.
Bringing a claim
Applications go to the Human Rights Tribunal of Ontario. There is a limitation period, and it is shorter than for most civil claims.
Remedies can include compensation for lost wages, damages for injury to dignity, feelings and self-respect, and orders requiring the employer to change its practices.
A claim can also be advanced in a civil action alongside a wrongful dismissal claim, and where dismissal is alleged to be discriminatory that is often the better route, since both claims are then heard together.
Common questions
Is family status protected?
Yes, and it has been applied to childcare and eldercare obligations, though the analysis of when a conflict triggers the duty is fact-specific.
Can I be dismissed while on medical leave?
Not because of the leave or the disability. An employee on leave can be affected by a genuine reorganisation, but the burden of showing the real reason falls on the employer.
Does the employer have to create a new job for me?
Generally not, though it may have to modify an existing role or consider available alternative positions. The obligation is substantial but not unlimited.
What if I cannot return to work at all?
Where a disability makes it impossible to perform the essential duties in the foreseeable future even with accommodation, the relationship may be frustrated. That conclusion is reached carefully and on medical evidence.
Contacting us does not create a solicitor-client relationship. Please do not send confidential information until we have confirmed we can act for you. We aim to reply within 2 business days. Sending this form does not meet any court deadline or limitation period.
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