Disability Discrimination In The Workplace

Disability Discrimination in Canada: Introduction

Despite efforts by federal and provincial legislators to combat disability discrimination in the workplace, many qualified Canadians with disabilities are still being excluded from employment opportunities or face discrimination at work.

If you face unfair and discriminatory challenges at work, speak with an employment and disability lawyer immediately to protect your rights.

Disclaimer: The information in this post and everywhere else on this website is for general information only and is not intended to provide legal advice. No lawyer-client relationship is created by accessing or otherwise using Ertl Lawyers’ website or communicating with a lawyer or staff member. If you need legal advice, you can contact Ertl Lawyers. We’re more than happy to speak with you.

What You’ll Learn About In This Post

In this post, we will discuss the types of workplace discrimination, the effect of discrimination on individuals, the laws designed to protect employees from discrimination, how employees with disabilities can be accommodated, the remedies available to employees who’ve faced discrimination, and more.

Common Types of Disability Discrimination in the Workplace

Discrimination against individuals with disabilities can manifest in various forms within the Canadian workplace.

A. Disability Discrimination in Hiring

One area where disability discrimination often occurs is during the hiring process. Many individuals with disabilities face significant barriers when seeking employment, including negative biases held by potential employers.

For example, employers often refuse to hire candidates with “gaps” in their resumes, assuming performance or motivational issues. This practice discriminates against people who have had to take time off work for reasons related to a disability.

B. Direct Discrimination

Firstly, there is direct discrimination, which occurs when a person is treated less favourably due to their disability. This can include being denied a job, promotion, or training opportunity solely based on their disability.

Another example is when returning to work after a disability leave, a disabled employee is placed on modified duties. Despite their doctor’s clearance to return to full-time work, the employer places them in a lower-paying, part-time position due to incorrect assumptions that the employee could not withstand the pressures of their job and that their performance would be unreliable due to their previous medical condition.

Disability discrimination can also occur when companies refuse to provide benefits that are accessible to others or impose additional responsibilities that are not put on others without a valid reason. It is frequently motivated by unfavourable views, stereotypes, and bias.

C. Indirect Discrimination

Indirect discrimination, on the other hand, may arise when seemingly neutral rules, standards, policies, practices or requirements put individuals with disabilities at a disadvantage.

For example, if a company requires employees to work late hours without considering the potential impact on those with disabilities who may need accommodations.

D. Disability Discrimination Through Harassment

Another type of discrimination is harassment, which involves unwanted conduct related to a person’s disability that creates a hostile or intimidating work environment.

Harassment based on disability can take many forms, including:

• slurs, name-calling, or negative nicknames,
• offensive graffiti or images that depict people with disabilities negatively,
• ridiculing people because of disability-related characteristics,
• intrusive questioning or remarks about a person’s disability, medication, treatment, or accommodation needs and
• exclusionary behaviour.

E. Failure to Provide Reasonable Accommodations

Furthermore, failure to provide reasonable accommodations can also be considered discrimination.

Accommodations can range from physical modifications to the workplace, such as wheelchair ramps or accessible bathrooms, to providing assistive technology or flexible work arrangements. Failing to make these accommodations can significantly hinder the ability of individuals with disabilities to perform their job duties.

Effects of Disability Discrimination in the Workplace

Disability discrimination can have a profound impact on individuals’ employment prospects and overall well-being.

A. Limited Employment Opportunities

One significant consequence is the limited access to employment opportunities for individuals with disabilities. Despite their qualifications and abilities, many disabled individuals face significant barriers when it comes to finding and securing employment. This can perpetuate a cycle of financial insecurity and exclusion from the workforce.

B. Lower Wages / Worse Career Progression

Moreover, disability discrimination can also lead to lower wages and limited career progression for individuals with disabilities. Studies have shown that disabled workers often earn less than their non-disabled counterparts, even when educational backgrounds and experience levels are similar. This wage disparity not only affects the financial stability of disabled employees but also hinders their ability to achieve long-term career goals and financial independence.

C. Negative Effect on Mental Health

Additionally, disability discrimination can have detrimental effects on the mental health and well-being of individuals. Constantly facing prejudice and exclusion can lead to feelings of isolation, low self-esteem, and anxiety. These adverse psychological effects can further hinder an individual’s ability to participate fully in the workplace and contribute to their skills and talents.

D. Poisoned Work Environment Caused By Disability Discrimination

A poisoned environment may be created when unwelcome comments or conduct are widespread in a workplace, causing a hostile or oppressive atmosphere for one or more people from a Code-protected group.

Even a single remark or action can be severe enough to create a poisoned environment, despite the definition of harassment referring to repeated incidents. For example, if a manager denies an employee with chronic back pain the necessary paperwork for short-term disability leave and accuses them of faking their condition, it could constitute a poisoned work environment due to disability.

Canadian Laws Designed To Protect Against Disability Discrimination

In Canada, there are laws and regulations to protect individuals with disabilities from discrimination in the workplace.

Human Rights Laws

The Canadian Human Rights Act (CHRA) prohibits discrimination based on disability in federal workplaces and federally regulated industries. This legislation ensures that employees are protected against discriminatory practices and that employers are legally obligated to provide reasonable accommodations for individuals with disabilities.

Furthermore, each province and territory in Canada has its own human rights legislation that addresses disability discrimination. These laws typically mirror the CHRA and provide additional protection at the provincial level. For example, the Ontario Human Rights Code explicitly prohibits discrimination based on disability and outlines the duty to accommodate. Moreover, a person cannot be punished or threatened with punishment for trying to enforce their rights under the Code. This would be considered a reprisal.

Accessibility Laws

The Accessible Canada Act (ACA), another federal law, regulates organizations under federal jurisdiction to create a barrier-free Canada for persons with disabilities. The ACA sets accessibility standards in areas such as employment, transportation, and built environments, requiring employers and service providers to accommodate the needs of individuals with disabilities. This involves proactive measures such as identifying and removing barriers that prevent people with disabilities from accessing employment or services, creating accessibility plans, implementing feedback processes, and evaluating progress reports.

The Accessibility for Ontarians with Disabilities Act (AODA) is a provincial law establishing a barrier-free Ontario for individuals with disabilities. This legislation, similar to the federal ACA, sets standards for accessibility in five key areas: customer service, employment, information and communications, transportation, and the built environment. Organizations are obligated to undertake proactive measures to ensure accessibility, including the development of accessibility policies, provision of accessibility training, and removal of any impediments that prevent individuals with disabilities from accessing services.

The Common Law

Under the common law, discrimination against a disabled worker or creating (or permitting) a poisoned work environment may constitute a constructive dismissal, entitling the employee to severance pay and even human rights damages.  Courts sometimes award employees exemplary damages as well (where the employer’s behaviour was particularly egregious).