Canadian Employment Law Today

September 22, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: There is no express statutory duty to inquire about a job candidate's accom- modation needs, even when they have an obvious disability. However, employers must ensure that the hiring process does not discriminate against applicants on the basis of human rights protected grounds. This means that employers must accom- modate job applicants who, because of a protected characteristic, are unable to par- ticipate in the hiring process in the same manner as other applicants. The extent of an employer's duty to ac- commodate prospective employees, includ- ing the duty to inquire, has not been well- developed in the jurisprudence. However, human rights legislation applies broadly and provides protection against discrimi- nation to all persons, regardless of whether they have already achieved employment status (see Yuille v. Nova Scotia Health Au- thority). This means that individuals have a right to have their disability accommodat- ed during the application/interview stage of the hiring process, even before they may become an employee. For example, in Trask v. Nova Scotia (De- partment of Justice, Correctional Services) , a Nova Scotia Board of Inquiry considered whether a job applicant with dyslexia had been discriminated against during the ap- plication process. The board determined he had not been discriminated against, as evidence showed that he had indicated his need for accommodation and eventually received accommodation in the form of an oral rather than a written exam. Conversely, in Winkelmeyer v. Ed Bulley Ventures Ltd., dba Woodlands Inn and Suites Hotel, the complainant was an individual with cerebral palsy who had applied for a room attendant position. His telephone in- terview went well, until he mentioned that he had a disability and used a cane. After that, the tone of the interviewer changed, and even though she agreed to call him back to arrange an in-person interview, no call- back was received. The B.C. Human Rights Tribunal found that the complainant had been discriminated against on the basis of disability. The employer's duty to inquire about an individual's accommodation needs has been further developed in the jurisprudence regarding existing employees. Although the relationship differs, the principles can be applied to the hiring process. Generally, employers cannot be held lia- ble for a failure to accommodate where they are unaware of the needs of that employee, unless they reasonably ought to have known (Mager v. Louisiana-Pacific Canada Ltd.). The individual seeking accommodation for a disability in the workplace is under a duty to disclose sufficient information to their employer pertaining to their disability. This provides an opportunity for the employer to reasonably respond and consider adjust- ing the workplace environment. While the onus typically falls on the in- dividual seeking accommodation to make their needs known, human rights tribunals are lenient regarding the necessary degree of disclosure to fulfill the duty, as the Ontario Human Rights Tribunal explained in McLean v. DY 4 Systems: "Most authority indicates that the claimant will not be held to a high stan- dard of clarity in communication, [which] is in keeping with the principles enunciated by the Supreme Court of Canada in respect of the need to interpret human rights legisla- tion generously and purposively." The same rationale was applied in Dan- ielson v. Grant Illuminated Signs and Others, where the B.C. Human Rights Tribunal af- firmed that the duty to inquire can be trig- gered regardless of express notification of a disability, so long as the employee's behav- iour indicates a need for accommodation. Thus, an employer may have an obligation to inquire where there is a reason to suspect that a disability may impact the employee's ability to perform the job. The duty to inquire about accommodation of a job candidate depends on the circum- stances. The Ontario Human Rights Commis- sion's third edition of Human Rights at Work speaks to the hiring process and stipulates that "where an applicant's disability becomes an issue during an interview, an employer is expected to canvas the need for accommoda - tion measures." A job candidate's disability may be an issue where the candidate chooses to discuss or disclose details of their disability during the interview process. In this situation the duty to inquire would be triggered, but the potential employer may only inquire about the disability as it relates to the job require - ments. Where a job candidate has an obvious disability, employers should provide them with an opportunity to disclose any need for accommodation. If it is clear that the disability will impact job requirements, employers may want to inquire about po- tential accommodations by offering sup- port. Employers should avoid imposing limitations on candidates or showing a preference based on disability — the focus must be on canvassing possible accom- modations and providing support. For ex- ample, the focus on accommodation rather than limitation is to ensure that inquiries are compliant with section 8 of the Cana- dian Human Rights Act, which reads: " It is a discriminatory practice (a) to use or circulate any form of appli- cation for employment, or (b) in connection with employment or prospective employment, to publish any advertisement or to make any written or oral inquiry that expresses or implies any limitation, specification or prefer- ence based on a prohibited ground of discrimination [emphasis added]." Employers may consider implementing pre-interview questionnaires or standard- ized interview questions to facilitate the accommodation conversation with job candidates and reduce the risk that accom- modation inquiries will be interpreted as implying a limitation. Although most jurisprudence dealing with the duty to inquire arises out of the employer-employee context, it also dem- onstrates instances where the duty to in- quire may arise in other contexts such as the hiring process. For more information, see: • Yuille v. Nova Scotia Health Authority, 2017 CanLII 17201 (N.S. Human Rights Comm.). • Trask v. Nova Scotia (Justice), 2010 NSHRC 1 (N.S. Bd. of Inq.). • Winkelmeyer v. Woodlands Inn and Suites, 2012 BCHRT 312 (B.C. Human Rights Trib.). • Mager v. Louisiana-Pacific Canada Ltd., 1998 BCHRT 34 (B.C. Human Rights Trib.). • McLean v. DY 4 Systems, 2010 HRTO 1107 (Ont. Human Rights Trib.). • Danielson v. Grant Illuminated Signs and others, 2020 BCHRT 19 (B.C. Human Rights Trib.). Brian Johnston, Q.C., is a partner with Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmck- elvey.com. Have a question for our experts? Email jeffrey.smith@keymedia.com Canadian HR Reporter, 2021 2 | | September 22, 2021 September 22, 2021 Asking a job candidate about accommodation Question: Does an employer have a duty to inquire about accommodation of a job candidate when the candidate has an obvious disability? Ask an Expert with Brian Johnston STEWART MCKELVEY, HALIFAX COMPANY'S on page 7 »

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