Canadian HR Reporter

www.hrreporter.com 37 C O L U M N S T O U G H E S T H R Q U E S T I O N Have a particularly difficult or interesting question? Why not share it with us? Email: sarah.dobson@keymedia.com Have a question? WHAT IS PERCEIVED DISCRIMINATION? Q Is there a difference between a perceived disability and an actual disability in determining workplace discrimination? A Canadians are protected under human rights legislation with respect to employ- ment if they are treated differently on the basis of disability. The term "disability" is broadly defined and includes a wide range and degree of conditions. Canadian employers understand the legal requirements related to accommodation and the threshold of undue hardship. However, in many jurisdictions, legislation also protects employees against "perceived discrimination," which is generally defined as differential treat- ment based on a perceived disability. For example, the Ontario Human Rights Code prohibits denying someone employment because they are "believed to have or to have had a disability." The Supreme Court of Canada has recog- nized that discrimination may be based as much on perceptions, myths and stereotypes as on the existence of actual functional limita- tions. Rather than create an exhaustive defini- tion of disability, the top court has adopted an equality-based framework emphasizing human dignity, respect and the right to equality. Even in jurisdictions without a specific provi- sion on perceived disability, treatment based on a perceived limitation can constitute discrimi- nation. Understanding this distinction can be difficult, particularly where an employee may appear to have a disability but has not sought accommo- dation. Even well-intentioned employers may find themselves liable for discrimination where there is differential treatment based on char- acteristics "attributed" to an individual, even if they do not exist. The following examples might help: • An employee who has in the past suffered from an illness that, at the time, impacted their ability to perform a job is denied a job oppor- tunity due to the concern that they could be at a higher risk of developing a future disability. • An employee is subject to harassment based on sexual orientation on the perception that the employee may not be heterosexual. The employer dismisses the complaint because it knows the employee is heterosexual and, therefore, it considers the harassment harmless. In both cases, the employer may be liable for discrimination even though the disability is not specifically identified. The analysis then is whether the person is perceived to be a member of a protected group, even if this view is not accurate, and should consider the perceptions, myths and stereotypes underneath a person's experience and the subjective impact of the treatment. In other words, decisions based on percep- tion, even if well intended, can still constitute discrimination. Does this mean further obligations on employers with respect to accommodation? Not really. The law in this area is not new and many employers have internalized the assess- ment of discrimination on the basis of perceived disability. Common sense is often as important as any other tool available to employers. For example, in determining suitability for a specific job or opportunity, avoid jumping to conclusions about an employee's capabilities, particularly if that employee has experienced a disability in the past but has returned to full duties. Stick to an assessment of performance and suitability based on the actual duties of the job, not what "may" be involved. It might be necessary to make inquiries in specific circumstances where it is necessary to establish an ability to work safely. In such a case, determining suitability or accommodation should be based on the essential duties of the job, not irrelevant factors that are perceived to be relevant. In addition, accommodation is a multi-party inquiry. Ensuring the employee not only is afforded the opportunity for input but also actively participates is an important step. A good process with the training of supervisors or management on the risks of bias and perceived discrimination, along with proper assessment of job requirements, suitability and accommo- dation, is the best defence against a claim that there has been discrimination on the basis of a perceived disability. CHRR Workplace discrimination can cause legal liability for employers. Decisions based on the perception of an employee's limitations, regardless of how wrong or well intended they are, can constitute discrimination, says Lorenzo Lisi of Aird & Berlis Lorenzo Lisi Partner and leader of the Workplace Law Group at Aird & Berlis in Toronto

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