THE QUESTION
I have an invisible disability that makes going up and down stairs difficult. I applied for a sales associate job at a small retail store and it wasn’t until the interview stage that I learned that sales associates would need to go down to a basement stockroom frequently during their shift. They offered me the job, after which I disclosed my disability and requested accommodations by being put on shifts that had multiple staff who could do the basement runs instead. The store said they couldn’t accommodate my suggestions and rescinded the job offer. Can I report this to the Ministry of Labour?
THE FIRST ANSWER
Carly Poissant, lawyer, HHBG Lawyers – Employment Justice
Employers cannot discriminate against employees, volunteers or prospective employees based on specific “protected characteristics,” including disability. Your prospective employer’s decision to refuse accommodation and rescind its offer may constitute employment discrimination.
To prove discrimination in a complaint, you must show all of the following:
- You have/are perceived to have a protected characteristic(s);
- The employer’s conduct had a negative impact on your employment; and
- Your protected characteristic(s) was a factor in the negative impact.
A “disability” is a physical or mental condition that affects or is seen as affecting your abilities. Medical documentation showing your diagnosis and required accommodation can prove this element.
Also, the employer’s decision to refuse your accommodation request and rescind the offer will likely constitute a negative impact.
Finally, any evidence in which the employer refused your accommodation request and rescinded the offer may be used to prove that your disability was a factor. Your disability does not have to be the sole or majority factor in the employer’s decision; it only needs to be a factor.
The employer could justify its conduct if it can demonstrate that the accommodation would cause undue hardship. Undue hardship is fact-specific, but generally means that the accommodation would be unreasonably expensive or difficult for the employer, which may not be the case in your situation.
Your province/territory has a specific body that handles discrimination complaints which may be different from the Ministry of Labour. I encourage you to speak with an employment lawyer in your area for more information.
THE SECOND ANSWER
Antonio Urdaneta, employment, labour and workplace human rights lawyer, Workplace Legal, Toronto
Going to the Ministry of Labour is not effective. It would be better to file an application with the Human Rights Tribunal of Ontario. The Tribunal is the decision-maker when a potential employer takes back an offer after learning about the disability of a job applicant. And by the way, whether you knew or didn’t know that the job required going downstairs to a basement is irrelevant. What is relevant is your accommodation request.
Employers must not discriminate against a job candidate because of disability. Of course, if you are the most qualified candidate for the job – and you are because they offered you the job – they are supposed to accommodate you up to the point of undue hardship according to human-rights laws.
For you to do your job, employers must come up with a way to remove barriers you face because of a disability. This could be anything. The sky is the limit when it comes to accommodations. Actually, it is a creative process. As you say, it could be shifts with multiple staff, or installing a lifting device, or something else. The employer has the discretion about how the accommodation looks, but it needs to be reasonable.
The only way an employer can say “no” to an accommodation request is when they assess the request and find they have costs that will put them out of business, or if the only accommodation option that is available would put you or others in harm’s way.
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Andrea Yu