An Employer’s Obligation to Accommodate Individuals with Disabilities
It is important to accommodate individuals with disabilities, but an employer’s obligation to accommodate cannot extend to what they do not know or what they cannot be reasonably expected to know.
An employee who alleges workplace discrimination on the basis of a disability, must have provided the employer with sufficient information about his or her disability to be successful in this claim. Such was the case in a recent proceeding at the Ontario Human Rights Tribunal (2013 HRTO 1635 (CanLII)).
Terminated on the Basis of a Disability
Heather Stewart, a project manager with the Ontario government, amongst other claims, alleged she was terminated in a manner contrary to the Ontario Human Rights Code because she was terminated on the basis of her disability.
Ms. Stewart admitted she had not revealed her disability to the employer, but claimed that her employer ought to have known about her disability and accommodated her accordingly. She claimed that her poor work performance was a result of a failure to accommodate.
The Tribunal rejected this argument. The Tribunal noted that an employer does not have an obligation under the Code to offer underperforming employees accommodation in the absence of a known or ought to be known disability. And that without clearer information, it was reasonable for the employer to have concluded that the poor performance was skill related and terminated based on this.
An Employer May Not be Able to Accommodate
The decision speaks to the shared responsibility of both employee and employer in managing requests for workplace accommodation. An employer may not be able to accommodate if an employee does not reveal their disability to them.
All situations are different, and the above is not to be taken in whole or in part as legal advice. For any questions about your particular situation, feel free to contact the lawyers at Whitten & Lublin.