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Employee Claiming Adverse Discrimination: Employer’s Knowledge of Disability is Unnecessary

Whitten and Lublin | Dec 01, 2017

An employer has the duty to accommodate an employee that is negatively impacted by a workplace policy or requirement due to disability up to the point of undue hardship. This alone is a high standard of accommodation that warrants an analysis of the circumstances in each particular case. However, whether the employer is knowledgeable of an employee’s disability of not, a claim of adverse discrimination can still be made on the basis of a disability.

In order for an employee to claim adverse discrimination, three factors must be met: (1). the employee must have a characteristic that is a protected ground of discrimination under human rights law (ex. illness/disability); (2). there must also be an adverse impact experienced by the employee (ex. loss of employment); (3). the employee must also demonstrated that the adverse impact suffered was at least in part due to the protected ground of discrimination.

The reason an employer’s knowledge is not necessary in order for an employee to claim adverse discrimination is do to the legal and judicial interpretation of human rights law. The impact of a job requirement or policy is all that is necessary to establish a discriminatory effect.  Thus an employers’ knowledge is not necessary for an employee to make a claim of discrimination. This is not done to punish employers; however, this standard was adopted in order to ensure negative impacts are remedied.

If you are an employee that feels a workplace standard or policy has impacted you due to a disability or illness, it is important to seek assistance from the human rights commission or an employment law expert. An example may be failing to meet objective criteria due to physical or mental impairment, ultimately leading to job loss, demotion, lost wages or any type of adverse impact resulting from an illness or disability.