Disability Discrimination Ultimate Guide
What is Disability Discrimination?
“Disability” is defined at section 10(1) of the Ontario Human Right Code (the Code) and includes physical and mental conditions as well as workplace injuries. The test for discrimination on the ground of disability requires an applicant to demonstrate (1) they are a person with a disability as defined by the Code, (2) they were subjected to differential or adverse treatment in employment; and (3) their disability was at least one factor in their treatment.
Section 17 of the Code is an interpretive provision which effectively creates a duty to accommodate on an employer to the point of undue hardship for a disabled employee who can still perform the essential duties of their job. Section 17 (2) specifies the factors relevant to undue hardship, being cost,
outside sources of funding, if any, and health and safety requirements, if any. Business inconvenience is NOT a factor in the analysis.
While physical disability is often easier to comprehend, mental disability is more complex and may sometimes be invisible to the average onlookers. Section 10(1) of the Code provides a broad definition of disability, which covers mental health disabilities under subsection (b) a “condition of mental impairment” and (d) “mental disorder.”
The Legal Test and the Consequence of a Finding of Disability Discrimination
Section 5 of the Human Right Code states that an employer cannot discriminate a person based on disability.
According to the Misetich approach as established in Misetich v. Value Village Stores Inc., 2016 HRTO 1229, the test for discrimination is as follows:
- The Applicant must establish they have a characteristic protected from discrimination under the Code;
- The Applicant must establish an adverse impact; and
- The Applicant must establish the protected characteristic was a factor in the adverse impact.
