HR Inclusive Policy Toolkit
Ableism refers to attitudes in society that devalue and limit the potential of people with disabilities. Ableism may be conscious or unconscious, and may be embedded in institutions, systems, or the broader culture of a society. It can limit the opportunities of people with disabilities and reduce their inclusion in the life of their communities. Ableist attitudes are often based on the view that disability is an “anomaly to normalcy,” rather than an inherent and expected variation in the human condition. Ableism may also be expressed in ongoing paternalistic and patronizing behaviour toward people with disabilities.6
An individual Accommodation Plan is a written document that lists the accommodations an employee with a disability needs to make their job accessible. An Accommodation Plan ensures that the employer and employee (and any others involved) clearly understand their roles and responsibilities. The Accommodation Plan can be used for the purposes of accountability and monitoring.
Anything that hinders or challenges the full and effective participation in society of people with disabilities including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy, or a practice.
Bona Fide Job Requirements
Bona fide job requirements are duties that are essential to the completion of a job. Requirements are not bona fide if they relate to incidental duties instead of essential parts of the job or are based on co-worker or customer preferences.
To be a bona fide job requirement, the requirement must be (1) rationally connected to the performance of the job, (2) adopted by the employer in a good faith and honest belief that it was necessary to accomplish the purpose for which it was adopted, and (3) reasonably necessary to accomplish the legitimate work related purpose for which it’s adopted (to prove this, it must be shown that it is not possible to meet that purpose with accommodation up to the point of undue hardship).
The definition of disability varies by province so check the legislation applicable to the local context.
The most widely accepted definition of disability is provided by the World Health Organization: Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations.7
The Ontario Human Rights Code states that a disability may have been present at birth, caused by an accident, or developed over time. It defines “disability” as:
- any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
- a condition of mental impairment or a developmental disability,
- a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
- a mental disorder, or
- an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.8
Discrimination is an action or a decision that treats a person or a group adversely in a way that is related to a protected characteristic identified by human rights law, such as race, age or disability. These protected characteristics, also called grounds, are protected under the Canadian Human Rights Act and provincial human rights legislation. Grounds for Discrimination in Canada that are generally recognized in these various forms of legislation are:
- national or ethnic origin
- sexual orientation
- gender identity or expression
- marital status
- family status
- genetic characteristics
- a conviction for which a pardon has been granted or a record suspended
Discrimination does not have to be intentional. Intent is irrelevant for establishing that discrimination occurred. All that matters is that an adverse effect is experienced and that effect is connected to a protected ground. That can include constructive discrimination, where a rule or requirement that isn’t discriminatory on its face has an adverse impact on a person because it presents a barrier due to their disability.
Discrimination is often subtle. Discriminatory remarks are not often made directly, and people do not usually voice stereotypical views as a reason for their behaviour. Subtle forms of discrimination can usually only be detected after looking at all of the circumstances to determine if a pattern of behaviour exists.
Duty to Inquire
The duty to start a conversation about accommodation may shift to the employer if they know or ought to know from changes in an employee’s attendance, behaviour or performance that the employee may need some form of accommodation. This is called the duty to inquire.9
An inclusive workplace means that all employees have the opportunity to contribute and participate in the workplace in a barrier free environment. Critical to the notion of an inclusive workplace is a robust accommodation policy.10
There are various types of service animals who support people with various types of disabilities. The law requires service animals to be permitted in the parts of the premises that are open to the public. In cases where another law prohibits a service animal from entering certain areas (e.g. a service animal would not be allowed in the kitchen of a cooking school), provide another way for the person to access the business’ goods, services, or facilities.
A person with a developmental disability may have support workers or family members who assist them and may ask to be present at times such as interviews or meetings.
Supported Employment is a person-centred approach to assisting individuals with disabilities to prepare, obtain, and maintain integrated, competitive, paid employment. A variety of support is tailored to individual requirements.
Systemic (or institutional) discrimination consists of attitudes, patterns of behaviour, policies, or practices that are part of the social or administrative structures of an organization or sector, and that create or perpetuate a position of relative disadvantage for people with disabilities. The attitudes, behaviour, policies or practices appear neutral on the surface but nevertheless have an “adverse effect” or exclusionary impact on people with disabilities.11
The Supreme Court of Canada has stipulated that a person’s disabilities must be accommodated unless the employer or service provider can prove that doing so would be an “undue hardship.”
Due to the individualized nature of “accommodation” or “undue hardship,” it is difficult for courts to provide a comprehensive and specific definition or what these terms will require. Instead, it describes these terms using general principles, which are applied to specific circumstances on a case by case basis.
“Undue hardship” describes the point beyond which employers are not expected to accommodate. The factors to be considered in determining whether there is undue hardship from accommodation are not entrenched, except to the extent that they are expressly included or excluded by the relevant statute in your jurisdiction.
For example, an accommodation would generally be considered overly burdensome if it would impose undue hardship or undue risk to the health or safety of any worker. Alternatively, an employer may be able to claim undue hardship if the cost of a proposed accommodation is considered excessively high, thus jeopardizing the business’s survival, or if the accommodation threatens to change the business’s essential nature (though cost-based defenses to discrimination claims can be difficult to sustain). The relative importance of these factors varies on a case-by-case basis. However, the term “undue” implies that there may necessarily be some hardship in accommodating someone’s disability, and unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate.
The requirement to accommodate up to the point of undue hardship means that employers must identify and eliminate any rules that have a discriminatory impact that cannot be justified under the law.
The goal is to prevent barriers to accessibility from occurring in the first place, rather than having to remove them retroactively. When we design inclusively from the start, our products and services work for everyone. Accommodation also means changing rules or practices to allow people to do things in a different way.
EXAMPLE: a small business’s installation of an elevator is likely undue hardship, but the installation of a front door ramp is not.
A claim of undue hardship must be supported with facts. It is not enough to claim undue hardship based on an assumption or opinion, or because there is some cost. Employers must be able to substantiate the nature and extent of the hardship. They should also be able to show that all reasonable means of accommodation have been exhausted. To satisfy a claim of undue hardship on the basis of cost, the financial impact of the accommodation would typically have to be so great that it would either change the essential nature of the organization’s operation, or it would substantially impact the employer’s financial viability.
Employers should be innovative, practical, and timely when considering accommodation options. If an individual’s need for accommodation can be met without imposing undue hardship on the employer, a refusal to accommodate is not justified.
The following are examples where accommodation could cause undue hardship:
- an employer cannot accommodate without seriously impacting business operations;
- an employee will not be able to return to work in the foreseeable future or is absent so often that it is no longer possible to accommodate them without causing the employer serious financial hardship;
- the employee’s position is safety sensitive and, as a result, accommodation may pose a safety risk to the employee, his or her colleagues, clients and / or the public.