"So many dreams at first seem impossible. And then they seem improbable. And then when we summon the will, they soon become inevitable."
~ Christopher Reeve

Tuesday, June 9, 2015

To Disclose or Not Disclose - Human Rights in the Workplace

I recently listened to an audiotape of a panel presentation entitled "Learning to Accommodate: A Step-By-Step Guide to Accommodating Employees with Learning and Intellectual Disabilities".

All in all, it was good and useful presentation - the Panel consisted of a former member of the CACL, a psychologist who specialized in learning disabilities, a law professor who specialized in labour and human rights issues and two lawyers - one who worked mostly for employers and one whom brought forward court cases on behalf of employees.

They did their best to represent all sides of the issue ... or should I say issues, given that it dealt with both employees with intellectual challenges and those with learning disabilities, two very different situations.

I have posted a couple of times on the issue of human rights in the workplace back in 2008 - 2009, but we haven't looked at the issue since. Before we go on, you might want to go back and read those old posts, just to give you a sense of how the human rights issue are dealt with in an employment context.

The one thing that struck me about this recent prensentation and that I wanted to share with you is the issue of whether an employee is obligated to disclose their disability to an employer, either in the hiring process or as a hired employee. I don't believe I touched on this issue back in 2008-2009 and that's too bad because it really is a very important dilemna that many employees and job-seekers face.

As we discussed previously, pursuant to both the Nova Scotia Human Rights Act and the Canadian Human Rights Act, employers are obligated to "accommodate" an employee with a disability. You can read more of exactly what this duty of accommodation requires an employer to do (and not to) here.* But the question for us today is this: How can an employer be expected to accommodate an employee if it is kept in the dark as to the employee's disabilities?

Sure, some disabilities are obvious to the naked eye but many are invisible. And even in those situations where the disability (and accommodations required) are obvious, can we automatically assume that means that all of the employee's needs will always be completely obvious?

In the situation in this video, the employer's discriminaiton is pretty blatant. The woman is in a wheelchair. The drafting table and the material on the shelves are too high for her to reach. It isn't rocket science (or, at least, it shouldn't be). But what if a physically challenged employee is also dealing with other issues that are not so obvious, such as fatigue or depression that effect their employment needs?

The bottom line is this: How can an employer legitimately be expected (and legally required) to accommodate disabilities of which it is unaware?

An employer has a has a duty to investigate the availability of accommodation options only IF it knows or should know of the person's disability and the need for accommodation. If the employer is legitimately unaware of the disability, there simply is no duty to accommodate, although one might arise later IF the disability comes to the employer's attention.

The case law is replete with instances of failed human rights claims where the employer never disclosed any information that would lead the employer to think they had a disability; often, even in cases, where the employer noted difficulties and went out of its way to enquire what it could do or offer the employee to help them meet the demands of the job.

And, really, can we honestly say that it should be any other way? You simply can't be expected (or obligated) to accommodate a disability you are totally unaware of. That is only fair.

I do realize that for many individuals with disabilities the decision as to whether or not to disclose a disability (and the accommodations required) to an employer or potential employer is a very difficult one. There are many factors to consider.

And yet, if the concern is that disclosure will result in the loss of employment, how are you any better off not disclosing and then losing your job because you could not meet the employer's expectations and your own failure to disclosure meant that the employer was under no legal duty to try to acccomodate you?

One way to approach this delicate issue might be not to disclose during the pre-hiring stage as it is far too easy for a potential employer to pass you over for a position without ever acknowledging that your disabiltiy played any part in that decision. However, once a person is hired, it really only makes sense (at least from a legal point of view and, in most cases, I think from a practical point of view, as well) to disclosure your disability to your employee and explore together what accommodations might be required.

Certainly, were a person to ever find themselves in a situation where they had been informed that they were not meeting the requirements of the job, I would say (speaking bluntly) that you essentially have two choices:
  • acknowledge your disability and discuss needed accommodations with the employer or 
  • accept the fact that there is a very good chance that you will soon be pounding the payment, looking for a job.

On a related note, the following is a list of some of the factors an employer is required to consider in assessing whether a particular accommodation might constitute  'undue hardship":
  1. Financial cost: Is it quantifiable? Is it related to the accommodation? Is it substantial? It may constitute undue hardship for an employer to continue to employ a disabled employee if there is insufficient meaningful work available for that employee.
  2. Impact on other employees, and on the collective agreement (e.g. on seniority rights, job posting provisions and shift and scheduling entitlements): Is it substantial? Accommodation proposals that violate collective agreement provisions are usually deemed reasonable only when no other option is available.
  3. Interchangeability of the workforce and facilities: Is it feasible to redistribute functions among employees?
  4. Operational requirements of the workplace: For example, excessive absenteeism, even when innocent, may constitute undue hardship if it threatens the proper functioning of the workplace.
  5. Safety: What is the nature of the risk, its probability, its likely severity, its impact? Depending on the degree of risk, the employee may or may not be entitled to voluntarily assume it. The threshold for undue hardship is lower when the safety of the public or other employees is affected.
  6. Problems of employee morale: An employer is not entitled to act on concerns that are themselves offensive to prohibitions against discrimination, e.g. other employees not wishing to work with a person who is disabled.
  7. Size of the employer's operations: The larger the business, the more affordable an accommodation measure is likely to be.

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