Disability Discrimination

Disability Discrimination Ultimate Guide

This is the ultimate guide to disability discrimination and a complete guide regarding suing for disability discrimination. In this Disability Discrimination Definite Guide, we'll talk about Ontario cases, Supreme Court cases, Human Rights Tribunal decisions, and decisions from other administrative tribunals regarding disability discrimination, protections available against disability harassment, and legal defence against disability claims. Continue reading to learn more.

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.

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How Much Severance Pay Do I Get?

Common Law vs. Employment Standards Act (ESA)

Apart from physical and mental disabilities, addiction and severe substance abuse, such as alcoholism and drug abuses, is classified as a form of substance dependence, which has been recognized as a form of disability.

For instance, in Entrop v. Imperial Oil Limited, the Court of Appeal has held in para. 89 that substance abuse such as drug abuse and alcohol abuse is "an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning", and that "Drug dependence and alcohol dependence ... are severe forms of substance abuse", and as such "substance abusers are handicapped and entitled to the protection of the Code". According to the Ontario Human Rights Commission's Drug or alcohol dependency and abuse as a disability:

The Human Rights Code also protects individuals who has had a drug or alcohol dependency in the past, or is perceived as having an addiction or dependency

Three most common types of disability discrimination:

Type 1: An employee was injured or suffered from a serious illness and was unable to return to work temporarily, claiming WSIB, STD, LTD; however, when the employee files a request to return to work after the treating physician deemed him or her fit to return to work, the employer denies the request and terminates the employee.

Type 2: An employee has been injured or suffers from an illness, resulting in an impairment that restricts his or her ability to be fully functioning at his or her job capacity, and when he or she requests accommodations, the employer fails to discharge the duty to accommodate and dismisses the employee.

Type 3: An employer refuses to promote or let go an employee based on the perception that the employee is addicted to drugs or alcohol, or that the employee has a history of addiction, without discharging the duty to investigate to determine whether that is true or whether the employee has overcome such dependency. HTW Law - Employment Lawyer, Contact Us Now

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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.

Disability Related STD and LTD, WSIB Claims

When filing a claim for Short-Term Disability (STD) and Long-Term Disability (LTD), insurance companies typically require employee, employer, and treating physician statements: - Employee statements are submitted by the claimant employee. Employee statements must be brief and precise in describing how the claimant's impairment prevents them from performing essential tasks, and a description of how the claimant's symptoms affect their ability to work, including a reference to specific activities required in that employee's job.