When the duty to accommodate begins
Question: Does an employer have to grant an accommodation request from a job candidate who hasn’t yet been hired? If the candidate isn’t hired, how does it make clear the request wasn’t a factor in the decision?
Answer: Legislation such as the Accessibility for Ontarians With Disabilities Act (AODA) in Ontario, for example, requires that employers accommodate candidates for employment, not just employees. This accommodation begins during the hiring process, when employers must make it clear that accommodation is available for anyone who needs it, even if they're not yet working for the employer.
A refusal to hire someone based upon a ground that is protected by human rights legislation will constitute discrimination and a breach of the job candidate’s human rights. A refusal to accommodate someone based upon such a ground is equally discriminatory and unlawful. If a candidate has a need for accommodation and informs the employer about it, the employer must assess the need and, if it is legitimate, the options available for accommodation must also be assessed.
The employer will have a duty to accommodate someone unless it can show that there is either a bona fide occupational requirement, or that accommodation would result in undue hardship for the employer. A employer's decision not to hire a job candidate must be based fully on the candidate’s qualifications and not any need for accommodation the candidate has expressed or other protected ground under applicable human rights legislation.
Detailed documentation in this regard is critical, and it is not sufficient to simply say that “we can't do it.” That said, employees are not entitled to their preferred form of accommodation. Employers are entitled to assess the options available and choose one that is reasonable and works best within their circumstances.
