Does an employer have a duty to inquire about accommodation of a job candidate when the candidate has an obvious disability?
Question: Does an employer have a duty to inquire about accommodation of a job candidate when the candidate has an obvious disability?
Answer: There is no express statutory duty to inquire about a job candidate’s accommodation needs, even when they have an obvious disability. However, employers must ensure that the hiring process does not discriminate against applicants on the basis of human rights protected grounds. This means that employers must accommodate job applicants who, because of a protected characteristic, are unable to participate in the hiring process in the same manner as other applicants.
The extent of an employer’s duty to accommodate prospective employees, including the duty to inquire, has not been well-developed in the jurisprudence. However, human rights legislation applies broadly and provides protection against discrimination to all persons, regardless of whether they have already achieved employment status (see Yuille v. Nova Scotia Health Authority). This means that individuals have a right to have their disability accommodated during the application/interview stage of the hiring process, even before they may become an employee.
For example, in Trask v. Nova Scotia (Department of Justice, Correctional Services), a Nova Scotia Board of Inquiry considered whether a job applicant with dyslexia had been discriminated against during the application process. The board determined he had not been discriminated against, as evidence showed that he had indicated his need for accommodation and eventually received accommodation in the form of an oral rather than a written exam.
Conversely, in Winkelmeyer v. Ed Bulley Ventures Ltd., dba Woodlands Inn and Suites Hotel, the complainant was an individual with cerebral palsy who had applied for a room attendant position. His telephone interview went well, until he mentioned that he had a disability and used a cane. After that, the tone of the interviewer changed, and even though she agreed to call him back to arrange an in-person interview, no call-back was received. The B.C. Human Rights Tribunal found that the complainant had been discriminated against on the basis of disability.
The employer’s duty to inquire about an individual’s accommodation needs has been further developed in the jurisprudence regarding existing employees. Although the relationship differs, the principles can be applied to the hiring process.
Generally, employers cannot be held liable for a failure to accommodate where they are unaware of the needs of that employee, unless they reasonably ought to have known (Mager v. Louisiana-Pacific Canada Ltd.). The individual seeking accommodation for a disability in the workplace is under a duty to disclose sufficient information to their employer pertaining to their disability. This provides an opportunity for the employer to reasonably respond and consider adjusting the workplace environment.
While the onus typically falls on the individual seeking accommodation to make their needs known, human rights tribunals are lenient regarding the necessary degree of disclosure to fulfill the duty, as the Ontario Human Rights Tribunal explained in McLean v. DY 4 Systems: “Most authority indicates that the claimant will not be held to a high standard of clarity in communication, [which] is in keeping with the principles enunciated by the Supreme Court of Canada in respect of the need to interpret human rights legislation generously and purposively.”
The same rationale was applied in Danielson v. Grant Illuminated Signs and Others, where the B.C. Human Rights Tribunal affirmed that the duty to inquire can be triggered regardless of express notification of a disability, so long as the employee’s behaviour indicates a need for accommodation. Thus, an employer may have an obligation to inquire where there is a reason to suspect that a disability may impact the employee’s ability to perform the job.
The duty to inquire about accommodation of a job candidate depends on the circumstances. The Ontario Human Rights Commission’s third edition of Human Rights at Work speaks to the hiring process and stipulates that “where an applicant’s disability becomes an issue during an interview, an employer is expected to canvas the need for accommodation measures.” A job candidate’s disability may be an issue where the candidate chooses to discuss or disclose details of their disability during the interview process. In this situation the duty to inquire would be triggered, but the potential employer may only inquire about the disability as it relates to the job requirements.
Where a job candidate has an obvious disability, employers should provide them with an opportunity to disclose any need for accommodation. If it is clear that the disability will impact job requirements, employers may want to inquire about potential accommodations by offering support. Employers should avoid imposing limitations on candidates or showing a preference based on disability — the focus must be on canvassing possible accommodations and providing support. For example, the focus on accommodation rather than limitation is to ensure that inquiries are compliant with s. 8 of the Canadian Human Rights Act, which reads:
“ It is a discriminatory practice
(a) to use or circulate any form of application for employment, or
(b) in connection with employment or prospective employment, to publish any advertisement or to make any written or oral inquiry
that expresses or implies any limitation, specification or preference based on a prohibited ground of discrimination [emphasis added].”
Employers may consider implementing pre-interview questionnaires or standardized interview questions to facilitate the accommodation conversation with job candidates and reduce the risk that accommodation inquiries will be interpreted as implying a limitation.
Although most jurisprudence dealing with the duty to inquire arises out of the employer-employee context, it also demonstrates instances where the duty to inquire may arise in other contexts such as the hiring process.
For more information, see:
- Yuille v. Nova Scotia Health Authority, 2017 CanLII 17201 (N.S. Human Rights Comm.).
- Trask v. Nova Scotia (Justice), 2010 NSHRC 1 (N.S. Bd. of Inq.).
- Winkelmeyer v. Woodlands Inn and Suites, 2012 BCHRT 312 (B.C. Human Rights Trib.).
- Mager v. Louisiana-Pacific Canada Ltd., 1998 BCHRT 34 (B.C. Human Rights Trib.).
- McLean v. DY 4 Systems, 2010 HRTO 1107 (Ont. Human Rights Trib.).
- Danielson v. Grant Illuminated Signs and others, 2020 BCHRT 19 (B.C. Human Rights Trib.).
Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].
