Jobseekers 'need to point to evidence that there is a connection between the events in question and a protected ground,' says lawyer
The Ontario Human Rights Tribunal has dismissed a worker’s application alleging discrimination based on disability under the Ontario Human Rights Code due to a lack of evidence showing a connection between the worker’s disability and an employer’s refusal to hire him.
The worker was a member of the United Brotherhood of Carpenters and Joiners of America, Local 1256. On Feb. 13, 2018, he participated in an onboarding orientation, with eight other union members, at a worksite operated by Kel-Gor Limited, an industrial contractor and fabricator in Sarnia, Ont. The onboarding orientation was for employment opportunities at the worksite and was conducted by Kel-Gor’s safety advisor.
The worker had previously worked for Kel-Gor in 2015 and 2017. On both occasions, he participated in the company’s onboarding orientation.
The worker had medical disabilities and had requested accommodation during his previous stints with Kel-Gor. This made him particularly concerned about his future accommodation when he attended the onboarding orientation in 2018.
During the orientation, the worker raised concerns about Kel-Gor’s alcohol and drug policy and how it might conflict with his medication requirements stemming from his medical disabilities and his potential need for accommodation.
Accommodation during recruitment process
Although the worker and Kel-For didn’t appear to fully discuss accommodation in this case, if a need for accommodation was identified during an onboarding process, the employer would be required to provide reasonable accommodation, says Ozlem Yucel, an employment lawyer at Turnpenney Milne in Toronto.
“Courts and tribunals have interpreted employment to include the recruitment and onboarding process, so the prohibition against discrimination and the protections under the code from discrimination in employment extend to job applicants,” she says.
The worker wasn’t satisfied with the safety advisor’s response to his concerns, so he didn’t complete the required documentation – which was a prerequisite to being hired. Seven of the eight other union members completed the orientation and were hired, while the worker and another member who didn’t sign the documents were not.
The worker filed a human rights application alleging that Kel-Gor discriminated against him on the basis of his disability when it didn’t hire him because it didn’t want to accommodate his disabilities.
The tribunal conducted a summary hearing, as per its Rules of Procedure, to determine whether the application had a reasonable prospect of success. The hearing focused on whether the applicant could provide any evidence beyond his personal suspicions to support his claim of discrimination.
Speculation not evidence
The tribunal, assuming all of the worker’s factual allegations were true, found no reasonable prospect of success for his claim. It concluded that the applicant failed to provide evidence linking Kel-Gor's actions to any form of discrimination under the code. The tribunal emphasized that a strongly held belief does not constitute evidence of discrimination, and mere speculation about potential future accommodation issues does not establish a code violation.
In this case, the worker asserted that he had a protected ground under the code and that he suffered adverse treatment, but he provided no support other than “a bald assertion” that the adverse treatment was related to his protected ground, the tribunal said, adding that he may have had heightened concerns about whether his disabilities would be accommodated once hired, but it was only speculation that discrimination might occur at that point.
At the summary during stage, the tribunal is looking to determine whether an application has any reasonable prospect of success - they're looking primarily at the applicant's evidence, assuming it to be true, and determining whether what's alleged may reasonably be considered to be a violation of the code, according to Yucel.
“The worker was alleging discrimination based on disability, so to tie that into the legal test, the worker must show that they suffered some form of adverse differential treatment based on their disability, she says. “To prove that there is a reasonable prospect of success in that position, they must point to evidence that the events in question are connected to their disability - that was really the problem here, that the worker wasn’t able to point to that evidence.”
The tribunal found that Kel-Gor’s requirement to sign the onboarding orientation documents wasn’t discriminatory and that was the reason the worker wasn’t hired – another union member wasn’t hired for the same reason.
“It's not unusual for employers to require contracts and policies to be executed prior to hiring - that in and of itself isn't problematic, as long as there are no discriminatory elements,” says Yucel. “The tribunal said there's nothing discriminatory about requiring prospective employees to sign the onboarding orientation documentation before proceeding with the hiring process, if there is no accommodation requested with respect to the signing of that documentation.”
The tribunal dismissed the application, ruling that the worker had not met the necessary threshold to proceed with his claim.
Summary hearing process
This decision is a good example of the usefulness of summary hearing procedures for employers to dismiss an application that doesn’t have enough of a factual basis to proceed, according to Yucel.
“Employers and HR professionals should really consider summary hearing processes and make those requests when they review applications at an early stage of the process,” she says. “If it can be dealt with at an early stage without having the merits adjudicated and having to go through the whole process, it can save time and money.”
“To be successful, an applicant really does need to point to evidence that there is a connection between the events in question and a protected ground under the code,” adds Yucel. “And if that’s not the case, then employers facing those types of applications should ask themselves how they can respond and act quickly to avail themselves of the summary hearing procedure.”
