School board should have explored other options for writing skills test, says tribunal
An Ontario school board discriminated against a job applicant with a learning disability when it didn’t give him the opportunity to take a written test under special conditions, the Ontario Human Rights Tribunal has ruled.
In November 2005, the Toronto District School Board (TDSB) had openings for part-time caretakers. As part of the application process, the TDSB required all applicants to write a reading and math skills test, of which a passing mark would be 70 per cent. There were about 1,800 applicants for the 60 positions available, so the TDSB divided the applicants into four groups. Each group of 400 to 500 people would write the test in a cafeteria at one of four high schools on Nov. 25, 2005.
One applicant had a non-verbal learning disability, which meant his working memory, perceptual organization and processing speed were slower than average. His actual verbal skills were average, but his disability meant it took him longer to figure things out. Because of this, he often grew frustrated when placed under time limits.
After he applied, the TDSB sent the applicant a letter inviting him to write the test on the specified date. The applicant was concerned about the test because of his learning disability and asked an employment services agency with whom he had been working for advice. Following the agency’s advice, the applicant informed the TDSB of his disability and asked for accommodation about a week before the test date.
The applicant told the TDSB the details of his disability and said he needed to write the test in a separate room with a calculator and have someone break down the questions for him so he could understand them. The TDSB responded that it didn’t accommodate at such an early stage of the process and it didn’t have the staff to give such support to one person when so many were applying. It suggested he write the test and if he didn’t pass, they could discuss the need for accommodation.
On Nov. 21, 2005, the employment agency contacted the TDSB to discuss the situation. The applicant gave his permission to discuss the details and also offered to provide medical documentation to support his disability and need for accommodation. The TDSB agreed to review the documentation, but the applicant then decided to withdraw his application because he felt he was being set up to fail. At that point, the TDSB told the agency there was nothing further to discuss.
The tribunal found the TDSB should have investigated the options for accommodating the applicant rather than simply dismissing it. It could have accommodated his needs at a separate site or time if it wasn’t practical to do so on the test date, said the tribunal, and it had sufficient information about his disability to consider it. The request for him to write the test and see how he did was “inappropriate,” said the tribunal. As a result, there was prima facie discrimination and a failure by the TDSB to accommodate.
However, the tribunal found when the TDSB agreed to review the applicant’s medical documentation, the accommodation process was revived. By pulling out of the process and not providing that information, the applicant didn’t follow through on his part of the accommodation. Because of this, the tribunal found no basis for compensation for the loss of the applicant’s opportunity to compete for the job.
