Worker slow to provide documents, reference checks
The Ontario Human Rights Tribunal has dismissed a complaint by a worker alleging that the withdrawal of a condition job offer was discrimination on the basis of disability.
The worker applied for a position with the Ontario Lottery and Gaming Corporation (OLG), a provincial Crown corporation that manages and conduct gaming in Ontario such as lotteries, casinos, and internet gaming, in the spring of 2022. The position was for a one-year contract covering for a maternity leave.
On June 15, OLG made a conditional job offer to the worker, with a start date of July 4 that was later changed to July 20 at the worker’s request. A week after the job offer, on June 22, the worker contacted OLG with several questions about the offer, including accommodation of a disability.
OLG had an accommodation process in place involving a third-party disability management firm, so it engaged the third-party firm to begin an accommodation process with the worker. However, the worker didn’t respond to the firm’s queries or provide information about their disability in a timely manner to get things going on the assessment of what accommodations were needed to ensure safety and wellness in the workplace.
Security, reference checks
OLG also engaged another third-party firm to conduct pre-screening security and reference checks. The worker was only able to provide two work-related references because they had limited work experience due to their disability, and only two of the worker’s four references were available. The worker offered to provide volunteer references, but OLG didn’t accept such references.
The worker went on holiday twice during the pre-screening and accommodation process, which further delayed the accommodation information gathering. OLG extended its deadlines multiple times so the worker could provide the information, but the worker still failed to do so. The worker also didn’t complete the required security screening and reference checks to qualify for the position.
OLG started feeling the crunch, as it needed someone in the position when the existing employee went on maternity leave. On Sept. 9, it withdrew the conditional job offer and stopped the accommodation process.
The worker filed a human rights application alleging that OLG discriminated against them when it rescinded the job offer on the basis of a request for disability accommodation and refused to accept volunteer references, claiming that the recruitment process had been “going smoothly until I asked for accommodations.” OLG countered that it did not discriminate, as the reason it rescinded the offer was because the worker didn’t complete the security pre-screening and reference checks on time.
Adverse treatment
The tribunal noted that, while everyone has “at least one code-enumerated ground” and most people will suffer from some form of adverse treatment, not all adverse treatment is discriminatory. To prove discrimination, an applicant has to provide evidence that adverse treatment is related to a protected human rights ground.
The tribunal found insufficient evidence to link the alleged adverse treatment to a code-enumerated ground. There was nothing indicating that OLG’s rejection of volunteer references and withdrawal of the conditional job offer was related to the worker’s disability, while OLG was able to show that it withdrew the offer for non-discriminatory reasons – the worker’s failure to engage with the third-party firms on both the accommodation process and the pre-screening security and reference checks, said the tribunal.
The tribunal also noted OLG’s urgency in filling the role, which was vacant due to a maternity leave, so the delays from the worker’s holidays called into question the worker’s suitability. Despite deadline extensions, the conditions for the job weren’t met and the offer was rescinded for those reasons, the tribunal said.
Proof of discrimination
The tribunal noted that its role was not to determine if adverse treatment was unfair, but only whether it was connected to a protected human rights ground. In this case, there was no evidence that OLG’s actions were discriminatory, it said.
“A bald assertion that the adverse treatment they received was owing to their disability is not enough to provide the required factual basis,” said the tribunal. “An applicant's belief, even if honestly held, is not evidence upon which the tribunal might find that discrimination has occurred.”
