Employers ‘don't generally get a free pass’ for not understanding their accommodation obligations during recruitment, lawyer explains
A recent Human Rights Tribunal of Ontario (HRTO) decision, involving a blind job applicant who was denied a sales associate position, demonstrates the high bar for “undue hardship” that employers face when accommodating candidates.
According to Shana French, employment lawyer with Littler, accommodating job candidates isn’t new, but employers who aren’t aware of the extent of the law’s application risk making themselves vulnerable to human rights claims such as this one.
“Seeking the collaboration and the input of the individual was a really key miss here,” French says.
“And it's certainly a miss that employers could face if they don't engage the applicant.”
The decision, Burggraaf v. Convergys CMG Canada ULC saw the employer conclude that its proprietary software could not be adapted for the applicant’s needs. The Tribunal found that although the employer had explored options, it stopped too short, stating that, “A failure by a respondent to take the appropriate steps in the procedural duty to accommodate is a violation of a right under Part 1 of the [Human Rights] Code.”
Duty to accommodate: common employer pitfalls
The Tribunal’s decision highlighted that the employer’s failure to consult with the employee after initial discussions was a key shortcoming.
French emphasizes this, explaining that the duty to accommodate includes a genuine effort by the employer to collaborate with the candidate, considering their experience and input. Failure to do this opens even well-meaning employers up to risk: “Even in good faith and with the best of intentions, just sourcing your own information when there is a really robust opportunity to look for other information.”
The Tribunal found that Convergys did not reach out to external experts or its own client to explore further accommodation options, relying instead on its own conclusion that accommodation was unreachable.
Sartaj Sarkaria, CEO of the Canadian Centre for Diversity and Inclusion (CCDI), adds that the hiring stage is a blind spot for many Canadian employers.
“One of the most common misconceptions Canadian employers have about their duty to accommodate is that it only begins after someone is hired, which is what we see in Burggraaf v. Convergys,” she says.
“The duty to accommodate applies throughout the entire employment lifecycle, including recruitment and selection. This means employers must ensure that every stage of the hiring process, from job postings to interviews and testing, is accessible and free from barriers.”
The duty to inquire and the application process
The Burggraaf decision made clear that the duty to accommodate can be triggered even before a formal request is made, and that employers must be proactive in identifying and addressing potential barriers.
French explains that in Ontario, employers are required to inform candidates at the job posting stage that accommodations can be made for disabilities. However she advises all employers make this standard practice, regardless of their jurisdiction.
“What we can do as employers to try and remove a barrier to facilitate an individual participating in the workplace has that high threshold of undue hardship,” she notes.
“That same analysis applies in the application stage, as it does in the actual employment stage.”
The duty to inquire falls within this timeframe also, French adds – even in the pre-hire stage, employers are required to inquire as to accommodations if candidates exhibit signs of requiring them, anytime throughout the application process.
This means even subtle clues or indirect disclosures during the hiring process can trigger an employer’s duty to inquire, rather than waiting for a formal reques
“An employer cannot say, or a potential employer cannot say, ‘Well, no formal request for accommodation was made’,” French says.
“It's the same analysis it is for an employee – was it obvious in the circumstances? Would a reasonable person in the position of that employer have identified that some inquiry was appropriate?”
Accommodating less visible disabilities
While the Burggraaf case involved a clear and undisputed disability, the Tribunal’s reasoning is equally relevant to situations where disabilities are less visible or more complex; as French explains, the duty to inquire is especially important when disabilities are not obvious.
“If you're looking for some of the indicators that have historically been trust-builders – ‘Did they maintain eye contact in the interview? Did they appear to be forthright and engaged with my questions?’ The answer might be ‘no’, but the answer might be ‘no’ because they're someone who has autism spectrum disorder,” French says, adding that employers are expected to be educated about invisible disorders and how to avoid human rights breaches: “Employers don't generally get a free pass because they didn't understand the nexus between the behavior or conduct or limitation and a legitimate medical ground.”
She goes on to compare invisible disability accommodation requirements to when ‘creed’ was first added to the list of protected groups in the Code; in early cases based on creed, she says, employers were not allowed to use ignorance as a defence against discrimination claims.
“I think we understand now at this point that the expected standard is to be more educated and to be more aware of what would constitute discriminatory behaviour.”
Cultural versus financial barriers to workplace accommodation
The Tribunal’s decision pointed out that Convergys failed to fully leverage the applicant’s own expertise in accessibility technology, despite his background in training and testing software for the blind.
French adds, “getting the information is such an important component of meeting that procedural obligation, and really pushing yourself to be creative, not coming at it from, ‘well, no, this probably won't work.’ But, ‘OK, what can work?’”
Sarkaria points out that many employers have the perception that accommodating employees’ disabilities are costly and complicated, when in fact this is rarely the fact.
“Most accommodations are simple, low-cost adjustments, such as providing extra time for an assessment, offering virtual interview options, or ensuring accessible formats for application materials,” says Sarkaria.
“The real challenge is often not financial but cultural, shifting from a ‘one-size-fits-all’ mindset to one that values flexibility and inclusion.”
Employers can address these potentially-legally-risky misconceptions by being proactive about educating hiring managers on duty to accommodate and inquire responsibilities, as well as making recruitment practices inclusive through design, “and fostering open, respectful dialogue with candidates about their needs.”
