Human Rights Provisions

Job requirements and job interviews

The Ontario Human Rights Code states that the ability to perform the essential duties or requirements of the job (irrespective of whether or not a person has learning disabilities) is the significant factor an employer must consider when assessing someone's suitability for a particular job. The essential duties or requirements refer to the central, or core, aspects of the job. An employee may ask questions about a disability during the job interview only if the potential employee has disclosed the fact that he or she has a disability and then only in relation to whether or not the person can perform the essential job requirements.

The Ontario Human Rights Commission advises employers to identify the essential and actual duties and responsibilities of a particular job. These job requirements should be examined with attention to whether or not they legitimately exclude particular disability groups. If the requirement is not a valid one for the particular job, it can be viewed as being in contravention of the law.

Accommodating the needs of the employee who has learning disabilities

The Ontario Human Rights Code, 1981, prohibits discrimination on the grounds of disability. This means that employment, services, goods and facilities cannot be denied to someone because they have a disability. The definition of disability in the Code includes "a learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language".

In 1989, the Human Rights Code was expanded by introducing a set of Guidelines for Assessing Accommodation Requirements for Persons with Disabilities. The thrust of these Guidelines is the duty to accommodate special needs such that, persons with disabilities are enabled to carry out the essential duties of a job and they have choices about pursuing their individual goals and purposes in life, including the situations in which they work, live, travel eat, shop, play and are entertained.

The standards established for accommodation are as follows:

1. The needs of persons with disabilities must be accommodated in a manner which most respects their dignity, if to do so does not create undue hardship.
2. The phrase "respects their dignity" means to act in a manner which recognizes the privacy, confidentiality, comfort, autonomy and self esteem of persons with disabilities, which maximizes their integration and which allows their full participation in society.

Inevitably the question arises as to what is undue hardship in this context.

The Guide defines undue hardship in terms of cost and/or health or safety risk for the individual organization or institution which is being asked to provide the accommodation. Further, it stresses that the onus for proving undue hardship is on the institution, organization or individual who is being asked to provide the accommodation and not on the individual who is seeking accommodation.

There are no predetermined cost levels attached to this definition. Clearly, this will vary from situation to situation and what may be undue hardship for a small company or business is not so for a bank or major department store.

For people with learning disabilities much of the accommodation focuses on modified working environments, training programs, extra time to learn or carry out certain tasks, most of which does not represent any significant expenditure of money. Even the assistive devices which prove beneficial to employees with learning disabilities, such as computers, tape recorders, calculators, etc. tend to be mainstream equipment and therefore readily available in most places.

Accommodating the needs of workers with learning disabilities often involves strategies which require minimal or no financial outlay except in terms of additional supervisory time until a particular skill is mastered or weakness is overcome. Patience during the training period will be rewarded by a more confident and productive worker.

Many persons with learning disabilities can help by identifying modifications that have been helpful to them in the past. If every person with a learning disability could assess exactly what is needed to enable them to do good work, and discuss that need with a supervisor, that would simplify matters considerably