by Stuart Rudner
Thursday, August 30, 2018
Human rights legislation across the country prohibits discrimination on the basis of various protected grounds. Accessibility legislation such as the Accessibility for Ontarians with Disabilities Act (AODA) in Ontario seeks to remove barriers to employment for people who have disabilities.
The message seems clear: in 2018, people should not be prevented from working due to barriers that have no relation to their ability to do their job. And yet our courts and tribunals continue to award nominal compensation when organizations discriminate against candidates or employees in contravention of human rights legislation.
As part of the training required in Ontario to comply with the AODA, we are to review videos such as this. The video is a well-written, simple yet powerful reminder of the challenges that people with disabilities face in the workplace. One of the examples is an individual who was interested in applying for a position as a disability counsellor. Unfortunately, he was not able to review the details of the position, as the website was not accessible, and his screen reader could not read it. When he called to inquire, he was told that they were busy and that someone would call back. No one ever did.
So, here’s my concern: if he had filed a claim with the Human Rights Tribunal of Ontario, he would likely have been told that his claim is worth something in the range of $5,000-$10,000. And, of course, to obtain that, he would have to go through a lengthy proceeding and, while having a lawyer is not necessary, it is certainly advisable, and would probably cost as much if not more than what he would receive. Is that really consistent with the message that we are trying to send?
In recent years, our firm has represented many individuals who have been discriminated against on the basis of grounds protected by human rights legislation. They include individuals with physical and psychological disabilities, pregnant employees, mothers with young children, and in one case, an individual who was discriminated against because she had an abortion. We have attended many mediations at the tribunal, which are typically presided over by vice-chairs, who could otherwise be the “judge.” And we have repeatedly been told that this type of case, where there is no harassment or assault, is worth closer to $0 than $30,000, so settlement should be in the $5,000-$10,000 range.
At the risk of sounding like a broken record, it is time for courts and tribunals to put their money where their mouth is by awarding substantial damages when there is a breach of human rights. The costs associated with such discrimination cannot be seen as a cost of doing business. I said the same thing last fall in the context of workplace sexual harassment.
So how does this change? We have seen positive change in recent years. As I have said before in a previous The Lawyer’s Daily article: “Harassment is not tolerated as it once was. However, before we can take even more significant strides toward eliminating harassment and sexual harassment in the workplace, we have to remove any notion that allowing such conduct, the damage it does to the victims and others, and the risk of liability, is all simply a cost of doing business. Harassment should never go unpunished, no matter who the harasser is.”
Currently, there is little to dissuade an employer from discriminating against a pregnant employee, or an applicant with a disability. After all, the odds are that the individual will simply walk away. If they file a claim, you can simply throw a few thousand dollars at them to make it go away.
At the same time, human rights tribunals need to have the authority to award costs as our courts do. Under the current model, there is nothing to discourage frivolous complaints. We have represented many employers that have been the victim of such, having done nothing wrong but facing the reality that they may have to spend tens of thousands of dollars in legal fees in order to obtain a relatively hollow victory. That is not right.
And, of course, in some cases employers take advantage of the reality that they have deeper pockets than the complainant and know that the complainant will not be able to fund a claim all the way to hearing and will ultimately have to accept less than they are entitled to. Cost awards should be used in those circumstances as well.
Discrimination on the basis of personal characteristic that are entirely unrelated to employment is reprehensible. Barriers should be eliminated, not created. That is true whether we are discussing an individual who cannot get to the second-floor office because they are in a wheelchair, a female employee dismissed because she is pregnant or an applicant unable to proceed through the hiring process because it is not accessible.
Employers will take their duty to provide accessible workplaces, accommodate their employees and not discriminate when the penalties for breaching those duties are more than token amounts.
Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He can be reached at 416-864-8500 or firstname.lastname@example.org.