My students, including some practicing HR professionals, are often surprised to learn that the Human Rights Code prohibits discrimination on the basis of “perceived disability” in addition to actual disability. In other words, if a worker is denied employed or otherwise disadvantaged at work because the employer perceives them to be disabled, even though they are not, the Human Rights Code may still have been violated.
In Ontario, Section 10(3) of the Human Rights Code expressly prohibits perceived disability when it says that it is unlawful to deny employment because the person is “believed to have or to have had a disability”. The Supreme Court of Canada has also ruled that the “disability” must be read in include the perception of disability. See Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City). In that case, a job applicant was denied employment because the employer perceived her to have a back disability.
Perceived Drug Addicition
We look at a case in my Employment Law course called Weyenhaeuser Co. v. OHRC in which a job applicant failed a drug test, which indicated he had consumed marijuana. When asked if he smoked marijuana, the employee first denied he did, but then said he was a “casual user”. He was denied the job, and he filed a Human Rights Code complaint alleging he’d been denied employment because the employer “perceived” him to be addicted to marijuana (and therefore disabled). He lost, because the Tribunal found he had told the employer he was only a casual user, and there was no evidence to suggest the employer thought otherwise. If he has told the employer he smoked marijuana daily, would the outcome have been different?
Perceived Weight Disability
Thanks to Dan Lublin for making me aware of a B.C. Human Rights Tribunal decision from last year in which discrimination on the basis of perceived disability was found. The case is called Johnson v. D. and B. Traffic Control. The worker in this case was overweight, but his weight was not a disability. The Tribunal wrote:
simply being overweight is not sufficient to constitute a disability for the purposes of
the Code. There must be some limitation on the ability to perform the activities of daily living or work in order to constitute a disability. While I accept that obesity may, dependent on the circumstances, constitute a disability, based on the evidence presented in this case, I am not persuaded that Mr. Johnson has an actual disability
However, when he was denied a job assignment, the employer told him it was due to “his disability”. The employer later recanted that explanation and explained that it was really due to the customer asking that the Johnson not be assigned to their jobs. The Tribunal found that “regardless of the reason, specifically advising Mr. Johnson that he was not offered work because of “his disability” was a contravention of the Code”. Johnson was awarded $2000 for hurt feelings, dignity and self-respect.
Here’s two questions to consider.
1. Is it a violation of human rights codes for an employer to refuse to employ someone based on a perception (perhaps incorrect) of the applicant’s religion, marital status, or ethnic origin? Or is it only discrimination based on perceived “disability” that is prohibited?
2. In the Johnson case, a customer of the employer asks that Johnson not be assigned to their job. What if that customer didn’t want Johnson because of “his perceived disability”, or because of his religion. Is Johnson’s employer violating the Human Rights Code by accepting a clients’ discriminatory preferences? If so, how should employers respond to discriminatory requests from customers?