AODA Alliance
Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Ontario for All People with Disabilities
Website: https://www.aodaalliance.org/
Email: aodafeedback@gmail.com
Twitter: @aodaalliance
YouTube: https://www.youtube.com/user/aodaalliance
CBC Report on Employment Disability Discrimination Case Shows Need to Strengthen Ontario’s Weak Employment Accessibility Standard
February 28, 2024
SUMMARY
Why do people with disabilities continue too often to face disability discrimination in employment. The late David Onley, former Ontario Lieutenant Governor, often said that the unemployment rate facing people with disabilities in Canada is not only a national crisis – it is a national shame.
On February 5, 2024, CBC News published a report about an employee with a disability who has taken the Ontario Ombudsman’s Office to the Human Rights Tribunal of Ontario, alleging disability discrimination in employment. We set out that article below. The AODA Alliance cannot comment on the case’s specifics. However, CBC asked AODA Alliance Chair, David Lepofsky, for background on the challenges facing people with disabilities when they try to get a job.
In Ontario, it has been illegal to discriminate against people with disabilities in employment since 1982 – 42 years ago. If a person has been the victim of disability discrimination in employment, it has been harder for them to present their case under the Ontario Human Rights Code since 2008 because they can no longer take their case to the Ontario Human Rights Commission to investigate it. Instead, they must investigate it themselves and then present their case at a formal court-like hearing at the Human Rights Tribunal of Ontario.
That 2008 change was promised to speed up the human rights enforcement process. It did not live up to that promise. It now takes upwards of four years, if not longer, to get a hearing at the Human Rights Tribunal of Ontario. Back in 2006, the AODA Alliance and several other community groups vigorously opposed that harmful change to the enforcement of human rights in Ontario. You can learn more about that by visiting the AODA Alliance website’s human rights reform page.
The Accessibility for Ontarians with Disabilities Act was passed in 2005 to require the Ontario Government to lead this province to become accessible to people with disabilities by 2025, including in employment. The Government’s poor implementation of the AODA has failed people with disabilities in many areas, including in employment.
In 2005, the Ontario Government passed the Employment Accessibility Standard under the AODA in order to ensure accessibility in employment for jobseekers and employees with disabilities. While helpful to a limited extent, that accessibility standard was far too weak. The AODA required the Ontario Government to appoint an Employment Standards Development Committee by 2016 to review the 2011 Employment Accessibility Standard and recommend any revisions needed to strengthen it. In or around 2016, the Ontario Government appointed the Employment Standards Development Committee. On May 7, 2018, the AODA Alliance submitted a brief to the Employment Standards Development Committee. It recommended ways in which the Employment Standards Development Committee needs to be strengthened.
Sadly, events since then have included several major let-downs. First, the Employment Standards Development Committee did not act on much, if any, of our recommendations in its final report to the Government. That Committee delivered its final report to Ontario’s Accessibility Minister Raymond Cho on January 22, 2019.
Second, Sections 10 and 11 of the AODA required the Ford Government to make public the ‘Employment Standards Development Committees final report upon receiving it. The Ford Government flagrantly disregarded that requirement. It kept the Employment Standards Development Committee’s final report secret until around February 2021, over two years after receiving it.
Third, at least as inexcusable, the Ford Government has not enacted any revisions to the Employment Accessibility Standard in the half decade since it received the Employment Standards Development Committees final report.
What Can You Do to Help?
Write Premier Doug Ford. Tell him it’s time for the Government to strengthen the weak Employment Accessibility Standard that was enacted in 2011 under the Accessibility for Ontarians with Disabilities Act.
Email Premier Ford at premier@Ontario.ca
Where to Get More Background
- The AODA Alliance’s May 7, 2019 Brief to the Ontario Employment Standards Development Committee on Its Draft Recommendations for Revisions to the 2011 Employment Accessibility Standard
- AODA Alliance Chair David Lepofsky’s captioned video explaining the duty to accommodate people with disabilities under the Ontario Human Rights Code.
- The AODA Alliance website’s employment page.
MORE DETAILS
CBC News February 5, 2024
Originally posted at https://www.cbc.ca/news/canada/toronto/disabled-man-says-ontario-ombudsman-discriminated-against-him-during-job-hunt-1.7102408
Title: Disabled man says Ontario Ombudsman discriminated against him during job hunt | CBC News
In response to human rights tribunal, ombudsman’s office says ‘it met its procedural duty to accommodate’
Photo of: Michael Smee CBC
Caption: Liam Walshe says that in 2022 he was denied the chance to apply for a job as an early resolutions officer at the office of the Ontario Ombudsman.
The agency that fights for fairness in Ontario government and public sector offices is itself being accused of unfair hiring practices by a Toronto man with autism and ADHD.
Walshe says the ombudsman’s office cut off communication with him soon after he asked for an extra 30 minutes to write an online, supervised screening test that ordinarily takes one hour, according to a complaint before the Human Rights Tribunal of Ontario (HRTO).
“My experience applying for this job with the ombudsman made me feel absolutely worthless, unwanted,” Walshe said.
“There were nights that I cried.”
Walshe is asking that the ombudsman pay him $83,000 in compensation and give him a job as an resolutions officer, according to documents filed with the HRTO in 2023.
The ombudsman’s office wouldn’t speak with CBC Toronto about the dispute, because it’s before the tribunal. But in its response to Walshe’s HRTO filing, it argues the conflict is a misunderstanding that began when a supervisor leading the search for a new early resolutions officer went on holiday over the summer, and a less experienced worker took over.
Documents show Walshe asked in his cover letter for extra time to write the screening test because of his disability.
The supervisor leading the hunt for an adjudicator, identified by the initials PD, asked Walshe to provide medical records proving he had a disability, which Walshe’s paralegal Sean O’Connor told CBC Toronto he did.
Photo of: Sean O’Connor, a paralegal, outside Old City Hall courthouse. He has volunteered to help Donna Rodrigues, provided transcripts of her case still exist.
Caption: ‘The one place whose whole mandate is about justice and fairness failed to do that,’ says paralegal Sean O’Connor about Walshe’s case. (Mike Smee/CBC)
According to the ombudsman’s office’s response, PD left for holidays and Walshe’s file was passed to a less experienced employee, identified by the initials CM.
CM never got Washe’s medical records, according to the office’s response, so he emailed Walshe again asking for proof that he needed an accommodation in order to write the test.
It was this email that angered Walshe, who is now a paralegal working for another provincial government agency.
“I was absolutely horrified that they’d put somebody with a disability through this over such a miniscule thing,” he said.
“What are they thinking? Are they pre-judging me? Are they wondering if I’m capable of doing the work? These are the things that are going through my mind.”
In the HRTO documents, the ombudsman’s office maintains that it did contact Walshe to follow up about the test, but it never received a reply so it took that to mean he was no longer interested in the job.
“The Ombudsman asserts that it met its procedural duty to accommodate and, due to the Applicant’s lack of cooperation and response, the substantive duty to accommodate was never triggered,” the office said in response to the HRTO complaint.
Walshe says he got no such email. He says he eventually called the ombudsman’s office, only to be told the job had been filled.
“They stopped corresponding with him, weeks go by and the next thing he knows, the job is filled,” O’Connor said. “The one place whose whole mandate is about justice and fairness failed to do that.”
The ombudsman’s HRTO response acknowledges there was some bureaucratic confusion in the way it dealt with Walshes case.
But O’Connor says that’s not relevant.
“Saying it’s an accident is no defence for discrimination,” he said.
David Lepofsky says he sees many cases where people, like Walshe, who have an “invisible disability” can face an even tougher struggle job hunting than people with more obvious disabilities.
“If I walk into a workplace with a white cane, I don’t have to prove anything,” said Lepofsky, who is chair of the Access for Ontarians with Disabilities Act Alliance.
“But if you have (an invisible disability) you have the added burden that the employer might not believe it or may want proof of it.”
In any event, Lepofsky says companies are legally bound to offer people with disabilities accommodation unless they can prove it would pose “undue hardship” — a major building retrofit, for instance.
It’s not clear yet when the tribunal will hear Walshe’s case.