Employees may experience human rights discrimination in some work environments, which can be incredibly difficult. In Ontario, there is a wide range of grounds for discrimination which can arise in the workplace. For instance, there may be discrimination based on age, disability, gender identity, race, and more. Some people may be discriminated against because of their mental illness as a disability. Typically, in the workplace, this would be related to an employer’s duty to accommodate an employee with a disability. An employer’s steps to accommodate the employee are relevant information. Additionally, the Human Rights Tribunal may assess the employee’s efforts in providing adequate information about their disability so that the employer can adequately accommodate them.
In this post, we will discuss the connections between an employee’s mental illness, human rights discrimination, and the duty to accommodate. We will examine a case example, Yan v. 30 Forensic Engineering Inc., 2023 ONSC 6475, which was an appeal of the Human Rights Tribunal’s decision that there was no discrimination based on post-traumatic stress disorder (PTSD) experienced by the employee. The court upheld the Tribunal’s finding that the employer was not provided an opportunity to accommodate the employee, as she had not provided specifics of her mental illness so that the employer could adequately address the issues. This post will provide key takeaways for parties involved in human rights claims involving mental illness.
Are Mental Illnesses Covered Under Human Rights in the Workplace?
The Human Rights Code covers human rights legislation in Ontario. The Code prohibits discrimination based on several protected grounds in specific contexts, which include discrimination experienced in the workplace.
While mental illness is not explicitly set out as a protected ground in the Code, it is included under the category of disability, which is a protected ground. In particular, an employer is prohibited from terminating or denying a promotion for an employee due to a mental health disability. Employees are also protected from harassment in the workplace based on mental health disability.
What is the Duty to Accommodate?
The Ontario Human Rights Commission has also set out policies for enforcement of the Code. In their Policy on preventing discrimination based on mental health disabilities and addictions, in section 13, employers have a duty to accommodate the needs of individuals with psychosocial disabilities to ensure they have equal opportunities, access, and benefits. The duty to accommodate includes efforts by an employer to ensure that the employee is integrated and able to participate fully in their workplace. This mirrors the case law requirements for employers to accommodate a disability.
Typically, an employee would ask their employer for assistance with their mental health issues if it is affecting their employment. However, in some cases, an employee’s disability may make it difficult to seek help from their employer. Therefore, an employer would have the duty to take steps in seeking out more information from an employee who may require assistance with a mental illness that is impacting their employment. The employer must try to understand the employee’s needs to tailor the solution to the employee’s circumstances. The employer would need to seek relevant information, such as how the mental illness affects the employee’s job duties. The employee may also request accommodations, and the employer can consider whether those are appropriate. The employer will need to consider if any long-term accommodations are required.
Some examples of accommodation for an employee with a disability include:
- Providing flexible work hours or periods of leave;
- Allowing the employee to work from home or providing quiet spaces for the employee in the workplace;
- Organizing regular check-ins with the employee to adapt the plan to their needs;
- Reducing triggers that may exist in the workplace.
To fulfill their duty to accommodate an employee’s disability, employers must make all reasonable efforts to accommodate until the employer reaches a point of undue hardship. This means that the employer is not required to negatively impact their business by accommodating the employee, which requires specific and quantifiable evidence. There is a very high bar to show undue hardship, and employers are expected to work with the employee to provide a solution to accommodate their disability, including a mental illness.
The duty to accommodate can also be seen as a cooperative duty. In particular, the employee needs to collaborate with their employer and provide sufficient information on how their mental illness affects their job duties so that appropriate accommodations can be implemented. The employee also has to take the opportunities from the employer to discuss further what accommodations can be made.
Evidence of Mental Illness Required for Employer to Accommodate
In the Yan case, the plaintiff claimed that she experienced discrimination from her employer based on her PTSD. She claimed that the employer failed their duty to inquire further, which was part of their duty to accommodate her mental illness as a disability.
The Human Rights Tribunal found that there was no discrimination based on her post-traumatic stress disorder. In particular, she had not provided much evidence concerning her mental illness and how it affected her job duties. There was also evidence that the employer was aware that she was experiencing some mental health challenges and referred her to speak with human resources to inquire further on what accommodations could be made. The Tribunal found that the employee did not take steps to reach out to human resources, even though she had done so on different grounds in the past. As a result, there were no further conversations about accommodation for her mental illness. The duty to accommodate was a cooperative duty, which also required the employee to provide information that could allow the employer to understand how they could accommodate her mental illness.
The employee appealed. The Supreme Court found that the Tribunal made no reviewable error on this point, as they found that the employer did make efforts to inquire further, and the employee did not take steps to provide further information.
Employers have a duty to accommodate disabilities in the workplace, including mental illnesses. They must inquire further about how the mental illness affects the employee’s job duties. To provide sufficient accommodation, the employee is also expected to provide enough information so the employer can take steps to accommodate.
Contact Haynes Law Firm in Toronto for Advice on Accommodating Disabilities in the Workplace
Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with issues concerning accommodating disabilities in the workplace. For employees, our goal is to ensure that they understand their rights and receive maximum compensation in wrongful dismissal cases and human rights claims.
Haynes Law Firm also assists employers in avoiding liabilities that may arise from failure to adequately accommodate employees with disabilities, which can lead to constructive or wrongful dismissal findings. Our team works with employers to prevent human rights violations in the workplace. We are dedicated to finding the best resolution for you.
To book a consultation, please get in touch with us online or by phone at 416-593-2731.