Jun 3, 2013
By Stuart Rudner
Workers with disabilities have a lot to offer, but there are some landmines to avoid in hiring process
On June 20, I am speaking on Employment Law in Today’s Workplace for the One Voice Network, an organization whose vision is the inclusion of all individuals in the workforce, creating a society that embraces people of all abilities.
They work to pair individuals with disabilities with employers that can benefit from their skills.
In preparation for the conference, I spoke with Sharon Stephenson-Avery about a variety of issues relating to the employment of those with disabilities. She commented that hiring someone with a disability should not be approached as an act of charity, but as a smart business decision.
Rather than “doing someone a favour,” employers should hire the best person for the job, regardless of their abilities or disabilities. Unfortunately, many employers assume a disabled worker will come with oppressive limitations, duties to accommodate and other costs that “normal” employees do not.
The reality, of course, is an individual with a disability may well be perfectly suited for a particular position, and in many cases will appreciate the opportunity far more than others — leading to a loyalty and willingness to work that exceeds the norm.
Much of my time is spent assisting employers in avoiding discrimination claims. In the hiring process, I often advise employers that “they don’t want to know anything more than they have to.”
This includes not asking or finding out about an applicant’s age, religion, background or disability. Otherwise, there is always the possibility a rejected applicant will allege she was discriminated against based upon a protected ground. As I advise employers, it is certainly helpful to be able to honestly say they were not even aware of the protected ground. For the full discussion, see “Guidelines for using social media when hiring.”
With the advent of the Accessibility for Ontarians with Disabilities Act (AODA), this becomes more difficult for employers with workers in Ontario.
Employers now have a duty to inquire about any need for accommodation in the hiring process. Once they do, and an applicant reveals a need for accommodation, the employer cannot deny knowing about it.
However, one of the pieces of advice I always offer remains valid: Do not share this information with the people making the hiring decision. Someone else can look after the accommodation inquires and arrangements, and efforts can be made to ensure that the ultimate decision-makers are not privy to it.
Of course, this is not always feasible. It will be difficult to prevent someone from seeing that an applicant is, for example, in a wheelchair. That is why I also always recommend that detailed reasons be kept supporting hiring decisions so the organization can demonstrate why an applicant was rejected for legitimate reasons.
Unfortunately, some individuals will abuse legislation that exists to protect traditionally disadvantaged groups and allege discrimination when they were, simply put, not the best person for the job. Employers need to be able to defend against such accusations.
At the same time, employers should also assess their own practices and views in order to ensure they are not rejecting qualified candidates or, even worse, preventing them from applying in the first place.
Not only is this good business practice, it will also be required as AODA comes into force in Ontario.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at email@example.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.