Discriminations due to Disability

Legal requirement and Diversification, Equity and

Inclusion

Instructor: Harman By:

Human Resource Management Ololade Adejuwon
February 08, 2024 Latasha Morgan-Smith
 Agenda

• Introduction
• Background
o discrimination
o Legislations
o Concept of accommodation and undue hardship

• Disability Lawsuit
o Case and Outcome
o Analysis of the case and suggestions

• Conclusion
• References
Introduction - Diversity, Equity and Inclusion

• Diversity, equity and inclusion (DEI) has received

renewed attention in recent years
o George Floyed and other black killings
o Residential school grave saga (Migdal, 2021)

• Trudeau produced the first ethnically diverse and gender

balanced cabinet (The Guardian, 2015).
• Government made legislations
• Organizations made policies
• DEI can add more flavor to organizations and the world
o Variety is the spice of life
Background – Diversity, Equity and
Inclusion cum Legal Requirement

• Diversity – recognizing people's differences

• Equity – giving people equal opportunities
• Inclusion – enabling everyone to make contributions
• Decades of human rights legislations
• Universal declaration of human rights (United Nations, 1948)
• 562 languages in 1999
• International Covenant on Economic, social and cultural rights United
Nations (1976)
• Canadian constitution
• Federal and provincial laws
Discrimination
• Unfair treatment based on unfounded prejudice
o race or colour,
o national or ethnic origin,
o religion,
o age,
o sex,
o gender identity,
o marital status,
o family status
o disability
Legislations that protects people living with
disability
• Almost 800,000 Canadians are not working due to their
disability (Grant, 2014).
• Canadian Charter of Rights and Freedom
• Canadian Human Rights Act (Government of Canada, 2014)
• National Disability Inclusion Action Plan (Government of Canada, 2022)
o No person should be denied employment or terminated from a job because of a
disability.
o Reasonable Accommodation
o Does not impose undue hardship

• Provincial laws in some jurisdictions

o Accessibility for Ontarians with Disabilities Act
o Accessibility for Manitobans Act
Concept of Accommodation

• Changes to organizational policies

• Changes to a physical workplace
• Job re-design (bundling)
• Adaptations to equipment, tools, or uniform used
• Flexible work hours or job sharing
• Relocation of the workspace within the workplace
• The ability to work from home

(Schwind et al. 2022)

Concept of undue hardship

• Cost
• Outside sources of funding
• Health and safety
• Disruption of collective agreement
• Interference with other workers

(Schwind et al. 2022)

 CASE:
OFFERING SUITABLE REPLACEMENT JOB IS
ENOUGH TO ACCOMMODATE INJURED WORKER
10. Offering Suitable Replacement Job Is Enough to Accommodate Injured Worker
A health agency notified a residential care worker that his work injury made it
impossible to reinstate him to his old job. After the worker filed a discrimination
complaint, the agency offered him an administrative position. But the worker
considered the job unsuited for his skills and rejected the offer. When the worker
didn’t show up for a settlement meeting, the agency sent him a letter asking him
to clarify if he was taking the job. When the worker didn’t respond, the agency
terminated his employment. He claimed failure to accommodate but the Alberta
human rights commission dismissed the case, finding that the agency had offered
him suitable employment and accommodated the worker to the point of undue
hardship, and that the worker refused to cooperate with the accommodations
process. The case went all the way up to the Alberta Court of Appeal which found
the commission’s ruling reasonable and refused to enforce it [Wojtasiewicz v
Alberta (Human Rights Commission), 2020 ABCA 23 (CanLII), Jan. 23, 2020].
 Case filed – April 3, 2018
Appeal heard – January 9, 2020

• Plaintiff and Appellant

Krzysztof Wojtasiewicz

• Respondents/Defendants
Alberta Human Rights Commission and Alberta Human Services Government of Alberta

• Court
Alberta Court of Appeal –
 The Honourable Mr. Justice Peter Costigan
 The Honourable Madam Justice Frederica Schutz
 The Honourable Madam Justice Jo'Anne Strekaf
 Case and Outcome
• Discrimination complaint made
• Administrative position given and rejected by employee
• No show for settlement meeting by employee
• No response from employee when asked if he was taking the job offered
• Employee was terminated
• Employee claimed failure to accommodate
• Case dismissed because reasonable employment was offered, and employee refused to cooperate
• Case went to Alberta Court of Appeal and ruling, however, ruling was found reasonable
 Analysis of the case – Ambiguity in the Law

• Terminating an employee with a disability is not always a violation of human

rights law
o The ones that constitute violation are not specified

• Maneuvers abound when facts don’t speak for themselves

o Suitable is subject to definition

• Employee claim to be capable

• Performance evaluation was not used
• Employee incurred permanent disability from work
o Not stated that employee was compensated
 Conclusion

• Diversity, Equity and Inclusion are policies and programs that promote the representation and participation of
different groups of individuals.
• Among the protected group, people living with disability suffer discrimination the most.
• Wojtasiewicz's organization did not accommodate what he described as being suitable for him.
• The concept of suitable accommodation and undue hardship needs more legislative clarification.
• Diversity, Equity and Inclusion has come a long way, however; there is still much to be improved.
• Employes need to be clear in their policies on the degree of will accommodate up to undue hardship.
• Performance evaluations should be done before arrangements are made to determine accommodation.
• Employees need to take accountability for their decisions, delay or hesitance can lead to unfavorable resolutions
made by an employer
 References
• Grant, T. (2014, February 28). The dis(ability) edge, The Globe and Mail, p. B6, B7.

• Government of Canada (2014). Rights of People with Disabilities. https://www.canada.ca/en/canadian-heritage/services/rights-people-

disabilities.html accessed February 3, 2024.

• Government of Canada (2022). Government of Canada releases national Disability Inclusion Action Plan. https://www.canada.ca/en/employment-
social-development/news/2022/10/government-of-canada-releases-national-disability-inclusion-action-plan.html. accessed February 3, 2024.

• Migdal, A. (2021, June 30), 182 unmarked graves discovered near residential school in B.C.’s interior, First Nation says, CBC News, retrieved
February 3, 2024, from https://www.cbc.ca/news/canada/british-columbia/bc-remains-residential-school-interior-1.6085990.

• Schwind, H.F. (2022). Canadian Human Resource Management, (13th ed. p. 100-101). McGraw Hill, ON. ISBN 9781260881431

• The Guardian (2015, November 4), Trudeau gives Canada first cabinet with equal numbers of men and women, retrieved February 2, 2024, from
https://www.theguardian.com/world/2015/nov/04/canada-cabinet-gender-diversity-justin-trudeau.

• United Nations (1948). Article 1, Universal Declaration of Human Rights, retrieved February 2, 2024, from https://www.ohchr.org/en/human-
rights/universal-declaration/universal-declaration-human-rights/about-universal-declaration-human-rights-translation-project

• United Nations (1976). International Covenant on Economic, Social and Cultural Rights.
https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights