When I first started this project, my focus was gender and racial discrimination. The reason for that was the fact that few people would openly make a racist or sexist statement to a person they are firing or otherwise disadvantaging.
I reasoned that discrimination on the basis of a disability would be easier to prove and, therefore, cases that were brought forward would have a better chance of succeeding.
However, I’ve since found that this is not necessarily the case. In fact, the issue of accommodating disability in the workplace has become increasingly difficult. I found that the tribunals are just as likely to accept applications to dismiss that prevent evidence from being presented or heard when they are looking at disability.
In a 2012 paper entitled “Accommodation in the 21st Century” published by the Canadian Human Rights Commission, the authors argue that efforts to tackle systemic discrimination are under attack by complicating the prima facie test. There’s an increased movement to look at the types of justifications that employers and others make for their conduct as part of the prima facie test.
Prima facie means that, if there’s no other justification, the facts support the claimants’ case. If a tribunal feels that a claimant has not made a prima facie case, they will not accept the case.
At one time, tribunals looked at three factors to decide a prima facie case: 1) The person was a member of a protected group; 2) the person experienced adverse treatment; and 3) there was a link between the protected group and the adverse treatment. Now tribunals have started to bring in justification to complicate the matter.
This means that a claimant not only must prove that there was a link between the disability and the treatment, but that the adverse treatment was due to “stereotyping.”
Thus, someone who has trouble arriving at 9 am due to their disability can be fired because the employer has not necessarily stereotyped them. They just fire them for lateness. This basically throws the whole idea of reasonable accommodation out the window.
The employer is not even required to consider whether they could have accommodated the employee’s disability in the workplace, for example, by adjusting their hours.
Thus, the rush to judgment that tribunals, such as the Human Rights Tribunal, are making can be seen to be having far-reaching negative effects on societal inclusion.