Incorporating accommodation into hiring policy can ‘reduce the need to do it when the hiring decision needs to be made’: lawyer
An Ontario company has been ordered by the province’s Human Rights Tribunal to pay an unsuccessful job candidate who is blind more than $28,000 damages for discrimination and lost wages.
The decision highlights the importance of incorporating the duty to accommodate in hiring practices and policies and, even if an employer follows some steps in the accommodation process, it may not be enough to fully satisfy the procedural duty to accommodate, according to Shannon Sproule, an employment lawyer and workplace investigator at Turnpenney Milne in Toronto.
“The company’s accommodation steps missed going beyond just internal discussions, and that really speaks to undue hardship,” says Sproule. “Convenience or comfort isn’t a factor that's considered when examining undue hardship.”
Convergys CMG Canada was a customer management company operating a call centre in Welland, Ont., that serviced a single third-party client, AT&T. AT&T provided the customers, software, and tools for Convergys to deliver its customer service program.
The worker, who was blind, applied for the position of frontline sales associate with Convergys in the summer of 2017. He attended an in-person interview on August 23.
Job applicant would need accommodation in the job
At the interview, the worker discussed the job description and signed off on a memorandum of understanding about the job requirements. Convergys asked the worker to describe the type of accommodations he would need to perform the job and the worker replied that a screen reader with a braille display and accessible training materials were necessary.
After the interview, Convergys management discussed the worker’s disability and that he suggested certain software and a headset as accommodations, but they would need to assess before offering him employment.
After some investigation by the information technology (IT) and operations management departments, the company determined that it couldn’t find a work-around that would allow a blind person to use the AT&T customized systems and software. The IT department tested various screen reader software programs, but it found they weren’t compatible. Convergys didn’t contact either AT&T or the worker during this process.
On Sept. 14, Convergys informed the worker that it couldn’t offer him employment because a blind person wouldn’t be able to work on their systems.
Worker claimed failure to accommodate
The worker filed a human rights complaint alleging that Convergys failed to accommodate his needs to the point of undue hardship and denied him employment based on his disability, which was contrary to the Ontario Human Rights Code.
Convergys maintained that it had engaged in the accommodation process but it had found no software programs that would allow the worker to work with their sole client’s software, so the worker couldn’t perform the essential duties of the position.
The tribunal heard evidence from both parties, including expert testimony from an accessibility consultant.
The tribunal found that while Convergys tested various software programs, it didn’t consult with the worker after the interview or provide him with an opportunity to participate in the accommodation process – the worker indicated that he had experience and background in accessibility technology from his previous employment. There was also no evidence that the company pursued accommodation options with its client, AT&T, or consulted external organizations with expertise in accessibility, such as the Canadian National Institute for the Blind.
The tribunal determined that Convergys failed in its procedural duty to accommodate by not exploring further accommodation solutions with the worker, who would likely have been able to suggest other software programs or help find alternative accommodation solutions that could have worked for him.
Collaboration, consultation a key point of accommodation
“There was a lack of collaboration and that's a key point of the procedural duty to accommodate - it's a two-way street,” says Sproule. “It's meant to be a conversation that's reflective of upholding the dignity of the individual who requires accommodation based on a code-protected characteristic.”
However, Sproule notes that collaboration doesn’t mean the worker determines the accommodation – and that’s where other avenues should be explored.
“Human rights law doesn't expect a company to be an expert in every form of disability-based accommodation, but if there are experts available that could help the company to accommodate the potential employee, the expectation is that it would consult with them,” she says.
In addition, Convergys didn’t provide evidence on the costs of accommodation that could make it undue hardship, said the tribunal. As a result, the company failed to meet its onus to prove that accommodating the worker would have been undue hardship, it said.
It may be difficult for companies to figure out when they’ve gone far enough in the assessment of accommodation, and there’s no magic number for how long it should take, says Sproule.
“One of the key terms to take from this case is a rush judgment – [the tribunal determined] that there was insufficient time and effort spent on that procedural obligation, followed by a rush to judgment,” she says. “A good takeaway for employers in general is to examine the process before rendering a decision, and really look at how long has been spent looking into it – does the decision [the accommodation isn’t possible] itself appear rushed?”
Accommodation policies in hiring
Convergys was ordered to pay the worker $20,000 as compensation for injury to dignity, feelings, and self-respect and $8,472 in wages lost from the date he was told Convergys wouldn’t offer him a job and the date he found alternate employment.
In addition, the company was directed to develop human rights and accommodation policies in hiring specifically applicable to blind persons, review their interview process to ensure accessibility for the blind, and make every effort to ensure accommodations for blind persons were addressed.
The remedy ordered by the tribunal is an indicator of what companies can do to ensure their hiring practices account for the duty to accommodate, according to Sproule.
“The remedy here was to develop human rights and accommodation policies in hiring, to review their interview process to ensure it’s accessible to the blind, and make every effort to ensure accommodations for blind persons are addressed,” she says. “So companies should be proactive and try to put those types of measures in place at the outset that could guide employees internally when they're reviewing accommodation needs in hiring practices.”
Developing proper hiring practices to follow is also where HR can proactively use experts to assess if there are gaps in the hiring processes.
“If you're doing it proactively, the hope is that you reduce the need to do it when the hiring decision needs to be made,” says Sproule. “And in addition to looking for gaps, you're also looking to see if there's adequate opportunity for individuals applying for jobs or in the workplace to know that accommodation is available and how to request it - those are good ways to ensure that the policies themselves set the company up for success.”
Sproule recognizes the balance that HR and hiring managers have to find between the duty to accommodate and operational needs – which often have a timeline to fill a position – but she notes that the law doesn’t require employers to hire someone that can’t fulfill the job itself.
“A good way to balance that is for the company to take it step-by-step and look at the actual requirements and whether there are accommodations available to meet those requirements,” she says. “That's another pitfall for employers - sometimes they start to look at it outside the parameters of the job requirements and they venture into more peripheral things or inconveniences that aren’t really tied to the job requirements.”
“If you have accessibility in mind when developing hiring practices, then you’re increasing the likelihood of being able to satisfy the duty to accommodate when needs themselves arise,” adds Sproule.
