UNDERSTANDING DISABILITY DISCRIMINATION AND WRONGFUL TERMINATION

According to Section 10(1) of the Ontario Human Rights Code, Disability includes physical and mental conditions and workplace injuries. To prove Disability Discrimination one needs to demonstrate that the person is disabled as per the code that they have been subjected to differential treatment in employment and that the disability played some role in this treatment. Understanding disability discrimination can be quite tricky. We are here to help you with it. Here is all that you need to know about it. However, if you feel you’ve faced this, it is crucial to reach out to a disability discrimination lawyer.

What are the common types of disability discrimination?

The following are the most common types of disability discrimination that take place:

1. The employee was injured or suffering from a serious illness which prevented them from returning to work temporarily, while claiming WSIB, STD and LTD benefits as income substitution. When the employee files a request to return to work after getting a medical clearance from the physician, the employer denies such request, effectively terminating such employee.

2. An employee was injured or suffering from an illness, which led to an impairment. This impairment now restricts his or her ability to be fully functional at the job. Due to this, the employee requests disability accommodation. The failure of the employer to investigate into the issue, and to properly accommodate to the point of undue hardship is an act of disability discrimination.

3. When the employer refuses to promote or to terminate an employee based on the idea that the employee is addicted to drugs or alcohol or has a history of addiction without discharging the duty is to investigate whether the employee can overcome this dependency, or whether he or she posts any danger to potential customers and colleagues.

4. Terminating an employee due to decreased productivity because of the injury or a disability.

Wrongful Termination as a Result of Disability discrimination

When an employee’s contract is terminated by the employer without appropriate compensation, the dismissal is deemed Wrongful Termination. 

In Ontario, you do not have to establish actual damage such as financial loss when filing for a wrongful dismissal action. In Defence, the employer is NOT required to provide a reason for the termination but he or she must demonstrate that you, the employee, were provided adequate working notice or a payment in place of notice.

Having said that, however, if the termination is a result of disability discrimination, it is disallowed, mandated by Section 5(1) of the Ontario Human Rights Code which states that every person has a right to equal treatment with respect to employment without discrimination because of disability, race, religion, etc ….

What happens when disability discrimination is proven?

When the employee has successfully proven a case of discrimination, various remedies are available to the employee. 

General damages are available to successful employees claiming disability discrimination. The damage award is proportional to the seriousness of the discrimination.

This damage includes both non-compensatory and compensatory components. Non-compensatory damages might cover something like “injury to dignity, feelings and self-respect”.

General damages also have a compensatory component. The damage includes paying back the lost wages from the date of discrimination to the issuance of the decision. The amount could be very substantial considering that some cases might takes years from filing to the final decision at the Ontario Human Rights Tribunal or the Court. 

All the costs incurred because of discrimination are also reimbursed, such as incident medical costs for treating harassment related mental distress. 

Public interest remedies are also included. This includes training of management and employees. It also involves posting information about human rights, amendments to policies and other procedures.

Aggravating damages are also available in cases in which the employer demonstrated no remorse for his or her conducts, engaged in egregious and improper conducts post termination.

Punitive damages are also available in very serious cases of disability discrimination that shock the conscience of the Court.

Why you should reach out to a disability discrimination lawyer?

Navigating disability discrimination can be tough. It can give rise to heavy emotions and make one feel lost without knowing the solutions available. This is especially so in a case where the disability discrimination resulting in the employee being wrongfully dismissed.

Reaching out to a wrongful termination lawyer or a law firm knowledgeable in disability discrimination law can help you understand your case, help you determine whether you have a strong case or not. When you do have a strong case and that you have been terminated unfairly or being a victim of workplace harassment, the lawyer will listen to your needs and wants and work with you to fight for your rights. Whenever in doubt, you should reach out to a disability discrimination lawyer.