Discriminatory Behaviours Towards Employees with Disabilities: An Inductive Empirical Legal Research Approach to Ontario Human Rights Tribunal Cases

Researchers have devised various methods to gauge employers’ perceptions of employees with disabilities. Most of these methods involve employer self-reports, with only a few studies examining the behaviour of employers. This study applied a unique, untapped data set—decisions from the Human Rights Tribunal of Ontario—that captures retrospective information on the behaviour of employers. Forty-three decisions were analyzed, resulting in 16 cases with findings of discrimination, which were further coded and analyzed for iterative, emergent patterns of employer behaviour and for how employers socially construct disability.

The first objective of the research was to discern patterns of employer behaviours towards employees with disabilities. Six patterns emerged from the data. First, employers deployed ten different explanations to excuse their discriminatory behaviour: (1) the employee had a high incidence of absenteeism, (2) the employee had abandoned their job, (3) the employee’s behaviour was inappropriate, (4) the employee was in the probationary period and could be fired at will, (5) the employee violated the employer’s zero-tolerance policy, (6) the employer’s decision to terminate was made before the disability was disclosed, (7) the employee’s safety was at risk, (8) the medical documentation provided did not provide sufficient information, (9) the employee’s performance was poor, and (10) employee had discipline issues. Second, all the accommodation requests ended with the ultimate employment penalty—termination of the employee’s employment, constructive termination, or resignation. Third, it was found that a significant number of the employees experiencing discrimination had either a combination of mental health issues, hidden disabilities, or precarious employment. Fourth, contact theory (Allport 1954) posits that contact between different groups will lead to attitude change, diminish intergroup prejudice and improve intergroup harmony. Contrary to contact theory, experience with an employee with a disability did not arrest the employers’ discriminatory behaviours. Fifth, the experience in these cases is contrary to the theory that suggests that organisations with more flexible structures are more likely to accommodate employees with disabilities (Baumgärtner, Dwertmann, Boehm and Bruch 2015). Lastly, unlike Beatty et al. (2019) findings that large, public-sector and unionised organisations are more inclusive, in the cases here, the size of the organisation, the presence of a union or the presence of human resource capacity in the organisation did not mediate inclusion and responsiveness to disability needs.

The second objective of this research was to examine how employers socially construct employees with disabilities. Employers’ excuses socially construct employees with disabilities in pejorative ways. Moreover, the workplace is comprised of layers of social constructions (constructive discrimination, harassment, denial of nonapparent disabilities, construction of organisational culture, construction of psychological safety and organisational justice climates, notions of the standard worker, leadership style, belief in a just world, trust).

The most significant conclusion is that discrimination was not driven by financial costs related to accommodations or other reasons employers typically give to explain their discriminatory behaviour. Most accommodation requests involved modifications of the scheduling but not financial outlays. When expense was required, none of the accommodations resulted in an undue hardship. However, it is hypothesised that discrimination of these employees results from managers’ implicit presumption that managing employees with disabilities would consume inordinate amounts of managers’ time. In reality, some accommodations might require additional manager time, such as flexible scheduling but no time commitment remotely approaching undue hardship.

The implication is that misinformation about managers’ time commitments to manage employees with disabilities adds a layer of complication in creating disability confident employers, particularly as it likely operates at an unconscious level.