Christina Hall of Fraser Milner Casgrain LLP's Toronto office. This article first appeared in CCH's Focus on Canadian Employment and Equality Rights. © CCH Canadian Limited.

One of the most interesting developments in the human rights arena over the last 50 years or so has been the subtle shift in Canadian society in terms of what people consider to fall within the scope of the word "disability". For many years, the terms "disability" or "handicap" would conjure up the image of a person in a wheelchair—similar to the symbol used to indicate handicapped parking spaces in a parking lot. The term might even have called to mind the image of a blind person with a cane or guide dog or a deaf person with a hearing aid or sign language interpreter. Generally, the term was thought to reference a person with an obvious physical condition that, to a greater or lesser extent, impeded the person's ability to participate in society in the same way as a non-disabled person.

Gradually, however, these stereotypes about disabilities have changed. Society and human rights legislation have concurrently evolved to recognize a wider range of conditions as "disabilities". These conditions are often invisible, in that they cannot necessarily be discerned by observing a person's physical condition. This category of disabilities includes psychological and mental health conditions, such as diagnosed conditions of bipolar disorder, depression, learning disabilities, dementia and schizophrenia. Addictions to alcohol, gambling, prescription drugs or illegal drugs have also gained legal recognition as disabilities, while other addictions, such as to pornography, have received more cautious treatment. Over the last 15 years or so, "new" conditions have appeared more frequently in the disability discourse—at least "new" in the sense that the names of the conditions were generally not well-known to the public previously. These have included such conditions as anxiety disorder, chronic fatigue syndrome, attention deficit disorder (ADD), hyperactivity and fibromyalgia. While there is still a level of debate in the medical community about some of these conditions, most have been recognized as disabilities by human rights adjudicators for legal purposes, when supported by appropriate medical evidence.

The evolving acceptance of additional conditions as "disabilities" has coincided with a sense that it has become more socially acceptable for Canadians to disclose disabilities and discuss disability-related issues. Strong individual advocates and human rights organizations have been key players in encouraging this process, along with certain facets of the medical community. While this social discourse has undoubtedly been to the benefit of all Canadians, it has also presented new challenges to employers and employees dealing with disability and accommodation issues in the workplace. This struggle becomes obvious when reviewing the Canadian statistics in respect of the proportion of human rights complaints that are based on disability issues. In the year 2006-2007, 56.31% of human rights complaints filed with the Ontario Human Rights Commission were based on disability.Ontario Human Rights Commission, Annual Report 2006-2007, online at: http://www.ohrc.on.ca/en/resources/annualreports/ar0607/pdf. In Alberta, that number was 47%,Note: This statistic combines physical disabilities (34%) and mental disabilities (13%). Alberta Human Rights and Citizenship Commission, Annual Review 2006-2007, online at: http://www.albertahumanrights.ab.ca/publications/Annual_Review/Ann_Rev_06-07.pdf. and in British Columbia, 36%.British Columbia Human Rights Tribunal, Annual Report 2006-2007, online at: http://www.bchrt.bc.ca/annual_reports/Annual_Report_2006-2007.pdf. Disability has become a significant source of human rights complaints across the country and it is one that employers must learn to properly manage. One of the continuing obstacles in this regard remains the concept of the "invisible disability". Some employers assume that employees with non-visible injuries or illnesses are necessarily malingerers or that they are exaggerating their condition. While this may be true for a small proportion of employees, the assumption is not valid with respect to the vast majority. Other employers simply struggle in good faith with the seemingly ever-increasing obligation to accommodate employees to the point of undue hardship. Some rather extraordinary human rights cases decided in recent years have exposed employers to significant financial costs, and have required employers to tolerate high levels of disruption in their workplaces, or extraordinary levels of absenteeism, all in the name of accommodation. Most employers want to "do the right thing" for employees with disabilities, but are frequently surprised, and sometimes frustrated, when they learn just how far human rights adjudicators may require them to go in order to achieve those ends.

All of that being said, employers fare best when adhering to some basic steps in every case in which an employee raises an issue of disability that requires accommodation. These steps can help ensure consistent treatment of employees, which is especially important when dealing with invisible disabilities that may be difficult for employers to understand or easily accept. Additionally, by following these steps, employers will often be able to determine, based on medical information, whether the employee in question has a legitimate condition that requires accommodation or whether the employee may be a malingerer:

• Treat each employee who comes forward with a request for accommodation of a disability with dignity, respect and an open mind. Avoid making assumptions. No matter the alleged disability or the employer's possible scepticism, never demean the employee. Remember that just because an employee's alleged disability is not obvious, that does not mean that it does not exist.
• Proceed reasonably. This includes requesting that an employee provide medical information substantiating that he or she has a disability. Employers are not entitled to diagnostic information, but they are entitled to information about the employee's functional abilities, limitations and required accommodations.
• Do not automatically disregard the medical information provided by the employee's treating medical practitioner without a reasonable basis for doing so. Follow up with the medical practitioner if there is any confusion as to what accommodations are being requested or if the medical information provided is not sufficient. It may be that the medical practitioner is simply unfamiliar with the type of information that will be useful to an employer and he or she may need additional guidance. Make use of independent medical examinations sparingly, and only if they are truly necessary in order to gather the appropriate medical information with respect to an employee.
• Involve the employee in the search for appropriate accommodation. Although it ultimately is the employer's responsibility to find a solution that accommodates the employee, the employee may be able to suggest solutions that an employer would not have considered. Additionally, most employees feel more positive about solutions that they have taken part in creating.
• Finally, always remember to treat each employee individually and avoid the temptation to automatically apply a solution that may have worked in another case. Take the time to consider and document all options—even if they are not implemented—as it will demonstrate that the employer genuinely considered the accommodation measures that would benefit that particular employee.

As the concept of "disability" continues to evolve, employers that are open-minded and take the time and effort to apply a methodical process to the assessment of disability claims in their workplaces will be well positioned to deal with this continuing evolution.

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