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To disclose or not to disclose: Saying nothing to a potential employer until you have no choice

The question of when and what to disclose to a potential employer can be a difficult one.  For those who are totally blind, or who are only marginally partially sighted, this might not present as much of a challenge: you can't very well hide the guide dog or the white cane.  But for those who have low vision, and who may or may not even be legally blind (but require accommodation nonetheless), the waters are quite a bit murkier. 

I have always been of the opinion that, if there is any chance at all that accommodation will be required, an employer should be advised as soon as that becomes known to the applicant.  That may or may not be before the interview, if the interview itself will not involve any tests or other activities that might be difficult to accomplish.  If it isn't disclosed at the interview, then it should almost certainly be disclosed once the job has been offered.  It has always seemed reasonable enough to me that, if you are going to require some kind of accommodation, a little notice wouldn't be a bad thing.

But it would appear that the Human Rights Tribunal of Ontario takes a more generous view to the matter, at least from the employee's perspective.  In Wappler v. Geo Holiday Services, 2010 HRTO 1465, the HRTO ruled that the employer did not make a reasonable effort to accommodate the employee, and awarded her $10,000 for loss of dignity and injury to her feelings and self-respect, plus $9,100 in lost wages.  How did this come about?

Ms. Wappler applied for a job in a call center, and discovered on the first day of training that she had difficulty reading the materials and accessing the computer system.  She advised her supervisor of the problem, and the company arranged to have at least some of the materials for day two reformatted - though they claimed there was insufficient time to redo everything for the following day.  The HRTO didn't buy this argument:

[18] ...  I find that Geo Holiday’s conduct violated both the procedural and substantive content of the duty to accommodate. ... Although she was provided some of the required text enlarged she was not provided the entire package of materials as requested. The explanation provided by Ms. Costa that there wasn’t enough time to enlarge all of the hard copies of text and that the text was repetitive, therefore all of it did not need to be enlarged demonstrates a lack of effort to meet the respondent’s obligation to accommodate in this case.

They were also arranging for a larger monitor to be brought in, though there is some factual dispute over just how long that would take.  The HRTO believed that the company said it would take 6 to 8 weeks to get such a monitor.  The employee offered to provide her own monitor, but the company indicated they would not take responsibility for it or prevent others from using it.  The employee, believing that neither the 8 week delay nor the forced donation of her own monitor to the employer was reasonable, the employer told her that they "could not accommodate her disability and that her record of employment would state physical disability as the reason for ending the employment relationship."  And it did.

Most significant in this decision is that the HRTO took the view that the applicant was under no obligation to predisclose her disability or to provide advance notice of accommodation requirements:

[19] I also find that there was insufficient exploration of options that may have been available to accommodate the applicant’s disability. Although Ms. Costa testified that had the applicant brought the disability to their attention in advance arrangements could have been made to accommodate her, there is no obligation upon the applicant to do so.  In this case it was not until the applicant began the training that she realized she would have trouble reading text and portions of the information displayed on the computer screen.  As soon as the applicant discovered her difficulty she advised her manager Ms. Lecompte and explained her accommodation needs.

Thus the question of when one is required to disclose a disability takes another twist.  From a purely legal standpoint, in Ontario, it appears that not disclosing that disability until such time as it actually proves to be a problem does not in any way mitigate an employer's obligation to accommodate said disability promptly and efficiently.  And for those whose vision might not be a significant barrier 90% of the time, perhaps this provides the answer to the question of whether or not to disclose.  But as with everything, your mileage may vary and everyone's situation is unique.

Disclaimer:

This blog is curated by the AEBC, but welcomes contributions from members and non-members alike. The thoughts, views, and opinions expressed in the Blind Canadians Blog are those of the contributing authors and do not necessarily reflect those of the AEBC, its members, or any of its donors and partners.

Comments

Interesting indeed! I conditions can change rapidly or slowly depending on the stage of the eye condition. However, I believe the employee obviously recognized experiencing some difficulties with vision and even though it wasn't a problem at the employment she had previously, it should have been made known to the new employer of her condition.

this brings up many interesting issues. I may have missed it, but if she was able to do a similar job before without accomodations, and her disability changed between jobs, perhaps she thought it would still be OK to read normal print on a computer screen. The advantage of the HRC's decision here is that if I am employed in a job, and the nature of my disability changes during my employment it becomes harder to dismiss me for disability related reasons.

If we want a more equal world, employees should be willing to have these materials available in all formats. Firing someone because they can not read the computer, should not be an option. Even if the Wappler was asked to find her own salutions to the barrier, Itwould have been a much more dignified solution than the companies response. This is an interesting reason why telling disabled people that they should just get jobs and stop using tax payers money just does not work.

Having not read the decision, but based on the way it is described here, this seems like the right decision. What I wonder, though, is whether the decision, or perhaps just aspects of the decision, would have been different if Ms Wamppler reasonably could have been expected to predict that she would have difficulties reading the required materials -- say, for example, if she had held a similar job in the past and had required similar accommodations. In other words, while a person cannot be penalized for failing to anticipate necessary accommodations and consequently not disclosing, is there an expectation that a person will act in good faith and make accommodation requests as soon as they can reasonably be expected to be required? If so, then one recourse for an employer is to argue that an employee did not act in good faith with respect to accommodation requests and disability disclosure.

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