Guide for Assessing Persons with Disabilities - How to determine and implement assessment accommodations - Legal framework
The duty to provide accommodations to persons with disabilities is well-established in Canadian law and jurisprudence. Emphasis is placed on the obligation to accommodate persons with disabilities, up to the point of undue hardship, to provide them with equal employment opportunities.
This section outlines the organization's obligations under the law and related policies requirements, considering the key notions of merit, duty to accommodate, reasonable accommodation, bona fide occupational requirement and undue hardship. Each relevant section of the different acts and policies are highlighted relative to accommodations during the appointment process
Sections 2, 3, and subsections 15 (1) (a) and 15 (2) of the Canadian Human Rights Act (CHRA) have an impact on the accommodation of persons with disabilities during the appointment process.
Section 2 states the purpose of the Act and emphasizes the obligation to provide accommodations, commonly referred to as the "duty to accommodate". For its part, section 3 lists the prohibited grounds of discrimination, and disability is one of them.
Subsection 15 (1) (a) specifies that a practice is not considered discriminatory if it is established by an employer to be based on a bona fide occupational requirement (BFOR).
Subsection 15 (2) establishes that for a practice to be considered base on a BFOR, the employer must demonstrate that accommodating the needs of an individual or class of affected individuals would impose undue hardship, considering health, safety and cost.
Sections 2, 5 and 6 of the Employment Equity Act (EEA) have an impact on the provision of assessment accommodations for persons with disabilities.
Section 2 states the purpose of the Act and identifies persons with disabilities as one of the four designated employment equity groups. Section 2 also states that "employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences."
Section 5 requires employers to identify and remove barriers to the employment of persons in the four designated groups, to institute positive policies and practices and to make "reasonable accommodations". This is to ensure that the representation of the four designated groups in the organization's workforce is at least proportionate to their labour market availability.
Section 6 establishes a number of limits to the employer's obligation to implement employment equity. Two of those limits are particularly relevant to assessment accommodations in the appointment process in the public service. They are:
- employers are not required to undertake measures that would cause undue hardship;
- employers are not required to hire or promote persons without basing the hiring or promotion on merit.
Thus, the manager engaged in an appointment process must respect merit, be prepared to assess applicants fairly and provide reasonable accommodations.
Sections 11 and 15 of the Public Service Employment Act (PSEA) gives the Public Service Commission (PSC) the authority to appoint, or provide for the appointment of, persons to or from within the public service (paragraph 11(a)) and to delegate any of the powers and functions related to appointment to deputy heads (subsection 15(1)) who, in turns, are encouraged to sub-delegate in writing their authorities.
The PSEA identifies merit and non-partisanship as the core values of staffing in the public service. Section 30 defines merit-based appointments as follows:
"30. (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.
(2) An appointment is made on the basis of merit when:
- the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and
- the Commission has regard to:
- any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,
- any current or future operational requirements of the organization that may be identified by the deputy head, and
- any current or future needs of the organization that may be identified by the deputy head."
Thus, appointment must be base on merit and applicants must undergo an assessment to demonstrate that they meet the qualifications of the position, which are established by the deputy head or its delegate before conducting the assessment. In the context of assessing persons with disabilities, providing accommodations when disabilities prevent persons from fully demonstrating their qualifications contributes to merit.
To ensure proper delegation of its authorities, the Public Service Commission (PSC) has developed an appointment framework to guide its delegates in building their own staffing systems while respecting the core values of merit and non-partisanship, as well as the values guiding appointments, which are access, fairness, representativeness and transparency. This framework has three components: Appointment Policy; Delegation; and Accountability.
The Appointment Policy component includes requirements to ensure that the appointment process is inclusive, respectful of differences and free of discrimination on the prohibited grounds contained in the Canadian Human Rights Act (CHRA).
For its part, the policy on Advertising in the appointment process requires "the provision of accessible formats, upon request, for communicating with persons with disabilities". This requirement ensures that persons who require other formats will also have access to communications.
Both the Employment Equity in the Appointment Process and the Assessment policies require deputy heads and those responsible for assessment to:
"Use assessment tools and processes that are designed and implemented without bias and do not create systemic barriers."
This requirement refers to the use of assessment tools and procedures that must treat everyone in a non-discriminatory and equitable manner thereby contributing to an inclusive assessment process. This does not necessarily mean treating everyone the same since assessment accommodations may be required for certain people in order to place them on a level playing field. Assessment tools and process must not restrict or exclude persons in designated groups and must not discriminate on any prohibited ground of discrimination. Therefore, every attempt must be made to use assessment tools and processes that are inclusive in their design and implementation. However, this may not always be possible, in which case assessment accommodations for individuals will be required. Tips on "How to think inclusion by design" can be found in appendix 1.
In addition, the Employment Equity in the Appointment Process policy states:
"Deputy heads must:
- accommodate the needs of persons through all stages of the appointment process to address, up to the point of undue hardship, disadvantages arising from prohibited grounds of discrimination"
This requirement refers to the obligation of an organization to take measures to eliminate disadvantages to employees and persons applying for employment in the public service. Emphasis is placed on disadvantages that result from a rule, practice or physical barrier that has or may have an impact on individuals or groups under the CHRA or identified as a designated group under the EEA. This policy requires employers to design employment systems, processes and practices that are inclusive and do not create systemic barriers to employment. However, in situations where barriers cannot be removed, individuals must be accommodated, when disadvantages arising from prohibited grounds of discrimination occur. For more information on inclusive designs, refer to the document "Guidance Series - Integrating Employment Equity in the Appointment Process", section 3.2.
The Assessment policy also states that:
"Deputy heads must:
- inform the persons to be assessed, in a timely manner, of the assessment methods to be used, their right to accommodation and how to exercise that right".
This requirement allows for applicants to determine whether, depending on the nature and extent of their functional limitations, they need accommodations for a specific assessment method.
In addition, the Assessment policy also states that, deputy heads must:
- ensure that those responsible for assessment:
- adhere to the guidelines set forth in the document entitled "Testing in the Public Service of Canada", published by the PSC, when developing and using standardized tests."
The document entitled "Testing in the Public Service of Canada" describes professional standards for developing and using assessment tools in appointment processes. Six specific standards are included for ensuring fairness when providing assessment accommodations (standard 3.7 and standards 6.1 to 6.5). These standards adhere to the four key principles that underlie the determination of accommodations, which are discussed in the section entitled Principles for assessment accommodations.
This joint policy of the Treasury Board and the Public Service Commission addresses accommodations in the workplace and in appointment process. With respect to accommodation in the workplace, the policy applies to all organization listed in Part 1 of Schedule 1 of the Public Service Relations Act from whom the treasury Board is the employer. With respect to accommodation during appointment processes, it applies to all organizations for which the Public Service Commission has the exclusive authority to appoint persons.
The objective of the policy is to ensure the full participation of persons with disabilities in the federal Public Service whether as applicants to appointment processes or as employees. The implementation of this policy involves:
- identifying and removing barriers to employment, career development and promotion of persons with disability unless doing so would result in undue hardship;
- designing all employment systems, process and facilities to be accessible by building accommodation into workplace standards, systems, processes and facilities; and
- accommodating individuals when such barriers cannot be removed. Such accommodation must be made to the point of undue hardship, taking into consideration health, safety and cost. Accommodation must be made on a case by case approach and respect an individual's right to privacy and confidentiality
The reader is referred to the policy document for a description of the specific requirements arising from its implementation.
The purpose of the Privacy Act is "to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information" (section 2). The Act clarifies the nature of the personal information that can be collected by government organizations. As well, it specifies why and how personal information can be collected and how it may be used. Requirements related to the retention and disposal of personal information are also described. Finally, the Act discusses issues concerning the disclosure of personal information.
When collecting personal information to establish assessment accommodations, one also has to be particularly aware of sections 4, 7 and subsection 8 (2) of the Privacy Act. Section 4 of the Act specifies that no personal information should be collected by a government institution unless it relates directly to an operating program or activity of the institution. Thus, when establishing assessment accommodations for persons with disabilities, the information that is collected from the applicant or any professional must be directly related to the establishment of the accommodations.
Section 7 and subsection 8 (2) of the Act specify that personal information shall not, without the consent of the individual to whom it relates, be used by the organization except for the purpose for which the information was obtained, in this case to establish assessment accommodations; and when subject to another Act of Parliament, such as in the case of a complaint, to the Attorney General for use in a legal proceeding.
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