Accommodation is an important issue when it comes to employment law. There are certain prohibited grounds of discrimination under Ontario’s Human Rights Code, 1990 (“Code”) The Code requires that an employer reasonably accommodate an employee on the basis of a prohibited ground. Failure to do so may result in a finding that the employer acted in a discriminatory manner.

Again, employers have a legal duty to accommodate an employee under the Code. One part of that duty is the legal duty to inquire. This blog seeks to look closer at this duty, such as looking into what steps an employer should take to ensure that they meet their duty to inquire and what should an employee do if they believe that their employer has failed to meet their duty to inquire.

What is the Duty to Inquire?

Simply put, the duty to inquire is a legal obligation that employers have toward their employees related to the employee’s human rights and ability to participate fully in the employer’ workplace. In cases where the employee may need accommodation, the employer must move forward to address those concerns and inquire about any possible need for accommodation even if the employee has not specifically asked for accommodation.

An employer significantly raises their risks of litigation if an employer fails in their duty to inquire. For instance, if an employer disciplines the employee for certain behaviours that the employer believes are acts of misconduct but these acts are actually related to a protected ground under the Code that may need to be accommodated the employer could be at risk for a claim from the employee for wrongful dismissal and a violation of their human rights.

Imagine a scenario in which an employee is late to work for several months almost each day. However, instead of inquiring why the employee is always late to work, the employer moves to discipline or demote the employee because of their tardiness. The employee brings a wrongful dismissal claim in response and has requested additional damages because they believe they were discriminated against as the reason for their continued lateness was not because of any act of misconduct but because they have familial caregiving responsibilities that hindered their ability to attend work on time. Had the employer inquired about the reason for the lateness they could have discovered this reason related to a protected ground under the Code prior to litigation and accommodated the employee but they failed in their duty to inquire. A common accommodation is altered work hours or scheduling or the ability to work remotely.

What Steps Should an Employer Take to Ensure that they Meet the Duty to Inquire?

An employer should not ignore signs or warnings that an employee may need to be accommodated such as changes in an employee’s behaviour or performance.

This is a fact-driven and context-driven analysis on the part of the employer. The employer will need to assess what the set of circumstances are at hand to reasonably determine when the duty to inquire would be triggered.

Here are some specific steps that may be taken in most instances:

1. Once certain behaviours or performance-related issues are identified with respect to an employee, the employer should approach the employee and ask if the employee needs any help with respect to these issues.
2. The employer should ensure that these discussions are held in confidence and in a private setting.
3. The employer should ensure that the employee understand that they are free to advise the employer if they need any assistance and they can disclose any relevant information that would be necessary for the employer to understand what is needed to accommodate the employee. The employer does not need to know the exact specifics of any situation that the employee has but an overall idea as to what accommodations may be necessary is only what is needed. For example, the employer would not need to the details of a medical diagnosis but only certain generalities that are necessary for the employer to understand what steps they can take to accommodate the employee.
4. The employer may canvass with the employee certain ideas or solutions with respect to any aspect of accommodation that the employee may need.
5. The employer should also keep a record of what has occurred and follow up with the employee when necessary.

What Steps Should an Employee Take if their Employer Fails to Meet the Duty to Inquire?

An employee should approach an employment lawyer to determine what their next steps should be. Failure in the employer’s duty to inquire can lead to a failure to accommodate and constitute discrimination under the Code and therefore result in a human rights complaint. The employee may also bring a civil claim against the employer for common law and statutory damages in a wrongful dismissal lawsuit. Depending on the circumstances, the employee may also be entitled to punitive and general damages.

How can Zeilikman Law Help?

Zeilikman Law helps both employers and employees with employment law issues around workplace accommodation and human rights issues by providing legal advice, preparing various policies, correspondence or other documentation, helping to negotiate a resolution to these issues, litigation management, etc.

For more information about how employment law and human rights issues interact, please visit:

• Can an Employee Claim Discrimination Against an Employer as a Result of Family Caregiving Responsibilities?
• Employer Obligations When an Employee Requests Accommodation in the Workplace
• I Am Experiencing a Toxic Work Environment. What Should I Do?

You can contact Zeilikman Law today at (905) 417-2227 or online here for a confidential consultation to get your questions answered about this topic and other employment law issues.