Datt has a disability. It should be well-known that pursuant to the Ontario Human Rights Code, disability can be defined as a means or reason that an individual is believed to have had some sort of degree in physical disability, disfigurement, malformation or infirmity that is as a result of birth defect, bodily injury, or illness and, without limiting what is considered as the foregoing in generality, epilepsy, diabetes mellitus, amputation, muteness or speech impediment, , a brain injury, lack of physical co-ordination, blindness or visual impediment, any degree of paralysis, deafness or hearing impediment, or physical reliance on a guide dog or other devices such as a wheelchair. Additionally according to the Ontario Human rights code, the term disability should be defined or interpreted in broad terms that have to include the past and the present conditions that the said individual is having. Furthermore, the disability that the individual has should be a subjective component that is based on the perceptions of the disability. This means that individuals have to be protected from developmental disabilities or the perceptions of the disability. From the code, one can deduce that even the most basic or minor cases of infirmities or illnesses can be considered as disabilities so long as the affected individual is in a position that they can show that they were treated in a manner that was not fair due to the perceptions of the disability. On the other hand, the individuals who may have some particular forms of ailments which cannot show that they were treated in a manner that was not equal to the manner in which other individuals are treated. The case would not even meet the Prima Facie test that is used for discrimination. It is thus imperative to note that it is critical to analyze the context in which the differential treatment that the individual faces so that one can determine if the case qualifies as a case of discrimination (Granger, 2010).
The case of Datt should be considered as a discrimination case. According to a previous case, Mercier, one can deduce that from the assertion that the Supreme Court made in that the disability that an individual suffers sub be interpreted including the subjective component of the case as the treatment of the individual is based on myths, perception and stereotypes or the actual functions of a person due to illness. When one is denied employment due to a form of illness, this has to be considered as a form of discrimination. When the Restaurant decided that Datt could not be able to return to the restaurant due to the fact that the restaurant business was not good for her, and yet she had been working there initially (Friedman, 2005). If the restaurant had employed her initially, it means that the work that had been provided was good to her at the time. The fact that Datt began having some serious medical condition, this does not qualify her to work at the restaurant anymore. There are three sectors of the restaurant that could have been suitable for Datt to work at and this means that the Restaurant had other options that could not have aggravated the situation that Datt was in. Some individuals could argue that the case may not be discrimination since the disability was not perceived. However, this is not the case. Datt contract was terminated since she could no longer wash utensils in the restaurant. The restaurant did not see this a being positive to the restaurant as they could have needed to hire another individual. Regardless of whether Datt was able to prove her disability or not, she faced a great deal of discrimination. The restaurant should have integrated her to their other sections of the restaurant.
Regarding the issue as to the duty of the restaurant to accommodate Datt, the restaurant should accommodate her. This is because according to the seventieth section of the Human Rights Code, the employers in the restaurant had a duty to accommodate their employee due to the undue hardship that Datt suffered. Accommodation can be defined as the process and is the matter of degree that has to be fulfilled when dealing with issues of discrimination. The most appropriate accommodation is when the needs of the individual are met in a manner that justifies the dignity of that individual. According to the Human Rights Code, it is the responsibility of employers to accommodate individuals with disabilities and that the accommodation provided should be in a manner that respects the dignity of the individual. If the establishment is not in a position that can accommodate the individual, then they should not create an undue hardship. Dignity in this instance has to include a consideration of how the accommodation of the individual is provided and how the individual is also integrated into the participation in the process. There are different ways in which Datt could have been accommodated. In this instance, the essence could have been individualized in that the accommodation could have been reasonable. When Datt was washing the utensils, it was necessary for the restaurant for finding a job that she could have performed at that did not affect her hands as the detergent affected. In this case, assuming that the restaurant did not contest the decision and had decided to accommodate Datt, it was their responsibility to come up with an initiative in accommodating the employee. Datt should also have taken a more affirmative role in the process (Betteridge, 2006). The restaurant did not fulfil their responsibility to the point that may be considered out of undue hardship as the moment that they realized the problem that Datt had, they moved swiftly and terminated her contract. All the blame cannot, however, be placed in the restaurant as they have offered Datt an option to continue working for three months while still working or searching for a job.
If I was a member of the tribunal, this particular case could have been solved through the use of the Ontario Human Rights Code. Initially, I would have analyzed the case to see if Datt had some form of disability. Having made sure that the claim of disability by Datt had been justified, I would judge that the restaurant had treated Datt with discrimination. This is because they terminated her contract based on the fact that she could no longer work in the kitchen by washing utensils (Harder and Scott, 2005). There were other options that could have been pursued by the restaurant that they did not put any effort in doing so. I also believe that in some instances, some people have to be treated a little bit differently based on the circumstances that they may find themselves in. this should be done so as to avoid or prevent any instances of discrimination. I would have sued the restaurant so that they pay Datt based on the fact that they discriminated her on the basis of her illness. It is the obligation of the restaurant to ensure that they take the necessary steps to prevent all or eliminate any instances that may occur that can be the judge to discriminate individuals. Additionally, most of the courts in Canada have made it clear that all organizations have the responsibility of building accommodation to their employees in a manner that ensures that the way that they do business is not affected. All the barriers of accessibility to equal rights to individuals should not be prevented. I also believe that it is difficult to pinpoint the actual undue hardship that an individual faces since there has been no policy or set of guidelines that have been set. Additionally, once the prima facie incident of discrimination has been found in the case, it is then the responsibility of the employer or the legal burden of the employer who is responsible for ensuring that accommodation is provided to show that the discrimination that Datt faced was justifiable. The factors for providing such reasons as to why the individual was treated in a discriminate manner should provide good business sense. If Datt had been treated in a manner that exhibited maximum integration and dignity, then the restaurant could not have been held liable. In this instance, however, sections 11, 17 had been violated since there seems to be a direct discrimination and an adverse discrimination on Datt. The individual who was responsible for providing accommodation failed on their part to fulfil their roles.
Harder, H. G., & Scott, L. R. (2005). Comprehensive disability management. Edinburgh ; New York: Elsevier Churchill Livingstone.
Granger, L. (2010). Best practices in occupational health, safety, workers compensation and claims management for employers: Assisting employers in navigating "the road to zero". Boca Raton, Fla: Universal-Publishers.
Friedman, A. H. (2005). Litigating employment discrimination cases. Costa Mesa, CA: James Pub.
Betteridge, G. (2006). Supreme Court affirms that Ontario tribunal has power to consider Human Rights Code. HIV/AIDS Policy & Law Review / Canadian HIV/AIDS Legal Network, 11 (2-3), 48-49.
