In Fretz v. BDO Canada LLP, 2014 HRTO 1288, the Human Rights Tribunal of Ontario dismissed a complaint alleging that a service provider was required to pay for a sign language interpreter for a prospective client who was deaf. Although the decision did not arise out of a traditional “employee and employer” relationship, the Tribunal’s decision provides valuable guidance for employers that interview prospective employees who are deaf or hearing impaired. The case was argued successfully on behalf of the service provider by Mark Mendl of Baker & McKenzie.
The applicant, Delynne Fretz, contacted the respondent to obtain advice regarding her own personal financial difficulties. The applicant was deaf and her first language was American Sign Language. The respondent, a provider of financial services, offered an initial meeting, free of charge, to outline the available options. At this meeting, the applicant was expected to explain, and communicate about, her own personal financial situation.
Because the applicant was deaf, the respondent attempted to setup an in-person interview at which keyboards and a computer screen would be used to communicate questions and answers. The respondent had adopted this approach when interviewing deaf or hearing impaired persons in previous cases. Although the applicant agreed she could communicate effectively in writing, the applicant expressed a strong preference for having an interpreter attend the interview.
On behalf of the applicant, a coordinator employed with the Canadian Hearing Society contacted the respondent seeking to confirm whether the respondent would be providing, and covering the costs of a sign language interpreter, at the interview. The respondent was willing to reasonably accommodate the applicant, but believed that an interpreter was not required to reasonably accommodate the applicant under the circumstances. The applicant agreed and had readily demonstrated she was able to communicate effectively in writing.
Ultimately, the meeting never occurred. The applicant acknowledged that she did not show up for the meeting or call to cancel it. Nevertheless, the applicant filed an application alleging discrimination on the basis of disability, claiming that the provision of a sign language interpreter was the only reasonable accommodation in the circumstances. The Human Rights Tribunal of Ontario dismissed the application, finding that the applicant had not established that she required a sign language interpreter to access the services that would be provided during the meeting. Communicating in writing was reasonable accommodation in the circumstances.
Cases in which the Human Rights Tribunal of Ontario considers the scope of an employer’s duty to implement accommodative measures during the interview process are relatively rare. It is therefore worthwhile to consider the implications of Fretz v. BDO Canada LLP, 2014 HRTO 1288 in the context of employment.
Three aspects of the tribunal’s reasoning in Fretz v. BDO Canada LLP, 2014 HRTO 1288 will assist employers who interview prospective employees who are deaf or hearing impaired:
- There is no “general rule” when it comes to providing a sign language interpreter at the interview. Whether the duty to accommodate will require this depends upon the applicant’s particular disability and the complexity of the information that is to be communicated at the interview. Employers should ask whether a hearing impaired applicant will be able to meaningfully participate (and therefore receive fair consideration in the interview process) if an interpreter is not present. The mere fact that an applicant would prefer to have an interpreter is not determinative. The law does not require an employer to accommodate personal preferences.
- Employers should be mindful to consult with an applicant who requests accommodation at an early stage, and to get written input as to what will be required to accommodate the disability during the interview process. This information – which should only be obtained if the applicant requests accommodation during the interview process – will assist the employer if an issue later arises regarding the reasonableness of the accommodation that is proposed or implemented.
- An applicant has a duty to meaningfully participate in the accommodation process. An applicant that refuses reasonable measures that would permit her to meaningfully participate in the interview process cannot later claim that she was disadvantaged because her personal preferences were not accommodated.