In Shahbakhshi v Melo and another, the British Columbia Human Rights Tribunal (the “Tribunal”) found that a salon owner discriminated against a deaf applicant by refusing to consider her for a job after learning about her disability, without exploring how she could still perform the role with reasonable accommodations. The case serves as a strong reminder to employers that the duty to accommodate begins at the hiring stage, and that failing to engage meaningfully in the accommodation process can lead to significant legal consequences. When employers fail to consider reasonable accommodations or dismiss applicants based on perceived limitations, they risk breaching human rights laws and overlooking highly qualified candidates.

Background

In early 2020, an applicant with prior experience operating her own beauty clinic applied for a part-time laser technician role at a salon. The position involved consulting with clients and performing laser treatments—tasks the applicant had performed before. The applicant submitted her application through a vocational counselor, who disclosed that the applicant was deaf and assured the employer that this had never interfered with her ability to provide excellent customer service.

The employer agreed to an interview, and an American Sign Language interpreter was arranged. According to the applicant and the interpreter, when the interpreter arrived first and explained her role, the employer expressed surprise and confusion, claiming she was unaware that the applicant was deaf or required an interpreter. Once the applicant arrived, the employer told her she could not be hired because of her inability to communicate with clients, despite the applicant’s efforts to explain that she could communicate effectively through text and body language.

The employer offered a different version of events and explained that while she was aware that the applicant was deaf, she did not expect an interpreter. She said the applicant and interpreter spoke privately in sign language upon arrival, and that the applicant became upset and left without speaking to her.

The Tribunal’s Decision

The Tribunal held that the employer had discriminated against the applicant contrary to s. 13 of the British Colombia Human Rights Code. At the heart of the case was the credibility and reliability of the witnesses. The Tribunal found the interpreter’s evidence both credible and reliable, emphasizing that she had no personal stake in the outcome and that her testimony closely aligned with the applicant’s version of events. The Tribunal concluded that the employer either forgot or failed to notice that the applicant was deaf and, upon realizing it during the interview, made an immediate decision to reject her application, without engaging in discussion of the applicant’s qualifications or considering her proposed accommodations.

The Tribunal applied the legal test from Moore v. British Columbia [Moore], stating that for discrimination to be found, disability need only be a factor in the decision, not the dominant or primary factor. The Tribunal stressed that the employer’s refusal to conduct the interview based on assumptions about the applicant’s ability to communicate directly with clients linked the decision to her disability, meeting the threshold outlined in Moore.

Importantly, the Tribunal found that the employer failed to provide a non-discriminatory explanation for the decision. There was no evidence that verbal communication was essential for the role, or that an accommodation would cause the employer undue hardship. The failure to explore accommodations—or even listen to the applicant’s suggestions—was central to the Tribunal’s finding of discrimination.

The Tribunal awarded the applicant $15,000 in damages for injury to dignity. However, it did not grant compensation for lost wages, as the role remained unfilled due to the COVID-19 pandemic and the resulting business slowdown.

Key Takeaways for Employers

1. The Duty to Accommodate Starts During Recruitment: Employers are legally required to consider accommodation needs from the moment a candidate applies—not just after hiring. If an applicant discloses a disability, the employer must make genuine efforts to assess and provide accommodations throughout the application and interview process. Failure to do so could result in human rights complaints.
2. Proactively Engage in the Accommodation Process: Employers should take proactive steps to identify and remove barriers to ensure equal opportunity for all applicants and employees.  Employers should take employee requests for accommodation seriously and remain open to considering any employee suggestions for accommodations short of undue hardship. A collaborative approach shows a willingness to accommodate and helps avoid assumptions or miscommunications that could lead to discrimination claims.
3. Avoid Assumptions About Limitations: Employment decisions should focus on whether an applicant can perform the essential duties and responsibilities of the job, with or without accommodation. Assumptions, such as believing someone who is deaf can’t communicate effectively, can result in biased and unlawful decisions. Employers should focus on capabilities, not limitations.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.