Full bibliography

Traditionally, management had the right to hire, fire and schedule hours of work, unless constrained by collective agreements or contracts. When exercising these rights, management has a duty to act in a fair manner. There is concern, however, that some management practices might have a disparate effect on the health and performance of disabled employees. Human rights legislation in Canada prohibits both overt discrimination and unintended systemic discrimination arising from employment practices which may seem neutral in application but which have a disparate effect on a protected group of employees. Four specific points of law illustrate the balancing act involved in adjudicating adverse effect discrimination allegations of disabled employees: 1. actuarial risk versus individual assessment, 2. shifting onus of proof from employer to employee, 3. importation of human rights principles into arbitration, and 4. discipline and discharge of employees. Special attention is placed on diabetic shiftworkers as an example of adverse effect discrimination.