Spell it With Me Now ... A-C-C-O-M-M-O-D-A-T-I-O-N-S

For your human rights in employment education and entertainment today, I offer a little story about a pizza shop in Utah that had to pay out 'big dough' for failing to provide reasonable accommodations to an employee with Down Syndrome. 

Actually, from my (and perhaps your) point of view, it's even worse than your that - this wasn't just your garden variety failure to accommodate case - this particular employee had "happily did his job for more than five months with 'an independently employed and insured job coach* to assist him'.” 

Or, at least he had until an operating partner of the company saw him working with his coach, and ordered him fired.

Seriously? Some people companies people will never learn.

See, even though individuals with disabilities living in Utah do not have the benefit of the Canadian Charter of Rights and Freedoms (or, more particularly, sec. 15 thereof) or any of Canada's federal or provincial human rights legislation, they do (as do all residents of the US) have the benefit of the the Americans With Disabilities Act (“ADA”).

The ADA is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services...

To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

Sound familiar?

However, unlike Canadians, Americans also have the benefit of the US' Equal Employment Opportunity Commission ("the EEOC"). the organization that enforces the ADA in the employment context; meaning you bring your employment complaint to them and, if they think it is justified, they will sue the employer on your behalf. Making them, kind of, sort of like a human rights commission solely for employment issues.

At any rate, thanks to the fine work of the EEOC, Papa John's has not only 'agreed' to pay that employee damages in the amount of $125,000, but also to “review its equal employment opportunity policies, conduct training for management and human resources employees for its restaurants in Utah, and establish a new recruitment program for individuals with disabilities in Utah.”

The take-away(s) of the story for Papa John's (and all Canadian and American employers) is that

• employers must provide "reasonable accommodations" to persons with disabilities and "engage in an interactive process to determine if an accommodation is reasonable yet not burdensome"; and
• a long-term "independently employed and insured job coach" might just be a "reasonable accommodation" for a person with an intellectual disability.

Or, to put it another way, what he said:

“Employers must understand that they cannot refuse to provide an accommodation to individuals with intellectual disabilities. … Employers should embrace workers like Scott who work with such joy. I want employers to know that their obligation to provide a reasonable accommodation includes allowing a job coach at the workplace, if needed, absent undue hardship.”

* Which subject (that being "an independently employed and insured job coach to assist him") could be the subject of a blawg post all by itself, says she, as she continues to toil away at accessing funding for just such a beast for her own daughter.

To Disclose or Not Disclose - Human Rights in the Workplace

I recently listened to an audiotape of a panel presentation entitled "Learning to Accommodate: A Step-By-Step Guide to Accommodating Employees with Learning and Intellectual Disabilities".

All in all, it was good and useful presentation - the Panel consisted of a former member of the CACL, a psychologist who specialized in learning disabilities, a law professor who specialized in labour and human rights issues and two lawyers - one who worked mostly for employers and one whom brought forward court cases on behalf of employees.

They did their best to represent all sides of the issue ... or should I say issues, given that it dealt with both employees with intellectual challenges and those with learning disabilities, two very different situations.

I have posted a couple of times on the issue of human rights in the workplace back in 2008 - 2009, but we haven't looked at the issue since. Before we go on, you might want to go back and read those old posts, just to give you a sense of how the human rights issue are dealt with in an employment context.

The one thing that struck me about this recent prensentation and that I wanted to share with you is the issue of whether an employee is obligated to disclose their disability to an employer, either in the hiring process or as a hired employee. I don't believe I touched on this issue back in 2008-2009 and that's too bad because it really is a very important dilemna that many employees and job-seekers face.

As we discussed previously, pursuant to both the Nova Scotia Human Rights Act and the Canadian Human Rights Act, employers are obligated to "accommodate" an employee with a disability. You can read more of exactly what this duty of accommodation requires an employer to do (and not to) here.* But the question for us today is this: How can an employer be expected to accommodate an employee if it is kept in the dark as to the employee's disabilities?

Sure, some disabilities are obvious to the naked eye but many are invisible. And even in those situations where the disability (and accommodations required) are obvious, can we automatically assume that means that all of the employee's needs will always be completely obvious?

In the situation in this video, the employer's discriminaiton is pretty blatant. The woman is in a wheelchair. The drafting table and the material on the shelves are too high for her to reach. It isn't rocket science (or, at least, it shouldn't be). But what if a physically challenged employee is also dealing with other issues that are not so obvious, such as fatigue or depression that effect their employment needs?

The bottom line is this: How can an employer legitimately be expected (and legally required) to accommodate disabilities of which it is unaware?

An employer has a has a duty to investigate the availability of accommodation options only IF it knows or should know of the person's disability and the need for accommodation. If the employer is legitimately unaware of the disability, there simply is no duty to accommodate, although one might arise later IF the disability comes to the employer's attention.

The case law is replete with instances of failed human rights claims where the employer never disclosed any information that would lead the employer to think they had a disability; often, even in cases, where the employer noted difficulties and went out of its way to enquire what it could do or offer the employee to help them meet the demands of the job.

And, really, can we honestly say that it should be any other way? You simply can't be expected (or obligated) to accommodate a disability you are totally unaware of. That is only fair.

I do realize that for many individuals with disabilities the decision as to whether or not to disclose a disability (and the accommodations required) to an employer or potential employer is a very difficult one. There are many factors to consider.

Stuttering as a Disability

UPDATE: Apparently we now have some US lawyers agreeing that yes, yes indeed, stuttering can indeed be a disability under the terms of the American with Disabilities Act (ADA). Good to know. 

What says you? Is stuttering a disability? And, if so, should it be "legally protected"?

It seems to me that this should have a fairly easy common sense answer. And if it doesn't, it should.

Of course, stuttering is a disability from a legal point of view.

Section 10 (1) of the Code defines “disability” as follows:
“because of disability” means for the reason that the person has or has had, or is believed to have or have had,

1. any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

But I think worrying about a potential "widespread backlash against all persons with disabilities" is a bit of fear mongering an over-reaction. Why?

All you need do is check out the comments at the end of the article to find a very common sense response.

Of course it's a disability, but not one that should ever override a common sense BFOQ. [Ed. I believe that is meant to read BFOR - "bona fide occupational requirement" **.] But if a person is denied a position they could handle because a stutter "isn't pretty" then that's discrimination. 

** We've discussed this very same issue many years ago and although I didn't use the commonly-accepted terminology at the time, this is exactly what I was talking about. 

Duty to accommodate meet bona fide occupational requirements.

The duty to accommodate can include things like altering the physical workplace, redefining a job description or altering the work schedule. If a driver's license is a job requirement, for example, and the interviewee doesn't have one, there is a duty on the employer to enquire why, to see if a disability is behind it ie) epilepsy. In which case the employer would have to consider what alternations he might make so that driving would not be necessary or whether he could change the job description to give the driving portion to another employee.

And it's important to realize that it would be a lot harder to accommodate certain disabilities in some jobs than in others. For example, is it possible to accommodate a blind person who seeks to be an editor? In all honesty, even with technology, I don't know. Maybe it is, maybe it isn't.

What about a person in a wheelchair, with no use of her arms or legs, who dreams of being a firefigher? There might be some job back at the fire station that she could conceivably perform but it would be a little hard to picture her actually out there fighting a fire, wouldn't it?

Press Release - 2011 Federal Budget Recognizes More Needed for People with Disabilities and Families

FOR IMMEDIATE RELEASE

June 6, 2011, Toronto – ON. The Federal Budget tabled today before the House of Commons recognizes that more needs to be done to support people with disabilities and their families. CACL’s President Bendina Miller welcomed the budget measures and expressed: “Today’s budget takes modest steps to address the needs of people with disabilities and their families. It recognizes that: families and caregivers are at the core of supports to persons with disabilities and that more needs to be done to support them in this role; improvements are needed to the RDSP to ensure people with intellectual disabilities are able to enjoy equal benefit of the savings mechanism without jeopardizing their legal capacity; and, that new investments are needed to address the long-standing exclusion of people with intellectual disabilities from the labour market.”

CACL is encouraged by the inclusion of disability issues in this Federal Budget and is hopeful these new investments are first steps in developing a more comprehensive national disability strategy. In particular, the Federal Budget commits to:

• Enhanced support for families and caregivers through:

o a new Family Caregiver Tax Credit, a 15-per-cent non-refundable credit on  an amount of $2,000
o removing the limit on the amount of eligible expenses that caregivers can claim under the MedicalExpense Tax Credit
o a Children’s Arts Tax credit – with an enhanced component for children eligible for the Disability Tax Credit.

• Improving Labour Market Outcomes

o A $3billion investment over 6 years for new Labour Market Agreements to address gaps and improve labour market outcomes for under-represented groups.

• Improving the Registered Disability Savings Plan (RDSP) by:

o Increasing withdrawal flexibility for those with shortened life expectancies.
o Conducting a 3-year review to address issues raised by Canadians with disabilities and their families including a specific recognition of contract/legal capacity issues some adults with disabilities have encountered in trying to open and manage a RDSP.

“Employment is a major issue for people with intellectual disabilities. Something isn’t right when employment rates for working-age adults with intellectual disabilities are one-third of the employment rate of people without disabilities and when the average income for working age adults with intellectual disabilities who are working is less than half of that of Canadians without a disability. Canada needs to take a serious look at how to improve inclusive labour market outcomes for people with intellectual disabilities. This Budget is one step in that direction.” said CACL Executive Vice President, Michael Bach. “CACL looks forward to working in partnership with the Government of Canada in realizing these new investments and identifying the next steps to build strategically on these investments.”

About the Canadian Association for Community Living

The Canadian Association for Community Living is a Canada-wide association of family members and others working to advance the human rights and inclusion of persons of all ages who have an intellectual disability. CACL’s federation is comprised of 10 provincial and three territorial associations, 420 local associations and over 40,000 members.

For more information, please contact:
Michael Bach, Executive Vice-President, 416.209.7942, mbach@cacl.ca

Anna MacQuarrie
Director, Policy and Programs
Canadian Association for Community Living
Kinsmen Building, York University
4700 Keele Street
Toronto, ON M3J 1P3

Tel: 416-661-9611 ext 204
Fax: 416-661-5701
amacquarrie@cacl.ca
www.cacl.ca

A Good First Step

How on earth did we ever miss this?

Maybe because we're too busy whining about what he can't get right? Or maybe it just isn't considered newsworthy...

Either way, it's something that should be recognized. And acknowledged.

Yes, I realize it's only a step. But a first step is better than no step, no?

And then we might just ask when a similar move might be made in Canada.

The Law on Human Rights and Employment in Nova Scotia: Part II

It's only been six months since I promised a Part II to The Law on Human Rights and Employment post. But it's not like anyone is actually keeping track, right?

Anyway, let's dust off that old post and continue our discussion about human rights in the employment context.

Keeping in mind that we are discussing only the Nova Scotia process. Each province has it's own human rights legislation and there is also a Canadian Human Rights Act which would govern employers in those businesses which have been found to come under federal jurisdiction. And although the basics are the same, the legislation will differ a bit in each jurisdiction.

We already know that in order to claim discrimination under Nova Scotia's Human Rights Act, it is necessary to bring yourself within one of the enumerated grounds under the Act, which we looked at here.

"Discrimination" is defined in sec. 4 of the Act as

... [making] a distinction, whether intentional or not, based on a characteristic, or perceived characteristic ... that has the effect of imposing burdens, obligations or disadvantages on an individual or a class of individuals not imposed on others which withholds or limits access to opportunities, benefits and advantages available to other individuals or classes of individuals in society.

There is a duty on an employer not to discriminate against an employee or potential employee right from the beginning. Thus, for example, there is an onus on the employer to make sure that a job interview is held in an accessible place ie) wheelchair accessible, if necessary.

If a person can show that disability was even one factor that played a small role in the decision not to offer employment or to terminate a person's employment, that person (referred to as "the claimant") will have met the burden of what we legal types like to call a prima facie case .

READ MORE

The Law on Human Rights and Employment in Nova Scotia: Part I

I really enjoyed Andy Montgomery's presentation on Human Rights and Employment law at the recent Tools For Life Conference. Mr. Montgomery is a lawyer at Taylor MacLellan in Kentville and gave an interesting and useful presentation. Which, admittedly, taught even me a thing or two.

It also made me realize that other than noting the new limitation period in bringing claims under the Human Rights Act and an interesting human rights complaint underway in the Province, we haven't really much discussed the protection that the Human Rights Act offers individuals with disabilities in Nova Scotia.

Made me think that it was about time to remedy that. But before getting into the nuts and bolts of employment discrimination, I thought we would discuss a few ancillary, but nonetheless important, points.

A few background facts to ponder:

• As of 2001. 20% of Nova Scotians considered themselves to have a disability while only 14/5% of Canadians nationally considered themselves disabled


• In 2004, 60% of persons with disabilities (87,310) in Nova Scotia were 15-64 years old


• In 2004, the average income of Nova Scotians (aged 15-64) with disabilities was only $18,160.
  

Were you aware that in Nova Scotia, employed people with disabilities reported that

• 25% were refused employment


• 22% were dismissed from their employment and


• 17% were refused promotion

Moving on to the Human Rights Act itself, one point that Mr. Montgomery made which I thought was a particularly good one is that not all discrimination is protected under the Act.

The Act only protects against discrimination on the basis of

• age;
• race;
• colour;
• religion;
• creed;
• sex
• sexual orientation;
• physical disability or mental disability;
• an irrational fear of contracting an illness or disease;
• ethnic, national or aboriginal origin;
• family status;
• marital status;
• source of income;
• political belief, affiliation or activity;
• that individuals association with another individual or class of individuals having characteristics referred to above.

Thus, it is perfectly acceptable under the Human Rights Act to discriminate against an individual because they are a stamp collector or a fire fighter, for example. It is important to remember that in order have a valid complaint under the Act you must have been discriminated against on the basis of one of the characteristics set out above.

And again, in terms of bringing yourself within the protection of the Act, the term "physical disability or mental disability" is defined in sec. 3 of the Act as

an actual or perceived
(i) loss or abnormality of psychological, physiological or anatomical structure or function,
(ii) restriction or lack of ability to perform an activity,
(iii) physical disability, infirmity, malformation or disfigurement, including, but not limited to, epilepsy and any degree of paralysis, amputation, lack of physical co-ordination, deafness, hardness of hearing or hearing impediment, blindness or visual impediment, speech impairment or impediment or reliance on a hearing-ear dog, a guide dog, a wheelchair or a remedial appliance or device,
(iv) learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(v) condition of being mentally handicapped or impaired,
(vi) mental disorder, or
(vii) previous dependency on drugs or alcohol

In the next post, we will look at an employer's "duty to accommodate" an employee or potential employee who fits within the above definition of having a "physical or mental disability" as set out in the Act.

'Sorry, You're A Liability' ... Important Human Rights Issue

Apparently some businesses in this great Province of ours are advising individuals with special needs and their families that their services as employees are not welcome. Wait, let me rephrase that, of course they would be welcome as employees ... provided they provide their own insurance coverage.

Sound strange?

A family in Pictou County has brought a complaint to the Human Rights Commission concerning the actions of two business, Sobeys and Blockbusters. According to the family they were advised by both of these fine corporate citizens that their son would have to provide his own insurance coverage if he wished to work in one of their stores. Without such additional insurance, he was considered a 'liability'. And as a side note, according to the family who, in good faith, made their best efforts to secure such coverage, such insurance doesn't even exist.

The Nova Scotia Human Rights Act prohibits discrimination in respect of employment on the basis of, among other things, physical or mental disability. The Commission will first work to see if some sort of mediated agreement or settlement can be reached between the parties. Failing that, a decision will be made as to whether to forward the complaint to a Board of Inquiry for a hearing.

I must admit that part of me fervently hopes that somehow this family was mistaken, that, as unlikely as it is, they misunderstood the comments of store employees to their enquiries. Not that I really believe that; it's just something I would like to wish to be true. As a lawyer, its very disquieting to think that such practices may be going on in Nova Scotia and, as a parent, it is sickening to consider the possibility.

At any rate, it's certainly an issue to keep an eye on.

I will update you on the complaint as more information becomes available. And if, by chance, your family or someone you know has experienced a similar situation, whether with these employers or others, I would strongly urge you to bring that information forward to the Human Rights Commission. If, indeed, this type of discrimination is being practiced in the Province, it's time to bring it to the light of day and put an immediate end to it.

Such discrimination, if it is occurring, might help to explain statistics like these. (Found on p. 8 of the link)