Duty to accommodate (2012 08) - ohrc - cmha opening doors facilitator training
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Duty to accommodate (2012 08) - ohrc - cmha opening doors facilitator training
- 1. August 2, 2012 1 The Duty to Accommodate
- 2. 2 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Accommodation Principles Respect for dignity Treat people as individuals Right to integration and full participation These guide both procedural and substantive accommodation
- 3. 3 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Achieving Integration Inclusive design Barrier removal Accommodate remaining needs
- 4. 4 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Accommodation Accommodation often occurs based on the following Code grounds: Disability Sex (including pregnancy) Gender identity & gender expression Creed Family status Age
- 5. 5 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Question What rules, requirements, policies or standards exist that may seem neutral, but have an adverse impact or disadvantage people with mental health disabilities or addictions? On people based on other Code grounds?
- 6. 6 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Bona Fide Requirements (s. 11) Standard, rule, requirement or factor: Purpose rationally connected to function? Adopted in good faith? Reasonably necessary in the sense that it is impossible to accommodate without undue hardship?
- 7. 7 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Appropriate Accommodation Separate from undue hardship analysis Continuum Promotes three principles Equal opportunity to attain same level of performance or enjoy same level of benefits and privileges Proposed or adopted for purpose of achieving equal opportunity
- 8. 8 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Accommodation Seeker Inform the accommodation provider of their needs Co-operate in obtaining necessary information Participate in discussions about solutions Work with the other parties on an ongoing basis to manage the process
- 9. 9 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Accommodation Providers Accept accommodation requests in good faith Request only information required to make accommodation Obtain expert advice where necessary Bear the cost of any required medical information or documentation
- 10. 10 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Accommodation Providers Maintain confidentiality of persons seeking accommodation Take an active role in ensuring possible solutions are examined Deal with accommodation requests in a timely way
- 11. 11 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Limits of Accommodation Accommodation need not be provided if it causes “undue hardship” Standard for undue hardship is a high one Onus of proof is on the accommodation provider
- 12. 12 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Limits of Accommodation FACTORS NOT CONSIDERED Business inconvenience Resentment or hostility from co- workers Operation of collective agreements Customer “preferences”
- 13. 13 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Limits of Accommodation FACTORS CONSIDERED Costs Outside sources of funding Health and Safety
- 14. 14 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Costs Quantifiable Related to the accommodation Look at whole organization, not just branch/unit Altering the essential nature or affecting viability of business
- 15. 15 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Minimizing Costs Recover/distribute costs Immediate versus phased-in Reserve funds Outside sources of funding Creative design solutions
- 16. 16 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Health and Safety Requirements bona fide and reasonable Look at alternate means of accommodation to avoid risk Assess nature/severity/probability/scope of risk Risk assessed after precautions have been taken to reduce it Does risk remaining after accommodation outweigh benefits of enhancing equality?
- 17. 17 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Assessing Risk Nature of risk (what could happen that would be harmful?) Severity of risk (how serious would the harm be if it occurred?) Probability of risk (how likely is it that the potential harm will actually occur?) Real risk, or merely hypothetical or speculative? could it occur frequently? Scope of risk (who will be affected by the event if it occurs?)
- 18. 18 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Assumption of Risk An accommodation seeker may wish to take on some degree of risk: Is person fully informed of risk? How serious is the risk? Is there a risk to anyone else?
- 19. 19 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Question What are forms of accommodation that might be relevant to someone with a mental health issue in: Employment Housing Services? What are forms of accommodation based on other Code grounds?
- 20. 20 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Types of Accommodation: Employment Modified facilities Modified job duties Flexible policies, procedures Technical or human support Time off Alternate formats Alternate methods of assessment
- 21. 21 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Types of Accommodation: Housing Modified units, common elements Flexible policies, procedures Considering alternative rental criteria Third-party support Alternate formats of communication Taking disability into account as a mitigating factor
- 22. 22 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Types of Accommodation: Services Flexible deadlines, or extra time given Quiet service environment Human support Multiple ways of contacting the organization Facilitating or providing support for decision-making Accessible forms and application procedures Flexibility in scheduling appointments Considering disability as a mitigating factor
- 23. August 2, 2012 23 BREAK
- 24. August 2, 2012 24 Scenarios
- 25. 25 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Scenarios Ground Social Area Discriminatory effect? Issues, principles, considerations Problems, or anything else you need to know in order to assess? What could be done, or should have been done differently?
- 26. 26 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Scenario #1 A person with a mental health disability asks her landlord for an accommodation. The landlord tells her that before he can accommodate her, he requires that she give him her medical diagnosis.
- 27. 27 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Scenario #2 A newly hired employee discloses that he has bipolar disorder and asks his employer to call his wife and doctor if they notice anything unusual in his behaviour. He also states that he may need to take a few days off if this happens. His employer is concerned that he did not tell them this when he applied. A few days later, the employee starts exhibiting strange behaviour, and the company dismisses him on the basis that his high security position requires someone who can handle stress, and is stable and available.
- 28. 28 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Scenario #3 A person who is a newcomer to Canada gets taken to a mental health hospital by police. He does not speak English and requests a language interpreter. The hospital has a policy only to provide services in English and French. ASL interpreters are provided if needed for someone’s disability. As a result, the doctor does an assessment without an interpreter present.
- 29. 29 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Scenario #4 A person with a mental health disability applies for work using a supported employment agency. The supported employment agency tells her that she is not ready for employment because she has recently been released from hospital, and does not recommend her for a position.
- 30. 30 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Scenario #5 A woman with schizophrenia shows erratic behaviour in her apartment, such as yelling in the night, putting her TV out in the hallway, and leaving papers on the stove burners. The landlord, concerned about health and safety, evicts her for disturbing the “reasonable enjoyment of the premises” of other tenants.
- 31. 31 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Scenario #6 After a few weeks of being on a job placed by a supported employment agency, the employer tells the agency that “it’s not working out” because the employee with a mental health issue needs more time than other workers to learn the position. The supported employment agency depends on good relationships with its employers. They agree to place the person somewhere else.
- 32. 32 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Scenario #7 A man who identifies as Muslim is in a forensic mental health facility. He shares a room and eats his meals with other patients. Due to his religious requirements, he requests halal meals and that he be given a private space to pray several times a day. Because of the side effects of his medication, he also has difficulty eating his whole meal in the time given to patients at meal times (all meals are supervised by staff). Because of this, he is losing weight. The hospital denies the requests for a special diet and a place to pray because they lack available staff to respond to individualized meal requests, and they don’t have extra space in the facility. They say that special requests are often difficult to agree to because they lack staff to provide the extra supervision that may be required due to possible health and safety concerns.
- 33. 33 Ontario Human Rights Commission Commission ontarienne des droits de la personne Opening Doors August 2 & 3, 2012 Scenario #8 An addictions counselor’s coworkers start to notice that she comes to work visibly under the influence of alcohol. The employee starts cancelling her counseling appointments unexpectedly. Shortly thereafter, the manager confronts the employee, who denies that she is using alcohol. The employer terminates the employee’s job, stating she is a health and safety risk to her clients and cannot perform the essential duties of her position.
- 34. August 2, 2012 34 Questions?
Notas del editor
- Please feel free to ask questions during the presentation. I have an hour of speaking, and then we have a little less than an hour to go through some scenarios. But we have lots of time for discussion at the end. What do we mean by the “duty to accommodate”? Right. There’s this idea of equality, or “formal equality”, which means treating everyone the same. When we look at other human rights issues, this makes sense – we may compare how racialized employees are treated in a workplace compared to White employees. If there is different treatment, this could be discrimination. However, treating everyone the same doesn’t always result in true equality, or “substantive equality”. Treating people exactly the same will not result in real equality for people from historically disadvantaged groups. Because society is not designed with the needs of everyone in mind, there is an obligation to provide different treatment in some cases so everyone has equal opportunity. The Supreme Court has recognized this – noting the need to “fine-tune” society so that structures and assumptions do not exclude persons with disabilities from participation in society. It has said that standards should be designed to reflect all members of society, insofar as this is reasonably possible (Eaton & Meiorin). This means changing rules, policies, practices, standards, facilities to allow people to participate equally and gain equal opportunities if they are prevented from doing so because of their association with a Code ground.
- Under the Code, organizations have the obligation to accommodate people with Code-related needs to the point of undue hardship. Principles of accommodation: There are three central principles involved with accommodation. These principles guide both the substantive accommodation – what the person gets in the end, and the process by which accommodation is achieved. The importance of Respect for the dignity . Accommodation must be provided in a manner that most respects the dignity of persons seeking accommodation, if to do so does not create undue hardship. This applies both to the accommodation that is provided, and to the process by which an accommodation is developed and implemented. Broad def’n: self-respect, privacy, confidentiality, comfort, autonomy, individuality. Secondly, accommodation is about putting people first. Accommodation is always about individuals . Each person’s request must be considered, assessed, and accommodated individually. This means, for example, that individualized testing is preferable to blanket rules. Full integration and participation: Persons seeking accommodation should be able to access their environment and face the same duties and responsibilities as everyone else, with dignity, and without impediment. This shifts the focus on to the responsibility of society to prevent and remove barriers for persons protected by the Code. Procedural & Substantive accommodation: The importance of the process of accommodation is just as important as the outcome. Many human rights cases have turned on whether or not the organizations did all that they could to accommodate the individual, even if they were unable to grant the accommodation at the end of the day, and organizations have been held liable for breaching the duty to accommodate. (Lane)
- This a continuum of inclusion The principle of full integration and participation means that employers, landlords and service providers have a duty to design inclusively. In a service context this means that whenever facilities, policies, procedures or standards are being developed, they should be designed to be as inclusive as possible. Of course, there will be many situations where facilities, procedures or policies that are already in place pose barriers for persons with disabilities. In these situations, the preferred approach is to identify and remove the barrier, unless to do so would cause undue hardship. This is preferable to simply making a one-off accommodation for a single person with a disability. The AODA customer service standards are examples of policies that ensure wide-scale barrier removal. Where needs remain after inclusive design and barrier removal have been explored, the needs must be accommodated through special arrangements. This applies up to the point of undue hardship.
- People can receive accommodation based on any Code ground, depending on the circumstances and the person’s individual needs. However, it is most common that people receive accommodation based on the following Code grounds. The same accommodation principles would apply to all Code grounds
- Are there any rules or standards or practices or requirements that you have identified that may be problematic for people with mental health disabilities or addictions? What about other Code grounds? E.g. Family doctor funding models that offer indirect incentives for choosing patients that don’t take a lot of time to deal with their concerns. This is having the effect that older people, people with intellectual and mental health disabilities are being turned away from primary care because their needs are seen as too complex. E.g. Another example was reporting requirements under the Social Housing Reform Act, which gave people only a few days to report a change in income to their social housing provider. This meant that people with intellectual and mental health disabilities were having a rough time meeting the requirements, which put their housing in jeopardy.
- Pick one of the examples and go through it. Where there are standards or rules or policies, procedures, decision-making practices, that create disadvantage for people with disabilities, this is considered to be prima facie discrimination. These are generally unintentional, and are usually embedded in the way an organization does things. When there is a case of prima facie discrimination, it is now up to the organization to demonstrate that their standard is justified, legitimate, or what we call bona fide – (1)(2) and (3). If they can, then this can defend against discrimination 1) – rationally connected – for example, is the standard rationally connected to what is being performed? 2) adopted in good faith – was it imposed honestly, and not for the purpose of excluding or discriminating against certain groups? 3) finally, is it possible to accommodate the person without incurring UDH? Is modifying or waiving the standard possible? This is based on the Supreme Court Case of Meiorin, in which a female firefighter lost her job because of a newly imposed aerobic standard, which the government said was necessary to do the job. She said it was discriminatory against women. This is called the Meiorin test. The Supreme court found that the standard passed the first two parts of the test, but failed the third one, because the standard was found not be to be “reasonably necessary”. The supreme court said that standards themselves must be inclusive and accommodate individual differences. It is relevant if an organization has identified how it accommodated (procedural duty to accommodate), if differing standards are applicable, if a standard can be waived or modified to allow for inclusion, or if there are viable alternatives to the standard proposed.
- Do this analysis before getting into undue hardship. Full accommodation – phased-in – interim accommodation - alternative accommodation Emphasis equal opportunity. Accommodation does not entitle you to excessive rights. Appropriate accommodation is different depending on the situation and context Example: wheelchair ramp at the back of a clinic
- There are roles for both accommodation seeker and accommodation provider: Note that pwd are not required to provide detailed information about the nature of their disabilities. They are required to disclose that they have a disability, and provide information about their limitations and the nature of their needs. In some cases, it may be necessary to obtain more detailed expert or medical opinions, in order to facilitate the accommodation. In these cases, accommodation seekers have a responsibility to co-operate with this process. The Policy also recognizes that accommodation is often not a one-time or static result. Needs may change over time, or the initial accommodation may not work out as well as hoped. All parties must work to manage the ongoing accommodation process. Working with others may also be necessary. In addition, in some cases, it may be difficult for some people to identify if they need accommodation – for example, people with mental health issues or addictions. Even where an accommodation need is suspected or known, and where the person is clearly unwell, this still triggers the duty to accommodate Accommodation is often not a one-time activity. Needs may change over time, or the initial accommodation may not work out as well as hoped. All parties must work together to manage the ongoing accommodation process.
- Accommodation providers should not second-guess accommodation requests, unless they have a reasonable and bona fide reason for doing so. Again, a medical diagnosis of the person’s condition will usually not be relevant to planning accommodation. The key issue is how a disability affects an individual’s ability to fulfill their role as a service recipient/as a tenant/as an employee Organizations may find it necessary to require medical or other professional verification of limitations in order to support the accommodation request. If the organization is making this type of request, it should cover any associated costs.
- Confidentiality is an important consideration in the accommodation process. Documentation supporting the need for a particular accommodation should only be provided to those who need to be aware of the information. In some cases, the accommodation required may be obvious, or the person seeking accommodation may know precisely what it is that is needed. If not, the accommodation provider needs to take an active role in ensuring that possible solutions are examined. And of course, accommodation requests must always be dealt with in a timely way. These requests must be taken seriously. Where accommodation requests have been not dealt with over a period of time, these have been taken to the Tribunal.
- There are some limits to the duty to accommodate. Under the Code , accommodation need only be offered to the point of “undue hardship”. the standard for undue hardship is a high one. Undue hardship vs. reasonable accommodation The idea is that some degree of hardship acceptable – it’s only when hardship is “undue” that it can become a defence to not accommodate The onus is on the person who is claiming undue hardship to bring forward objective facts and figures to demonstrate this.
- It is the Commission’s longstanding position that only factors that can be brought within these three things will be considered. These are the factors listed in the Code . They are the only factors considered under the Policy . First two are really components of the same thing.
- costs can’t be speculative. Can include capital costs, operating costs, restructuring, or anything else that can be quantified. That is, the “that will bankrupt us!” without anything more, won’t wash. Look at whole organization, not just the division or branch. – What might amount to undue hardship in terms of cost for a small housing operation will not likely be one for a larger organization
- In terms of assessing whether costs would alter essential nature or affect viability, look at these factors … Can it be phased in? Are there grants, subsidies, or loans available from government or non-government sources to offset the costs of the accommodation? Are there creative design solutions that don’t cost a lot? Most accommodations are not that expensive to make. Now there are reports that identify how costs can be recovered over the long term by making services accessible to people with disabilities. Service providers, housing providers and employers that receive government funding may say that they have limited budgets that prevent them from accommodating. However, organizations cannot use limited resources as a defense without first meeting the formal test of the duty to accommodate based on costs. Budgetary constraints should not dictate which accommodations are most appropriate for service providers/tenants/or employees. Accommodation process is a matter of degree. At the same time, where costs are prohibitive, the OHRC recommends where organizations receive funding from the government for promoting accessibility, the housing provider should track accommodation data and alert the government to any funding deficiencies that exist Governments could also be named as respondents in human rights complaints if they fail to provide sufficient funds or allow an organization to meet its duty to accommodate (autism cases) The remaining cost after these factors have been taken into account is what will be used to determine undue hardship.
- Risks to health and safety, if serious enough, may constitute undue hardship. However, assessments of risk must be based on objective evidence and should not be speculative. They must be made based on a person's individualized circumstances As with costs, should be objective basis - not speculation consider other risks assumed within the company as a comparator Risk created by modifying or waiving a health and safety requirement is to be weighed against the right to equality of the person with a disability (this applies to risks that people can choose to take themselves in order to modify a requirement) -
- Risks to health and safety, if serious enough, may constitute undue hardship. However, assessments of risk must be based on objective evidence and should not be speculative. They must be made based on a person's individualized circumstances. The accommodation provider should analyze the risk based on the following factors: the nature of the risk (what could happen that would be harmful?) the severity of the risk (how serious would the harm be if it occurred?) the probability of the risk (how likely is it that the potential harm will actually occur?) is it a real risk, or merely hypothetical or speculative? could it occur frequently? the scope of the risk (who will be affected by the event if it occurs?) Unless the risk is imminent, the accommodation provider must take steps to minimize the risk as part of their duty to accommodate. Only the risk that remains after the organization has taken steps to minimize the risk (including precautions and accommodations) can be considered when assessing undue hardship.
- Test – Where possible, persons with disabilities should be allowed to assume risk with dignity, subject to the undue hardship standard. E.g. we’ve heard of cases where construction workers are allowed to take on the risk of wearing turbans instead of hard hats. (E.g. in wheelchair basketball case) At the same time, the organization has an obligation under H&S legislation not to place individuals in a situation of direct threat of harm. High probability of substantial risk to anyone will constitute an undue hardship.
- Test – Where possible, persons with disabilities should be allowed to assume risk with dignity, subject to the undue hardship standard. E.g. we’ve heard of cases where construction workers are allowed to take on the risk of wearing turbans instead of hard hats. (E.g. in wheelchair basketball case) At the same time, the organization has an obligation under H&S legislation not to place individuals in a situation of direct threat of harm. High probability of substantial risk to anyone will constitute an undue hardship.
- Test – Where possible, persons with disabilities should be allowed to assume risk with dignity, subject to the undue hardship standard. E.g. we’ve heard of cases where construction workers are allowed to take on the risk of wearing turbans instead of hard hats. (E.g. in wheelchair basketball case) At the same time, the organization has an obligation under H&S legislation not to place individuals in a situation of direct threat of harm. High probability of substantial risk to anyone will constitute an undue hardship.
- Check time, decide how to do exercise – split into small groups These scenarios vary a bit, some focus more on what happened and whether it was discriminatory, and some focus on exploring issues and possibilities for preventing or problems. Give them 5 minutes to discuss each in groups of 2 (4 scenarios each), then see where they’re at. Do the first one together. Circulate around the room. Ground Social Area Discriminatory effect? Issues, Principles, Considerations Problems, or anything else you need to know in order to assess? What could be done, or should have been done differently?
- Ground: disability Social area: housing Discriminatory effect: not quite there yet…need more info Considerations: Landlord needs as much information as is necessary to accommodate someone’s disability. In most case, a diagnosis is not needed. E.g. if a landlord knows someone has schizophrenia, what does that mean for the landlord, exactly? What matters is the person’s ability to function in the environment, their limitations and needs Must take accommodation requests in good faith, unless there is an objective reason to require further information Information requested should not be a bar to accommodation – in many cases, people with mental health issues can’t get proper medical documentation anyway, due to the unavailability of psychiatrists or other medical personnel. If the landlord really needs information to be verified (e.g. they need specific info about limitations, etc), then other types of information may also be useful – e.g. from social worker, community, individual
- Ground: disability Social area: Employment Discriminatory effect: lack of accommodation, direct discrimination In this case, which is based on the “Lane case”, the employer clearly knew that the employee had a disability. After this happened, the employee had a severe episode, which resulted in hospitalization Employer does not have the right to know diagnosis – although this was volunteered in this case, the employer only needs to know what is relevant to meet the accommodation request Had an obligation to take the accommodation request in good faith, had means to do so Employers decision based on stereotypes Employers should not ‘second guess’ whether or not someone has a mental health disability Stigma prevents people from disclosing accommodation requests at the interview process – in fact, to do so, and then the if the person does not receive the job, it could give rise to a human rights application Is being stable, handling stress, and being available – are these BFR’s for his position? If this is true, the company would have to demonstrate that these are rationally connected to the position, were established in good faith, and that accommodation without undue hardship is impossible Ideas about what could or should have been done differently Grant accommodation request – set up formal accommodation plan with the employee. He was well aware of his triggers Establish an accommodation policy If there are BFRs in jobs that are recognized – break the duties of the job into essential and non-essential duties. The OHRC has a position on medical testing – it is not advised until after a conditional job offer is made. If there is a bona fide requirement for someone to be in particular physical or psychological health, someone could be asked to attend a physician and identify if they can meet the requirements of the position. This happens in circumstances in security positions like policing However, OHRC generally cautions against psychological testing for positions – not reliable predictors* \ Requires individual assessment – what kind of stability is needed for this position? Why is it necessary? What risk could occur?
- Ground: not clear Social area: services Discriminatory effect: if no ground, it’s not clear It’s not clear. Language is not a Code ground, but can be an indicator of someone’s ethnic origin or place of origin. However, official policies are that interpretation is only offered in French (under the French Services Act), or to accommodate someone’s disability. There has not been a lot of supportive legal cases that say that a service must offer language interpretation in languages other than English or French. This is because language is not seen as an immutable characteristic, and people often learn other languages. The case law is unclear on these points. In some cases, people may have access to language interpretation at tribunals. People’s rights to a fair hearing are protected by having language interpretation in court. To establish that people require language interpretation as part of their rights to accommodation, a person might have to establish that lack of language is integrally connected to their place of origin, ethnic origin, or disability. For example, someone who has a disability like autism, and is a newcomer, may be prevented by their disability from learning a second language. This might help in making a case that being denied interpretation is a violation of their human rights. At any rate, many hospitals and services recognize that to provide decent service to a range of clients, particularly when making medical decisions, they must provide interpretation to people. Interpretation is now being seen as a “best practice”. For example, Mt. Sinai hospital has written a guide on serving newcomers with mental health issues, and a key piece of this is offering interpretation. Also, with services like AT&T, it may not be difficult to provide interpretation services.
- Ground: disability Social Area: employment or services Discriminatory effect: direct discrimination, failure to accommodate A person with a disability cannot be told that they cannot fulfill the requirements of a function unless they have been individually assess and accommodated to the point of undue hardship What evidence was the person using to determine that they could not work? Was it based on skills, abilities, that were objective, or assumptions? What does job-readiness mean? Even if the person required more “readiness”, e.g., coaching, training, etc. could this have been accommodated to the point of undue hardship? Could the agency have worked with the employer to accommodate the employee? Could the employee be tested on their skills, abilities and ability to be at work prior to sending them to the field? There may be some legitimate reasons that cannot be accommodated why someone cannot be placed in a position; however, attempts must first be made to accommodate the person.
- Ground: disability Social area: housing Discriminatory effect: lack of accommodation Walmer developments vs. Wolch – the landlord was supposed to have accommodated the person’s mental health issue, and not just assume that she interfered with the reasonable enjoyment of the premises by other tenants. The landlord tenant board upheld the eviction, and it went to a higher court. The higher court said that the landlord and tenant board made a mistake by not considering this persons’ circumstances under the human rights code, and said that the LTB should have asked the landlord if there were ways to accommodate her. For example, could the landlord have called the person’s family to assist. Could be an example of a competing right – right to accommodate under the Code, but also a legal right to enjoy one’s premises. In these cases, the housing provider is expected to listen to both parties and come up with solutions that will work for everyone. Sometimes, people will be expected to assist with accommdoation of other people on an ongoing basis.
- Ground: creed, disability Social area: services Discriminatory effect : failure to accommodate Issues for consideration: How difficult could it be to have staff prepare a different meal? A separate space to pray – does it need staff supervision? If health and safety needs are paramount, could they rearrange staff to do this? Could they contract staff out if they need more staff? Could they ask the government for more staffing? Even though there is not a space to pray right now, could they do an interim accommodation within the person’s room, where the other person leaves for a period of time? Considerations – dignity, responding to individualized need, full inclusion A more inclusive approach is establishing a room of reflection where people of all creeds can go to worship or reflect. This might be a longer-term solution. What health and safety risks are present? Are they real risks, speculative? Are there mandatory requirements they must meet as a forensic facility, and if yes, could these be waived or modified without imposing undue hardship? In the case of meal times, he has not asked for accommodation – should that make a difference? What kind of accommodation might be appropriate? He may not be able to articulate his needs. I would think that if they notice he is losing weight, the organization has an obligation to ask or assist. What could they have done differently? If health and safety needs are paramount, could they rearrange staff to do this? Could they contract staff out if they need more staff? Could they ask the government for more staffing?
- Ground: disability Social area: Employment Discriminatory effect: lack of accommodation (procedural & substantive) Issues or Principles: Part of the disability is that people do not accept that they have a problem The employer’s responsibility is to offer the person a program, accommodation, time off, which was not done Even if a program was offered to the person and rejected, the employer cannot fire the employee outright, unless to keep them on would constitute undue hardship. There must be a process of progressive discipline applied. Is it a health and safety risk to other clients? Employees? What are the risks – how do we measure the risks? It could be that this does constitute undue hardship – having an addictions counsellor who is under the influence of alcohol. If an employee refuses accommodation and cannot perform the essential duties of the position, disciplinary steps can be taken Last chance agreements “be sober or else”, are problematic from a Code perspective, because they don’t take into account the reality that part of recovery sometimes involves relapse. At the end of the day, the employee is expected to fulfill the essential requirements of the job (with or without accommodation), and perform meaningful work for the employer Problems, or anything else you need to know in order to assess? have clients complained? Ideas about what could or should have been done differently Use an accommodation policy Sit down with the person and work out an accommodation plan. Identify how progressive discipline may work If the behaviour is too much of a health and safety risk, consider providing a leave to the employee, under an employee assistance plan (accommodation doesn’t have to involve paid leave, unless there are STD and LTD provisions in place).