YOUR RIGHTS UNDER HUMAN RIGHTS LAWS October 22, 2016

ARCH DISABILITY LAW CENTRE Presented By Dianne Wintermute & Saquiba Rahman ARCH DISABILITY LAW CENTRE www.archdisabilitylaw.ca 55 University Avenue, 15th floor Toronto, Ontario M5J 2H7 Tel: 416-482-8255 or 1-866-482-2724 TTY: 416-482-1254 or 1-866-482-2728 Fax: 416-482-2981 or 1-866-881-2723 Email: archlib@lao.on.ca

ARCH DISABILITY LAW CENTRE community legal aid clinic dedicated to defending and advancing equality rights of people with disabilities in Ontario ARCH’s work includes: Summary legal advice and referral services Representing individuals and disability organizations before tribunals and courts (limited to certain areas of law) Education to people with disabilities on disability rights Education to legal profession on disability law Law reform and policy submissions Community development

ARCH DISABILITY LAW CENTRE Call ARCH if you: ARE A PERSON WITH A DISABILITY NEED ASSISTANCE OR HAVE A QUESTION ABOUT : your human rights your attendant care services your rights as a person living in a group home your rights as a student or a worker capacity to make your own decisions

ONTARIO HUMAN RIGHTS CODE & CANADIAN HUMAN RIGHTS ACT

HUMAN RIGHTS LAWS In Canada we have laws that help to prevent discrimination and help to protect people with disabilities from discrimination The law in Ontario is called the Human Rights Code The law for federal governments, banks, airlines, insurance companies etc is the Canadian Human Rights Act

Human Rights Code or Canadian Human Rights Act The Human Rights Code of Ontario applies to agencies and businesses that provide services in Ontario like schools, shops, ODSP office, local community centre, Toronto Transit. Canadian Human Rights Act applies to business and agencies that the federal government has power over like banking, the postal service, airlines, telephone companies, federal government agencies. If you aren’t sure check the Canadian Human Rights Commission website: www.chrc-ccdp.ca

YOUR HUMAN RIGHTS The Human Rights Code says:  Every person has a right to equal treatment with respect to employment, receipt of services, housing, without discrimination because of disability. Every person has a right to freedom from harassment in the workplace, in their rental housing, in school, stores, restaurants, hospitals, police, at the movies, at the gym etc. because of disability.

YOUR HUMAN RIGHTS WHAT DO THESE THINGS MEAN TO YOU? THE RIGHT TO EQUAL TREATMENT THE RIGHT TO BE FREE FROM DISCRIMINATION THE RIGHT TO BE FREE FROM HARASSMENT Equal treatment does not mean everyone being treated in the same way. It means that persons with disabilities have the right to receive accommodation to put them on the same level playing field as everyone else.

Human Rights Code Generally Human Rights laws do not cover incidents that happen to you by someone you meet in passing in the street Generally Human Rights Laws do not cover things that happen between you and your neighbours, friends or family

What does “Disability” Mean? “Disability” is defined differently depending on the particular law. Ontario Human Rights Code offers a very broad definition of disability – including physical disabilities, visual, hearing and communication impairments, acquired brain injuries, learning disabilities, intellectual disabilities, mental health disabilities and addictions.

What does “Disability” Mean? Canadian Human Rights Act also defines disability broadly: "disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug

What does “Disability” Mean? Disability includes actual and perceived disability Perceived disability is when someone is believed to have or have had a disability Examples: Person who uses a communication device may be presumed to have an intellectual disability A person with a minor illness is presumed to be incapable of doing any work A person is refused work based on the belief that she may develop a disability in the future

Stuttering as a Disability From a human rights perspective, stuttering must be declared as a disability Stuttering was recognized as a disability by the Ontario Human Rights Tribunal i.e. Thomas Klassen case A way to address structural and systemic barriers It is perhaps difficult to accept stuttering as a disability. However, from an HR perspective, disability is the only way to have schools, employers, etc. provide accommodations, rather than a moral duty to do so. You must self-declare in order to get protection. Saying you have a disability does not necessarily mean that you’re worse off, but impaired from functioning in society or from basic daily activities. Thomas Klassen, HRTO case 2011 – Mr. K stuttered, especially over the phone and wanted wanted to speak to children’s teacher via email; filed a complaint against the TDSB; complaint dismissed – TDSB could provided alternative forms of communication; however, vice-chair agreed that stuttering is a disability - A way to address structural barriers and effectuate change – shortly after, school changed guidelines for teachers regarding email; impact on on every student and parent in that school

DISCRIMINATION What is DISCRIMINATION? Generally discrimination means treating people differently because of their disability and the different treatment hurts, harms, offends or prevents someone from getting where they need to go, getting what they need or reaching their goals

DISCRIMINATION Examples of Discrimination: A person is fired from her job because the employer discovers that the employee has a disability. A person cannot speak to the cable company over the phone and the company will not let them communicate in an alternative way. A person is not offered accommodation for a job interview. A person is asked to speak slower because their supervisor does not believe they have a disability.

Duty to Accommodate Definition of Accommodations Accommodations are “changes that are made or things that are put in place to stop or prevent discrimination” Accommodations are steps taken so that the person with a disability is not disadvantaged Accommodations are “what is required in the circumstances to avoid discrimination” Accommodations are steps taken to eliminate disadvantage that results from a rule or practice

Duty to Accommodate Examples of Accommodations: If the job involves speaking to the public, the employer must think about whether the job can be done by using other methods of communication An employee with disability may receive permission to complete some work at home or have stressful parts of the job eliminated. Allowing an employee more time during meetings or presentations

Duty to Accommodate Examples of Accommodations: Allowing someone who stutters to take a written rather than an oral test during an interview Allowing someone who stutters to have interview questions ahead of time so that they can prepare their answers

DUTY TO ACCOMMODATE Someone can only refuse to make the changes that are needed to stop discrimination if they can show it would cause “undue hardship” undue hardship means Costs – it would be impossible to pay the costs They have looked at all sources of outside funding Health and safety requirements make it impossible (for example, a person with a drug or alcohol addiction who applies to be a taxi driver)

DUTY TO ACCOMMODATE Accommodation must be for your own personal needs You will likely have to ask for the accommodations You do not always have to tell what your disability is but sometimes details about your disability are needed in order to get the accommodation you need This can be hard when you don’t want people to know you have a disability

DUTY TO ACCOMMODATE The duty to accommodate is a process You will likely need to take an active role in the process of finding the accommodations you need You and your employer may need to try various things to find the best way to accommodate your needs. A doctor’s note is not always necessary It is up to you to ask for the accommodation and it is up to the employer to show why providing the things you need would cause them undue hardship

DUTY TO ACCOMMODATE At the core of the principle of accommodation is individualization: each person must be assessed and accommodated individually. The accommodations that are provided depend on the needs and requirements of the person as well as the context. What is appropriate for one person may not be appropriate for another.

HUMAN RIGHTS & EMPLOYMENT

ONTARIO HUMAN RIGHTS CODE Every person has a right to equal treatment with respect to employment without discrimination because of disability. Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of disability.

CANADIAN HUMAN RIGHTS ACT It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. Disability is a prohibited ground of discrimination under the Act

Duty to Accommodate Requires an individual assessment of the employee and his/her disability-related needs Employers must take appropriate steps to sufficiently determine a range of appropriate accommodations Employers may need to consult with experts and other parties, such as lawyers and doctors, who would assist in gathering and understanding the relevant facts and information

Duty to Accommodate The duty to accommodate is a multi-party process There is a duty on all workplace parties (the person with a disability, employer, union) to assist and collaborate in finding appropriate accommodation The person who seeks to be accommodated cannot expect a perfect solution or the best solution Unions and collective agreements cannot impede the securing of appropriate accommodations

Employee’s Responsibilities Generally the employee with a disability has a responsibility to make his/her need for accommodation known to the employer Generally the employer does not have a right to know what the disability is, but is entitled to information that is reasonably required in order to assess needs and provide the accommodation Where the employer is not aware of a disability and no accommodation is requested, the duty to accommodate is not triggered Exception is where constructive knowledge can be imputed to the employer

Employee’s Responsibilities The employee has a responsibility to participate in discussions about accommodation solutions and provide information that the employer requires in order to understand the accommodation needs

Employer’s Responsibilities The employer must accept the employee’s request for accommodation in good faith Take an active role in ensuring that a range of possible accommodation solutions are identified and investigated Maintain the employee’s confidentiality Limit requests for information to those that are related to the nature of the accommodation needed

Employer’s Responsibilities Grant accommodation requests in a timely manner (unless the accommodation would cause the employer undue hardship) Bear the cost of any required medical information or documentation like doctor’s notes and letters setting out accommodation needs Bear the cost of accommodating if there are costs (modified workstation, technology, etc.)

Accommodation in the Hiring Process Examples: When employer makes a job offer, discuss accommodations that employee may require An employee may receive permission to complete some work at home or have stressful parts of the job eliminated

Accommodation in the Hiring Process Examples: Exclude or modify oral requirements during interview or application Provide alternative methods of communication (eg: writing, computer access) Additional time on exams or interviews

Disclosure of Disability and/or Medical Information Potential employee cannot be asked about disabilities at the application stage At interview, employer can ask about qualifications and ability to perform essential job duties Employer can ask questions related to whether employee is suitable for job if job involves working with vulnerable people Applicant under no obligation to disclose disability. Applicant should not misrepresent qualifications

Disclosure of Disability and/or Medical Information Ontario Human Rights Commission’s policy recommends that accommodation needs be discussed only after a conditional offer of employment has been made

Disclosure of Disability and/or Medical Information Employee will usually need to disclose disability in order to trigger employer’s duty to accommodate If employer has constructive knowledge of disability, cannot ignore it – must make further inquiries May be in the interests of the employee to disclose if disability affects performance and attendance All the employer needs is information to reasonably assess needs and provide accommodation – not entitled to know diagnosis Employer’s request for information must be reasonable; cannot be threatening, or so frequent that the burden on the employee becomes onerous.

Disclosure of Disability and/or Medical Information For employees with mental health disabilities, where disclosure may trigger stigma by the employer leading to a decision not to hire, Court has ruled there is no obligation to disclose the disability Employee must not misrepresent ability to perform the tasks required in the job

Examples of Accommodation in Employment An employee with disability may receive permission to complete some work at home or have particularly stressful elements of the job eliminated. An employee may have her work hours scheduled to begin later in the morning. An employee may have his shift changed from nights to days. An employee may change positions or take frequent short breaks throughout the work day. Work station may be modified to make it accessible for an employee who uses a wheelchair or an employee who is blind Accessible technology may be installed.

What to do if your rights are violated? You have the right to file an application about the discrimination you experienced directly at the Human Rights Tribunal of Ontario, if the case is covered by the Ontario Human Rights Code

ONTARIO HUMAN RIGHTS COMPLAINT PROCESS FILE CLAIM DIRECTLY TO TRIBUNAL HEARING MEDIATION SETTLEMENT YES NO TRIBUNAL HEARING

Where to get more information? There is a lot of very good information on the Ontario Human Rights Commission’s website at www.ohrc.on.ca And the Canadian Human Rights Commission at: www.chrc-ccdp.ca

What to do if your rights are violated? To get some help and to discuss your case: Call ARCH Disability Law Centre Tel: 416-482-8255 or 1-866-482-2724 TTY: 416-482-1254 or 1-866-482-2728 Call Human Rights Legal Support Centre Tel: (416) 314-6266 Toll Free: 1-866-625-5179 TTY: (416) 314-6651 TTY Toll Free: 1-866 612-8627

THANK YOU