Revised version approved by the OHRC: June 27, 2016
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This document replaces the Policy and guidelines on disability and the duty to accommodate (2001)
In Canada and across the world, people with disabilities have long experienced abuse, neglect, exclusion, marginalization and discrimination. This negative treatment has included restrictive immigration policies preventing people with disabilities from entering the country; involuntary sterilization to prevent people with disabilities from having children; inappropriate and harmful institutionalization, seclusion and restraint; and major barriers to accessing educational opportunities, employment opportunities and fairly paid work.
This unfortunate part of Canada’s history has continuing effects today. People with disabilities describe ongoing negative experiences as a result of societal structures and negative attitudes premised upon ableism. “Ableism” refers to attitudes in society that devalue and limit the potential of persons with disabilities. The Law Commission of Ontario has stated:
[Ableism] may be defined as a belief system, analogous to racism, sexism or ageism, that sees persons with disabilities as being less worthy of respect and consideration, less able to contribute and participate, or of less inherent value than others. Ableism may be conscious or unconscious, and may be embedded in institutions, systems or the broader culture of a society. It can limit the opportunities of persons with disabilities and reduce their inclusion in the life of their communities.
Ableist attitudes are often based on the view that disability is an “anomaly to normalcy,” rather than an inherent and expected variation in the human condition. Ableism may also be expressed in ongoing paternalistic and patronizing behaviour toward people with disabilities.
While there have been some significant gains for people with disabilities in recent years, serious barriers to equality continue to exist throughout society. Statistics Canada reports that Ontarians with disabilities continue to have lower educational achievement levels, a higher unemployment rate, are more likely to have low income status, and are less likely to live in adequate, affordable housing than people without disabilities. It is clear that people with disabilities continue to experience difficulties accessing employment, housing and various services throughout Ontario. “Disability” continues to be the most frequently cited ground of discrimination under the Ontario Human Rights Code (Code) in human rights claims made to the Human Rights Tribunal of Ontario (HRTO).
A person’s experience may be complicated further when discrimination based on a disability intersects with discrimination based on other Code grounds, such as race, sex, sexual orientation, age or another type of disability, etc. People with disabilities are also more likely to have low incomes than people without disabilities, and many people live in chronic poverty.
The Ontario Code protects people in Ontario with disabilities from discrimination and harassment under the ground of “disability.” This protection extends to five “social areas”:
- When receiving goods, services and using facilities. “Services” is a broad category and can include privately or publicly-owned or operated services including insurance, schools, restaurants, policing, health care, shopping malls, etc.
- In housing, including private rental housing, co-operative housing, social housing and supportive or assisted housing.
- When entering into contracts with others, including the offer, acceptance, price or even rejection of a contract.
- In employment, including full-time and part-time work, volunteer work, student internships, special employment programs, probationary employment, and temporary or contract work.
- When joining or belonging to a union, professional association or other vocational association. This applies to membership in trade unions and self-governing professions, including the terms and conditions of membership, etc.
People with disabilities are a diverse group, and experience disability, impairment and societal barriers in many different ways. Disabilities are often “invisible” and episodic, with people sometimes experiencing periods of wellness and periods of disability. All people with disabilities have the same rights to equal opportunities under the Code, whether their disabilities are visible or not.
Organizations and institutions operating in Ontario have a legal duty to take steps to prevent and respond to breaches of the Code. Employers, housing providers, service providers and other responsible parties must make sure they maintain accessible, inclusive, discrimination and harassment-free environments that respect human rights.
The Ontario Human Rights Commission (OHRC) is an independent statutory body whose mission is to promote, protect and advance human rights across the province as set out in the Code. To do this, the OHRC identifies and monitors systemic human rights trends, develops policies, provides public education, does research, conducts public interest inquiries, and uses its legal powers to pursue human rights remedies that are in the public interest.
The OHRC’s policies reflect its interpretation of the Code, and set out standards, guidelines and best practice examples for how individuals, service providers, housing providers, employers and others should act to ensure equality for all Ontarians. The OHRC’s Policy on ableism and discrimination based on disability provides practical guidance on the legal rights and responsibilities set out in the Code as they relate to the ground of disability. In particular, the policy addresses:
- a person’s rights under the Code, particularly at work, in rental housing, and when receiving services
- the right to be free from reprisal (“payback”) for exercising one’s rights under the Code
- different forms of discrimination (e.g. direct, indirect, subtle, “adverse effect,” harassment, poisoned environment, systemic discrimination)
- the need for organizations to design their environments inclusively, with the needs of people with disabilities in mind
- the principles of accommodation (respect for dignity, individualization, integration and full participation)
- how the duty to accommodate applies to people with disabilities
- duties and responsibilities in the accommodation process (e.g. the duty to inquire about accommodation needs, medical information to be provided, confidentiality)
- the considerations in assessing whether the test for undue hardship has been met (costs, outside sources of funding, health and safety considerations)
- other possible limits on the duty to accommodate
- organizations’ responsibilities to prevent and eliminate discrimination, and how they can create environments that are inclusive and free from discrimination.
The ultimate responsibility for maintaining an environment free from discrimination and harassment rests with employers, housing providers, service providers and other responsible parties covered by the Code. It is not acceptable to choose to stay unaware of discrimination or harassment of a person with a disability, whether or not a human rights claim has been made.
The OHRC’s Policy on ableism and discrimination based on disability is intended to provide clear, user-friendly guidance on how to assess, handle and resolve human rights matters related to disability. All of society benefits when people with disabilities are encouraged and empowered to take part at all levels.