Discrimination based on mental health or addiction disabilities - Information for service providers (fact sheet)

The Ontario Human Rights Code

The Ontario Human Rights Code (the Code) is the law that provides for equal rights and opportunities, and freedom from discrimination. The Code recognizes the dignity and worth of every person in Ontario. It applies to the social areas of employment, housing, goods, facilities and services, contracts, and membership in unions, trade or professional associations.

Mental health issues and addictions are “disabilities” that are protected under the Code. For example, the Code protects people who have anxiety disorders, panic attacks, post-traumatic stress disorder (PTSD), depression, schizophrenia, bipolar disorder, or addictions to alcohol or drugs, just to name a few.

People have the right to be free from discrimination when they receive goods or services, or use facilities. “Services” is a broad category and can include privately or publicly owned or operated services. Some examples are:

• Stores, restaurants and bars
• Hospitals and health services
• Schools, universities and colleges
• Public places, amenities and utilities such as recreation centres, public washrooms, malls and parks
• Services and programs provided by municipal and provincial governments, including social assistance and other benefits, and public transit
• Services provided by insurance companies.

Services include those that distinctly serve or benefit people with mental health disabilities or addictions.

Mental health and addiction disabilities

People with mental health and addictions disabilities experience impairment and barriers in different ways. Disabilities are often “invisible” and episodic, with 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.

People with addictions have the same right to be free from discrimination as other people with disabilities. There is often a cross-over between addictions and mental health disabilities, and many people experience both. The Code also protects people from discrimination because of past and perceived disabilities.

Example: A shop owner refuses to serve a customer in a store, because the owner perceives that he may have a mental health disability, even though there is nothing about his behaviour that is cause for concern. 

Discrimination

Discrimination against people with mental health or addiction disabilities is often linked to prejudicial attitudes, negative stereotyping, and the overall stigma surrounding these disabilities.

Discrimination in services may happen when a person experiences negative treatment or impact because of their mental health or addiction disability. Discrimination does not have to be intentional. And, a person’s mental health or addiction disability needs to be only one factor in the treatment they received to be able to show that discrimination took place.

People with a mental health or addiction disability who also identify with other Code grounds (such as sex, race or age) may be distinctly disadvantaged when they try to access a service. Stereotypes may exist that are based on combinations of these identities that place people at unique disadvantage.

Example: A security company tells its mall security guards that they should watch for people who appear to be Aboriginal, have low incomes, and look like they have mental health or addiction disabilities. This could be discrimination based on intersecting Code grounds relating to ancestry, race and disability.[1]

Forms of discrimination

Discrimination may take many different forms. It can happen when service providers specifically exclude people with mental health disabilities or addictions from receiving services. Discrimination can also happen when service providers withhold benefits that are available to others, or impose extra burdens that are not imposed on others, without a legitimate reason. This discrimination is often based on negative attitudes, stereotypes and bias.

Example: A family doctor refuses to give general health care services to someone with an addiction because she says that people with addictions are merely seeking drugs. 

Discrimination may also happen indirectly. It may be carried out through another person or organization.

People associated with persons with mental health or addictions disabilities are also protected from discrimination and harassment. This could include family, friends, or someone advocating on a person’s behalf.

Discrimination is often subtle. It may not be likely that discriminatory remarks will be made directly. Subtle forms of discrimination can usually only be detected after looking at all of the circumstances of a situation to see if a pattern of behaviour exists. Individual acts themselves may be unclear or explained away, but when viewed as part of a larger picture, may lead to an inference that discrimination based on a Code ground was a factor in the treatment a person received.

Adverse effect discrimination

Sometimes seemingly neutral rules, standards, policies, practices or requirements have an “adverse effect” on people who have mental health or addiction disabilities. 

Example: A service provider’s assessment process takes place only by telephone. The provider recognizes that this has negative impact on people with low incomes, including people with psychosocial disabilities, because many people from this group do not own a telephone, and have difficulty getting access to one. The organization changes the process to allow for in-person assessments as well.

Harassment

Harassment happens when someone shows a vexatious (which means distressing or annoying) pattern of doing or saying something based on a person’s mental health disability or addiction that they know, or ought to know, is unwelcome.

Harassment could include:

• Slurs and name-calling
• Graffiti, images or cartoons showing people with mental health disabilities in a negative way
• Singling out a person for teasing or jokes related to their mental health disability or addiction
• Unwanted personal questions or remarks about someone’s disability, medication or accommodation needs
• Repeatedly excluding people from the service environment, or “shunning” them
• Revealing someone’s mental health disability or addiction to people who do not need to know
• Circulating offensive material about people with mental health disabilities or addictions at an organization by email, text, the Internet, etc.

Poisoned environment

A poisoned environment may be created when unwelcome comments or conduct are widespread in services and facilities which create a hostile or oppressive atmosphere for one or more people from a Code-protected group. Although the definition of harassment refers to “repeated” actions or comments, sometimes a single remark or action can be so serious that it results in a poisoned environment.

Example: A woman, who had anxiety, was accommodated during surgery by having a person help her to relax before the procedure. After surgery, her surgeon told her, “Had I known you were crazy, I never would have operated on you.” This type of comment could be seen as poisoning the service environment for this person.

Mental health profiling

Mental health profiling is any action taken for reasons of safety, security or public protection that relies on stereotypes about a person’s mental health or addiction disability instead of on reasonable grounds, to single out a person for greater scrutiny or different treatment. A “stereotype” is a generalization about a person based on assumptions about qualities and characteristics of the group they belong to.

Example: Security staff at a hospital are routinely called to be present if a person’s file reveals a mental health diagnosis, regardless of the person’s behaviour.

Systemic discrimination

Systemic discrimination refers to patterns of behaviour, policies or practices that are part of the structure of an organization or sector, which create a position of relative disadvantage for people with mental health disabilities or addictions. The policies or practices may appear neutral on the surface, but have an adverse effect or exclude people with mental health disabilities or addictions.

Example: A person was taken to hospital by police for a mental health disability five years ago. When he applies for an educational co-op placement at a hospital, his contact with the police comes up on a police record check and he is denied the placement. The policies and practices that led to this situation can be systemic discrimination.

Failure to accommodate

When an organization does not accommodate a person’s mental health or addiction disability to the point of undue hardship, this also violates the Code.

Reprisal

It is also against the Code for a person to be punished or threatened with punishment because they try to enforce their rights under the Code (for example, by making a complaint). This is called reprisal (or “payback”). 

Selecting people for a service

Both the selection process of a service and the reasons used to select service users must comply with the Code. Criteria that are under-inclusive, and that deny services or benefits to people with mental health or addiction disabilities, while they are available to other people with disabilities or people without disabilities, have been found to be discriminatory in certain circumstances.

Example: The Ontario Disability Support Program is a social assistance program designed to assist people with a disability who have low socio-economic status. The program was successfully challenged because it specifically excluded people whose impairments resulted solely from drug and alcohol addiction. The Ontario Court of Appeal found that it was well-known that people with addictions and social assistance recipients are subject to stigma and prejudice, and that there was no non-discriminatory explanation for why the legislation left this group ineligible for benefits.[2]

Organizations should carefully consider the criteria they use to make sure they reflect the purpose of the program or service and are not unjustly screening out people based on a mental health or addiction disability, or other Code grounds.

Some services specifically target, serve or benefit people with mental health disabilities or addictions. Programs and policies that apply distinctly to people with these disabilities must ensure equality, respond to people’s individualized needs and uphold people’s dignity. They should never be used as a way to continue inequality, segregation or exploitation.

Designing inclusively and removing barriers

People with mental health or addictions disabilities face many kinds of barriers every day. These could be attitude, communication, physical and systemic barriers. Service providers should identify and remove barriers voluntarily instead of waiting to answer individual accommodation requests or complaints.

Example: A medical centre reviews barriers to its service by interviewing its service users. It finds that people with multiple mental health and addiction disabilities and low incomes are not as likely to be long-term clients because they are often told that staff do not have the expertise to deal with their concerns. Based on this feedback, the centre revises its practices by using a “team” approach so each client has better access to a number of professionals – medical professionals with expertise in different areas, social workers, housing workers and peer support workers. It seeks out continuing professional education on issues relating to mental health and addiction and related issues, such as poverty, to increase the expertise of its staff. 

Effective inclusive design reduces the need for people to ask for individual accommodation. Service providers should use the principles of inclusive design when creating policies, programs, procedures, standards, requirements and facilities.

Negative attitudes about people with mental health disabilities or addictions can be barriers too. Taking steps to prevent “ableism” – attitudes that devalue and limit the potential of people with disabilities – will help promote respect and dignity, and help people with disabilities to fully take part in community life.

Duty to accommodate

Under the Code, service providers have a duty to accommodate the needs of people with mental health or addiction disabilities to the point of undue hardship, to make sure they have equal opportunities, equal access and can enjoy equal benefits. The goal of accommodation is to allow people to equally benefit from and take part in services.

This means that service providers and others may need to change their rules, procedures, policies and requirements to allow for equal access and equal opportunities. 

Example: An organization that oversees provincial elections works closely with a community mental health organization to ensure that people with mental health disabilities who are homeless can vote. People in this situation face barriers when voting because they may not have the required proof of identity and residence. The elections organization registers eligible mental health organizations to provide individuals with certificates that can be used at the poll as proof of identity and residence, enabling them to vote without additional identity documents.[3]

Three key principles drive the duty to accommodate:

• Respect for dignity
• Individualization, and
• Integration and full participation.

The steps taken to assess an accommodation (the “procedural” part of the duty to accommodate) are just as important as the accommodation that is provided (the “substantive” part of the duty to accommodate).

A service user who needs a disability-related accommodation must:

• Tell the service provider what their disability-related needs are in relation to the service being provided
• Provide supporting information about the needs and limitations relating to their disability, including information from health professionals where appropriate and as needed
• Co-operate with the service provider on an ongoing basis to manage the accommodation process.

Service providers must:

• Accept requests for accommodation from service users in good faith, unless there are legitimate reasons for acting otherwise
• Ask only for information they need to provide the accommodation. For example, a service provider may need to know that someone needs a deadline to be extended because they have spent time in hospital, but not that they have an anxiety disorder
• Take an active role in looking at accommodation solutions that meet individual needs
• Deal with accommodation requests as quickly as possible, even if it means creating a temporary solution while developing a long-term one
• Respect the dignity of the person asking for accommodation, and keep information confidential
• Cover the costs of accommodations, including any needed medical or other expert opinion or documents.

Maintaining confidentiality for people with mental health disabilities or addictions may be especially important because of the strong social stigmas and negative stereotyping that exist about these disabilities.

Sometimes, a person with a mental health or addiction disability cannot identify they need accommodation. Service providers must try to help a person who is clearly unwell, or is thought to have a mental health disability or addiction. They must ask if the person has needs related to a disability and offer assistance and accommodation.

However, organizations are not entitled to try to diagnose illness or “second-guess” a person’s disability.

Example: A professor is unaware of a student’s mental health disability, but thinks that a disability might exist due to noticeable changes in his behaviour. The professor sees that the student is having difficulty completing his assignments, and is showing obvious signs of distress in class. The professor asks him if he has any accommodation needs and makes him aware of the accessibility office on campus.

Forms of accommodation

Many different accommodation methods and techniques will respond to the unique needs of people with mental health disabilities or addictions. Many accommodations can be made easily, and at low cost. Where putting the best solution in place right away may result in “undue hardship” because of significant costs or health and safety factors, service providers still have a duty to look at and take next-best steps that would not result in undue hardship. Such steps should be taken only until better solutions can be put in place or phased in.

Depending on a person’s individual needs, examples of accommodation may include: 

• Several different ways of contacting a service including by phone, in person and by regular and email
• Extra time (for example, for school exams)
• More breaks, where appropriate (for example, during a court hearing)
• Flexible attendance requirements, where possible, if an absence is linked to a disability
• Flexible rules if someone does not comply with a deadline, if the reason is linked to a disability
• A quiet, comfortable space to sit
• To have one’s disability taken into account if it is related to behaviour that would otherwise lead to withdrawing the service or some other consequence.

Medical information

When asking for accommodation, the type of information that service users may generally be expected to provide includes:

• That the person has a disability or a medical condition
• The limitations or needs associated with the disability
• The type of accommodation(s) that are needed to allow the person to access the service and fulfill any essential duties or requirements of using the service.

Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy, while still giving the service provider enough information to make the accommodation.

Generally, the service provider does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation asked for. In rare situations where a person’s accommodation needs are complex, challenging or unclear, the person may be asked to provide more information, up to and including their diagnosis. In these situations, the service provider must be able to clearly justify why the information is needed.

Accommodating a person’s mental health or addiction disability, by modifying processes, procedures, requirements or facilities to allow equal access, is not the same as treating someone’s mental health disability or addiction. As part of their duty to accommodate, a service provider is generally not expected (or qualified) to give counselling, treatment or medication to a person.

Preventing and responding to discrimination

Under the Code, service providers must make sure their organizations are free from discriminatory or harassing behaviour. Service providers violate the Code when they directly or indirectly, intentionally or unintentionally infringe the Code, or when they authorize, condone or adopt behaviour that is contrary to the Code.

Organizations must take steps to address negative attitudes, stereotypes and stigma to make sure they do not lead to discriminatory behaviour toward people with mental health disabilities or addictions.

Education on human rights works best alongside a strong proactive strategy to prevent and remove barriers to equal participation, and effective policies and procedures for addressing human rights issues that do arise. A complete strategy to prevent and address human rights issues should include:

• A barrier prevention, review and removal plan
• Anti-harassment and anti-discrimination policies
• An education and training program
• An internal complaints procedure
• An accommodation policy and procedure.

See the OHRC’s A policy primer: Guide to developing human rights policies and procedures for more information.

For more information:

The Ontario Human Rights Commission’s Policy on preventing discrimination based on mental health disabilities and addictions and other publications are available at www.ohrc.on.ca.