Escolar Documentos
Profissional Documentos
Cultura Documentos
Katie Hall, Nicole Tos, Shayna Quibell, Kristen Granger, Sam Mcmillan, Diane Dela Cruz
Professor McKay-Panos
December 5 2016
th
DISABILITY DISCRIMINATION IN EMPLOYMENT 2
For centuries, individuals with disabilities all across the globe have experienced
exclusion, stigmatization, neglect, and discrimination, among many other negative treatments.
Certain areas of discrimination, have been given more attention, and seen more progress than
much later than other human rights movements; due not only to a lack of awareness, but also
Disability as an acknowledged ground of discrimination has been one of the latest incorporations
to various human rights legislations (Pothier, 2010). Mercifully, within the last few decades in
Canada we have seen numerous developments and transformations within human rights law to
include people with disabilities. Perhaps most notably, in 1977 our Federal government passed
the Canadian Human Rights Act, which included the prohibition of discrimination based on
disability. Five years later, in Section 15 of the Canadian Charter both physical and mental
disability were added as enumerated grounds for discrimination (Council of Canadians with
Disabilities, 2014). This particular human rights development was significant; as it was the first
time this right was guaranteed in any countrys Constitution. However, what many do not know
is that these grounds were originally excluded, and it was not until substantial lobbying efforts
were expended, and disagreements were had that in the eleventh hour disability was included as
Despite initial advancements and improvements in various areas to provide and protect
the rights of individuals with disabilities in Canada, to this day many people continually face
tremendous hardship, and discriminatory practices. In 2010, nearly half of the complaints the
Canadian Human Rights Commision (CHRC) accepted were cited on the ground of disability,
DISABILITY DISCRIMINATION IN EMPLOYMENT 3
making it the most frequently cited ground across Canada (Canadian Human Rights
Commission, 2011). Specifically within the area of employment disability continues to be the
most common ground involved in reasonable accommodation cases across Canada (Barnett,
Nicol, Walker, 2012). The sheer preponderance of claims, and cases centering on the ground of
disability is prospectively due to the large portion of Canadians living with visible, and invisible
disabilities. Statistics Canada completed a survey in 2012 showing that over 3.8 million
Canadians of working age identified themselves as disabled (Blinch, 2013). These rates will
continue to rise, due to a number of factors such as our ageing population. Thus, it is imperative
that greater, and more meticulous attention is paid to issues surrounding disability
discrimination, especially in the area of employment, due to the sheer number of Canadians
affected, and at risk of unjust treatment. The following brief will commence with an in depth
programs and resource support currently available. Next a discussion of the day-to-day
experiences some individuals with disabilities face will ensure, with a particular focus on the
barriers, and difficulties faced in the area of employment. Finally, the topic of reasonable
accommodation will be covered, including the duty of employers to accommodate. To tie the
brief together points and facts from the case of Smith v. Fawcett Truck Stop will be summarized
and highlighted to coincide and complement our topic of discrimination on the ground of
disability, in the area of employment. In its entirety, this brief tackles the issue of disability
discrimination in the employment sector, highlighting specific employment barriers and issues,
as well as key equality and accommodation considerations we believe have at many times, been
Legislation
DISABILITY DISCRIMINATION IN EMPLOYMENT 4
A number of pieces of legislation, both federally and provincially, are in place to protect
the rights and liberties of individuals with disabilities, particularly in the workplace. These
include, but are not limited to, the Canada-Alberta Labour Market Agreement for Persons with
Disabilities, the Canadian Charter of Rights and Freedoms, and the Alberta Human Rights Act.
The Alberta Government has many different programs available to assist people with
disabilities in finding and maintaining meaningful work. The main government program that
supports individuals with disabilities in Alberta is the Canada-Alberta Labour Market Agreement
for Persons with Disabilities (LMAPD). Under this, the Disability Related Employment Supports
Program (DRES) provides funding to individuals to help them overcome the plethora of barriers
and stigmas preventing their inclusion in the workplace (Government of Alberta, 2016). Other
programs laid out in the LMAPD include Work Foundations, Training for Work, and Persons
with Developmental Disabilities Employment Preparation and Placement Supports. All these
programs have the goal of helping individuals, as well as employers, find meaningful work for
people with disabilities (Government of Canada, 2016). Although the LMAPD also offers many
education and health services, this brief will only specifically examine the employment programs
The Canada-Alberta LMAPD was signed in March, 2003 and has developed, and
continually grown in many positive ways since. The 2013 Economic Action Plan aimed to
improve the LMAPD to increase employment prospects for individuals with disabilities, and
Improvements will continue from 2014-2018, of which includes an Alberta Cost share with the
DISABILITY DISCRIMINATION IN EMPLOYMENT 5
The first program under human services this brief will examine is the Disability Related
and training supports specifically for individuals with disabilities in a number of ways
(Government of Alberta, 2015, p. 2). Supports include funding for post-secondary schooling
along with different training programs to help individuals enter the workforce in areas of specific
interest to them, and moreover supports continue to best ensure they maintain employment.
Individuals can also use DRES funding towards assistive technologies in their workplace, of
which can customize, and greatly enhance the workplace environment according to the needs of
the individual. These assistive technologies can include specialized computer software, job tutors
or coaches, and workplace modifications such as ramps, or specialized desk and mobility
equipment (Government of Alberta, 2015). It is however important to note that there are
specifications to qualify for DRES. Some of these specifications include that the individual must
be a Canadian Citizen and Alberta Resident, and must have documentation of a permanent or
chronic disability that provides a barrier to employment. These specifications, and criteria may
serve as problematic for some individuals, and in some fashion, pose as an additional barrier, and
form of discrimination, by requiring an individual to prove the nature and severity of their
disability.
The Work Foundations and Training for Work programs differ from DRES in a number
of ways. Mainly, these programs emphasize job-training skills and do not provide funding for
adaptive technologies. These programs are not only available to individuals with disabilities, but
are open to any Alberta resident needing assistance in finding employment, which is
DISABILITY DISCRIMINATION IN EMPLOYMENT 6
Work Foundations and Training for Work programs include: skills to enhance an individuals
To conclude this section of the brief on Alberta Employment Programs, we would like to
point out as shown in figure 1, the sizably important role PDD Employment Preparation and
Placement Supports poses in employment services for individuals with disabilities in Alberta.
Similar to the other programs examined, PDD is fragmented in sections to help individuals learn
skills and training necessary for employment, as well as to place individuals in employment
areas that correspond with their interests, and abilities. In the 2014-2015 year, 60% of
individuals who completed the PDD Employment Supports Program in Alberta obtained and/or
Figure 1
Ministry Program 2014/ 2015
Expenditures
As noted prior, Canada was considered to have ground breaking actions when they
included individuals with disabilities into the Canadian Charter of Rights and Freedoms (hereby
referred to as the Charter). Canada was among one of the first three countries in the world,
DISABILITY DISCRIMINATION IN EMPLOYMENT 7
along with Spain and the United States, to enact laws that prohibit discrimination against
individuals with disabilities (Kanter, 2003). In Canada, this occurred in 1982 with the enactment
of the Constitution Act, however, this was not actually enforced until 1985, to allow the
government, and services time to align their practices with the nondiscrimination clause. Another
large advancement seen in Canada is that individuals with mental disabilities and addictions are
included in these rights, as compared to places such as Ethiopia where these individuals are
excluded (Kanter, 2003). However, upon examination, it can be challenging to know the extent
to which individuals with disabilities are included within the Charter. Further, we argue that
there still is not enough protection for individuals with disabilities within employment, under this
current legislation, nor does there exist enough pre-emptive parameters to counter the chances of
The main goal of the Charter of Rights and Freedoms, in regards to individuals with
disabilities, is to protect them from the laws and actions of the government or government
agencies. This is upheld mainly by section 15(1) which states that there is equality before and
under the law and equal protection and benefit of the law without discrimination based on
Charter). Therefore, section 15(1) allows for individuals with disabilities in the employment
sector protection from being discriminated against based on both visible and invisible
disabilities. Employers within the government field would be required to allow equal opportunity
for individuals with disabilities in selection of jobs but also in support within the workplace, but
only to the extent of section 1. Section 1 states that the rights and freedoms outlined within the
Charter are set out in subject only to such reasonable limits (Charter). A challenge of such is
that these limits are determined on a case by case basis, by the ruling judge. Thus, there is no
DISABILITY DISCRIMINATION IN EMPLOYMENT 8
standard or outline of what is considered to surpass the reasonable limit, making it more
challenging for individuals with disabilities to fully understand, access, and argue for their rights.
Moreover, the main purpose of the Alberta Human Rights Act (Alberta Human Rights
Act, RSA 2000 c A 25.5, hereby referenced as AHRA) is to protect individuals from
discrimination, which can stem from the government, corporations, or other individuals.
Specifically in regards to individuals with disabilities, two main sections of the AHRA are in
place to protect them from discrimination in the workplace: section 7 and 8. Section 7(1) states
that employment or accommodation within the workplace cannot be denied based on either
mental or physical disability (AHRA, 2010). Further, section 7(3) outlines that employers must
with disabilities into the workplace (AHRA, 2010). Although, this section has the same
challenge as section 1 of the Charter, in regards to reasonable limits, as individuals do not know
the full extent of their rights to accommodation until they are determined by a judge in court,
which can be an expensive, time-consuming, and quite the intimidating experience. Section 8(1)
of the AHRA prohibits employers to circulate or make a requirement for employment, anything
that would limit individuals with disabilities in the opportunity of acquiring or maintaining
(AHRA). Another important aspect of the AHRA is the inclusion of definition for both a mental
and physical disability, found within section 44(h) and (l), respectively (AHRA). However, the
manner and language in which these disabilities are defined is both binding and degrading to the
individual. In regards to the definition of a mental disability, the word disorder is repeated
numerous times which gives a negative reflection, and connotation of disability, and shows that
DISABILITY DISCRIMINATION IN EMPLOYMENT 9
stigmatization still largely subsists. It is absolutely imperative that the definitions of disability
are rewritten to remove the negative stigma that is still associated with individuals of varying
abilities, especially those with mental disabilities, before any real progress can ensue.
needs to be more thorough definitions and understanding within the law to allow for better use
and protection under the law from discrimination. Individuals with disabilities face enough
challenge and barriers to employment, that legislation should look to help individuals, not create
define the extent employers should go to in terms of accommodation, this will allow more
individuals with disabilities the deserved opportunities to obtain, and retain employment.
Barriers
As explored in the previous section, much legislation exists to protect the disability
community from discrimination within the area of employment. This legislation, however, fails
to eliminate several barriers faced by individuals with disabilities who are trying to find and
maintain meaningful employment. The obvious barriers, such as the lack of physical accessibility
within the workplace and the need for accessible transportation, barely scratch the surface of the
issues. Deeply ingrained social attitudes regarding disability tend to be one of the most damaging
and prevalent barriers that individuals with disabilities experience in the employment sector.
These barriers include: adverse stigma, an overall lack of education within the workplace about
disability, and low personal self-esteem and advocacy skills. These barriers contribute to the
perpetual cycle of devaluation of people with disabilities in the workforce and within society as a
whole.
DISABILITY DISCRIMINATION IN EMPLOYMENT 10
Many employers do not understand what actual, true inclusion entails and generally do
not want to hire or promote a person with disability. Much of this stems from the erroneous idea
that it costs more to hire someone with a disability because there may subsist some sort of extra
risk or required accommodation (Wilson-Kovacs, Ryan, Haslam & Rabinovich, 2008, p. 706).
This assumption is false because people with and without disabilities require varying levels of
vocational support and accommodation from their employers. Shier, Graham & Jones (2009)
interviewed 70 individuals in Calgary and Regina with a range of disabilities and found that over
individuals human capital were the largest barriers they faced in the employment sector (p. 67).
thus it is assumed that because of a disability an individual is less productive or valuable within
the workforce than someone who is not disabled. The direct result of this attitude is the
Occupational segregation is the distribution of people across and within occupations due
to a specific demographic characteristic that can impact an individual's earning potential (Maroto
& Pettinicchio, 2014, p. 77). People with disabilities who can find employment are over-
represented in blue collar jobs that provide little room for advancement and cause them to
to find work at all, ties in with the lack of personal self-esteem and knowledge of advocacy that
many people with disabilities experience. These personal barriers exist because, from the time
they are born, people with disabilities are all too often made to feel like they are broken and need
to be fixed, which are ideas perpetually promoted through societal practices. Individuals with
internalized oppression, and the expectation that people with disabilities cannot find or maintain
Reasonable Accommodation
Although scarcely admitted in the workplace, negative connotations are often associated
with, and towards individuals that have disabilities. Despite the fact that there exists such a vast
array of easily implemented options for accommodations, as well as protection against disability
discrimination offered in the Canadian Human Rights Act, the statistics of unemployed
individuals with disabilities is much higher than the statistics for individuals without. The
employment rate in Canada for individuals with disabilities aged 25-64 in 2011 was 49%, and a
mere 26% for those considered to have a severe disability; compared to a much higher
employment rate of 79% for Canadians without a disability (Turcotte, 2011). Many individuals
remain perplexed regarding this staggeringly pronounced, persistent gap of employment rates
between individuals with disabilities and without. In the past few decades in particular, there
have been noticeable efforts, including the enactment of various pieces of legislation such as the
Employment Equity Act to provide protection, and to decrease unemployment among individuals
with disabilities. However, progress in this area still remains slow-moving compared to other
disabilities are sufficiently lacking, as is made apparent by the sheer number of complaints cited
in the area of employment, noting a dearth of effort on the part of an employer to accommodate
for the needs of their employees, and their disabilities (Canadian Human Rights Commission,
2011).
From the standpoint of an employer, there are various reasons, and justifications made
regarding the aversions which appear to systemically exist in employing individuals with
DISABILITY DISCRIMINATION IN EMPLOYMENT 12
disabilities. By far one of the biggest barriers identified, which fosters the skyrocketing
unemployment rates is the attitudes of employers attitudes, and the erroneous beliefs and
viewpoints many hold regarding the ability of this group of individuals, as well as
misconceptions about accommodations required for some people with disabilities (National
The main purpose of any business is to provide valuable product and service to its
customers in an efficient and meaningful way, all the while creating as much profit for the
business at the lowest possible cost, with the highest productivity level. Many employers may
adopt or internalize fears of hiring individuals based on negative stereotypes, and discriminatory
statements surrounding disability perpetuated in and by society. However, conversely, there can,
and does exist instances where persons with disabilities do lack the knowledge, skills and
abilities required for certain jobs. This issue is more predominantly seen regarding positions in
occupations such as construction, agriculture and mining fields (Lengnick-Hall, Gaunt, Brooks,
n.d.) There are times when an apparent lack of qualification is not a situation built upon
discrimination, or faulty stereotypical beliefs, but a situation of justifiable undue hardship on the
employer or business if they were to hire certain persons with disabilities. Undue hardship is to
be tackled on a case-to-case basis, and when determining it there are a few factors that must be
taken into consideration. These factors include financial burden, collective agreements,
Network, n.d.) However, employees must have sufficient, documented and reasonable evidence
to claim undue hardship. (Government of Canada, 2011) There is also opportunity for employers
DISABILITY DISCRIMINATION IN EMPLOYMENT 13
to claim bona-fide occupational requirement if there are discriminatory claims made against
Another issue that could be a factor towards the high unemployment rate is the fact that
workplaces, and employers may be unaware of certain tax benefits to hiring individuals with
disabilities, and may follow the erroneous belief that employing individuals with disabilities is
costly. Businesses are able to deduct the costs of making their facilities more accessible for
disabled workers, such as the installation of ramps. Businesses can also qualify for disabled
access credit, barrier removal deduction and work opportunity credits (IRS, 2016). There are also
many organizations and disability employment agencies that are available which aim to increase
inclusion in the community amongst individuals with disabilities. The costs of these
organizations often impose very little financial burden for the employees, and moreover, are
highly beneficial for all stakeholders. For example, in Alberta, Inclusion Alberta, Rotary, and
Edmonton PDD help to provide additional training and resources for persons with disabilities in
the workplace. The issue remains that agencies and their employers often have a lack of
awareness and education of the assistances and organizations out there to help in their
accommodation efforts. Thus, a call for greater education on part of employers, and more
stringent efforts to accommodate any and all employees with disabilities, truly to the point of
Canadian society, and that when it unfortunately does occur, individuals have the adequate tools
to achieve justice. An example of a victory over discrimination can be seen in the case of Smith
The complainant, Leona Smith, is a 47 year old cashier who has worked at Fawcett Truck
stop, the respondent, for about 5 years [1]. Since 1989, Smith has been living with osteoarthritis,
as well as thoracic muscle strain, which she sustained following an accident at her former
workplace [9]. Upon the advice of her physician, Smith chose an occupation with certain work
restrictions, a cashier in this instance, which would not aggravate her condition. The proprietor
of the truck stop decided to transfer his ownership to a man named Douglas Lee [1]. Before this
shift in control, Smiths condition was accommodated in a variety of ways. When is asked to
stock shelves, she was allowed to do so at a reduced rate [10]. Smith is also allowed to alternate
tasks throughout the day as to ensure she does not over exert particular muscles.
One year after assuming ownership of the truck stop, Mr. Lee unilaterally amended
Smiths cashier duties to include maid services [8]. These extra duties accounted for 2-4 hours of
her 8 hour work day, and included tasks such as making beds, doing laundry, and using the
incinerator [8]. Smith was apprehensive of the duties being asked of her, but decided to try one
shift to see if she could complete it without making her symptoms worse. Upon completing the
first amended shift, Smith experienced significant pain, and immediately saw her doctor [11].
Her physician, Dr. Newman, assessed her condition and wrote a note explaining that Smith has a
chronic back injury, and listed activities which she should not perform to avoid exacerbating her
condition further [12]. These activities included lifting, pushing, pulling, and having her arms
elevated for extended periods of time [12]. A couple days later, Smith attempts to discuss her and
Dr. Newmans concerns with Mr. Lee, however he does not want to listen to her complaints, and
insists she perform the duties just as he expects everyone to do [13]. Following this unsuccessful
meeting, Smith revisits Dr. Newman who writes another note explicitly stating Leona [Smith]
has a medical condition that is aggravated by housekeeping chores which she should avoid [14].
DISABILITY DISCRIMINATION IN EMPLOYMENT 15
Upon presenting the second letter, Mr. Lee still refuses to alter or make accommodations to
Smiths duties. In her desperation, Smith even offers to receive reduced pay in order for someone
else to complete the shift [14]. Mr. Lee declines her offer. A few days following this meeting,
Mr. Lee requests Smith come to his office. Mr. Lee gives Smith a letter stating the following
[15]:
The purpose of this letter is to formally notify you, that in regards to the medical notices I
received from your Doctor, it clearly states that you cannot perform the adjusted duties of
a cashier. I have no choice but to request that you take a leave of absence for three (3)
months. At this time, you can try and get your medical condition healed, and return with a
medical notice from your Doctor stating that you can complete the duties as a cashier.
For safety reasons, I cannot, with a clear conscience accept that you can physically
complete your duties without the fear that you could seriously injure yourself. If you are
not able to get your medical condition healed, I will have no choice but to ask you to leave
the employment of the Fawcett Husky. You are a valuable employee and I do not wish for
your employment to terminate. With time, maybe your medical condition will improve to
the point that you can continue your employment here.
I wish you success in your future endeavours.
This notice is comprised of blatant discrimination and ignorance on the part of Mr. Lee.
Assuming that a leave of absence for three months will somehow cure her chronic ailments is
more than unreasonable [16]. Due to the condition of being healed to be able to be allowed back
at work, Mr. Lee is in affect terminating Smiths employment based on her physical disability. In
addition to Mr. Lees ignorance and uncompromising attitude, the letter caused Smith to feel
demeaned and humiliated since it claims she is medically unfit to perform a job which she has
been doing for five years, and she knows she is not able to improve her condition in the time
allotted [17]. Fortunately for Smith, the Alberta Human Rights Commission, as described earlier,
Smith filed a human rights complaint on the grounds of discrimination based on physical
disability in the area of employment practices [3]. When assessing Smiths complaint, the panel
looks at three main issues; does Mr. Lee violate section 7 of the Human Rights Act; do his
DISABILITY DISCRIMINATION IN EMPLOYMENT 16
actions meet the legal test requirements of a Bona Fide Occupational Requirement(BFOR); and
if the first is true, what remedy is appropriate for Smith? In terms of whether discrimination
occurred, the panel decides that osteoarthritis is clearly a physical disability under the Act, Mr.
Lee unfairly ignored the medical notes from Smiths doctor, and the notice Mr. Lee gave Smith
constitutes prima facie discrimination [28-32]. Mr. Lee uses BFOR as a defence, however he is
unsuccessful. Mr. Lees decision to amend the duties is made without consulting Smith, and the
panel finds that the intimidating manner of the suspension/termination demonstrates malice
[36]. There is also no evidence of reasonable accommodation, or even an attempt thereof, since
the modified duties were considered final and the medical leave deadline is impossible for Smith
to achieve [37]. Due to these factors, the court establishes that Mr. Lee did not accommodate to
the point of undue hardship, and as a result his defence of BFOR is not accepted. Due to the
validity of Smiths discrimination claim and the unfounded defence of BFOR, the panel must
now address the issue of compensation. The panel elects to award Smith $7500 in general
damages because of the damage to her self-respect and dignity caused by the discrimination [42].
They also determine that Smith receive about $1180 for her lost wages [14 in Decision on Lost
Wages at bottom].
This victory over discrimination shows how effective the current legislation can be in
achieving justice. However, there are still many individuals who are unaware of their rights to
Conclusion
The case of Leona Smith vs. Fawcett Truck Stop is an explicit example of individuals
with disabilities being discriminated against in the area of employment. Through the LMAPD
DISABILITY DISCRIMINATION IN EMPLOYMENT 17
Act, and the Alberta Government, actions have been taken to introduce programs to better assist
people with disabilities in finding and maintaining meaningful work (Government of Alberta,
2015). As well, section 15 (1) of the Canadian Charter and the Alberta Human Rights Act both
work to protect individuals with disabilities rights and minimize the prevalence of discrimination
in the workplace (Charter). Legislation, and relevant programs have been improved in the past
few years, yet still many barriers unfortunately exist. These barriers include issues of physical
accessibility, but also go much deeper to include the subsistence of explicit discrimination, and
marginalization tactics from societal members. Oftentimes, employers are not familiar with the
definition of inclusion in the workplace, which can result not only in creating low self-esteem for
many individuals, but prevent individuals from knowing, and feeling comfortable and supported
enough to advocate, and speak up regarding their needs, and rights. This being said, there are
many means of accommodation available, and promoted for employers to explore, and utilize to
support their employees, yet the issue remains of whether or not such accommodations are
realized and put into practice. Conversely, the BFOR is in place to help assist the employers
rights when hiring and employing individuals with disabilities, as some means of
accommodation very well could place undue hardship on businesses and employers.
To conclude the brief, it is important to recognize that individuals with disabilities are
still a large minority seen in the area of employment. While programs and legislation are in place
to prevent discriminatory practices, it is by no means an easy issue to fix. Equality for people
with disabilities in the workplace, as well as in practically every sector of society is a constant,
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