Policy and Guidelines on Disability and the Duty to Accommodate, 2000
The Ontario Human Rights Commission (The Commission) first issued Guidelines for assessing accommodation requirements for persons with disabilities in 1989. These Guidelines provided a standard for the interpretation of "undue hardship", as defined in the Human Rights Code: Revised Statutes of Ontario (1990). In November of 2000, The Commission released a second and more detailed interpretation entitled: Policy and Guidelines on Disability And The Duty To Accommodate (Policy and Guidelines). This is now the Commission's current policy on disability, accommodation, and undue hardship. It was completed after an extensive study of applicable human rights law and public consultation.
There are several features in the Policy and Guidelines including;
• Reaffirmation of undue hardship
• The necessity of undue hardship to ensure equality
• The right to be accommodated as an integral part of the right to equal treatment
• The significance of individualized accommodations
• The principles of design by inclusion and barrier removal emphasizing equal participation of persons with varying levels of ability
• The critical role of those responsible for accommodation in the accommodation process; individuals, partnerships, corporations, companies, unions, employee associations etc.,
• The impact of accommodation on performance standards
• The balance of dignity with risk and health and safety considerations.
References to case law and international human rights obligations are clearly made within the document. The Commission will apply these Policies and Guidelines in their complaint investigations.
Note: Many references to employment environments and situations are made and substantiated by the Commission in the Policy and Guidelines, however these examples have been neutralized with "provider", for the purposes of this document. As well, examples that are exclusive to employment activities have not been reflected in this section
Disability includes present and past conditions, as well as perception of disability. Not all conditions are identified in The Human Rights Code Section 10 (1) definition of "handicap". Protection for persons with disabilities includes those defined in Section 10 (1), as well as other conditions not explicitly indicated. Conditions and illness can be "disabilities" and individuals may show they were treated unfairly because of the perception of a disability. Therefore, the Code's definition of handicap includes perceived handicap.
Non-evident disabilities, or those conditions that are not apparent, may not be visible because of their episodic nature. Many of these disabilities are not well understood, and this often results in "stereotyping, stigma and prejudice" (2000, p. 10).
Mental disabilities carry a distinct disadvantage for those experiencing them. Persons with mental health illnesses encounter significant barriers, in that, the associated stigma exacerbates stress and
may trigger or worsen the person's condition.
Discrimination due to disability or handicap, under The Code can be direct, indirect, constructive or based on failure to accommodate actual differences. Three broad inquiries will help The Commission to determine if discrimination has occurred. They include; differential treatment, an enumerated ground and discrimination in a substantive sense (2000, p. 11).
Accommodations are required from providers of services, goods, facilities and housing, employers, trade or occupational associations and self-governing professions. Providers include individuals, partnerships, corporations, companies, joint ventures and organizations.
How accommodation is provided and the individual's own participation in the process must be considered.
The Duty to Accommodate:
Once disability-related needs are known, the legal onus shifts to those with the duty to accommodate. Meeting the needs of persons with disabilities requires actions that respect the dignity of those persons. Human dignity encompasses individual self-respect and self-worth. Further, dignity recognizes the privacy, confidentiality, comfort, autonomy, individuality and self-esteem of persons with disabilities in regards to whether accommodations maximize integration and full participation.
Accommodation is a matter of degree. The means of accommodation may be considered on a continuum of least respect for human dignity, to most respectful of human dignity.
For example, access by a freight elevator to the second floor of a retail store would be "least respectful" of dignity. Access by a public elevator is "most respectful" of dignity. Persons with disabilities should have the same opportunities as others, in a manner that is as convenient and pleasant for them as it s for others (2000, p. 13).
There is no set formula for accommodation. Each person's needs are unique and must be evaluated newly when a request for accommodation is made. Each person with a disability must be considered, assessed and accommodated individually.
Persons with disabilities have an inherent right to fully participate and enjoy life. Achieving integration and full participation requires barrier-free environments and conditions of living. Therefore, preventing and removing barriers results in persons with disabilities to equally "face the same."
Preventing and removing barriers results in persons with disabilities to equally "face the same duties and requirements as everyone else with dignity and without impediment" (2000, p. 14). Different treatment, which does not offend the individual's dignity, may be required.
Essential to the principle of integration and full participation are actions that give meaning to the right to equality and the right to freedom from discrimination:
• Design by inclusion: design choices should be made that do not create barriers for persons with disabilities
• Removing barriers: intentional changes that result from actively seeking, identifying and removing barriers
• Accommodating remaining needs: applying differential treatment