This article was originally published in Transition, the magazine of Disability Alliance BC, Winter, 2019.
June 1, 2020
One of the purposes of human rights law is to identify and eliminate persistent patterns of inequality. Yet people with disabilities still face many barriers to participation and inclusion in our communities. Despite many gains, systemic inequality and discrimination against people with disabilities persist. Disability advocates and their allies continue to fight for meaningful inclusion. A human rights framework can help in this ongoing work.
Human rights law is not just about providing compensation and redress to people after they have been subjected to harmful and discriminatory treatment, though it can do that, too. Its purposes are transformative. The aim of human rights law is to foster a society in which there are no impediments to the full and free participation of all people in the economic, social, political, and cultural life of our communities. This requires genuine inclusiveness on the part of businesses, employers, service providers, and others.
It is not enough just to treat everyone the same. In fact, treating everyone the same can perpetuate historic and ongoing inequalities. The Supreme Court of Canada notes that “discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public.” In other words, concrete action must be taken to remove barriers standing in the way of true equality for people with disabilities.
BC’s Human Rights Code and the federal Canadian Human Rights Act protect us from discrimination in our employment, housing, and access to publicly available services. We are protected from discrimination on the basis of various personal characteristics including our sex, race, age, sexual orientation, gender identity and expression, and religion, among others. Disability is the most commonly cited ground of discrimination in human rights complaints. We see the impacts of this discrimination in low rates of employment and high rates of poverty for people with disabilities. It is clear that employers, landlords, and service providers still have work to do to prevent discrimination and ensure meaningful inclusion for people with disabilities.
Where a workplace rule, policy, practice, or standard is standing in the way of a disabled person’s ability to do their job or otherwise participate meaningfully in daily life, an employer, landlord, or service provider has a duty to accommodate. This means that they may have to make some adjustments to the job or service so that the person’s disability-related needs are met. This could include purchasing adaptive technology, installing mobility supports, modifying the person’s job duties, or making other adjustments. The goal is inclusion and the removal of barriers. As the Supreme Court of Canada has stated, “accommodation of difference is the essence of true equality.”
Employers, landlords and service providers have a duty to accommodate up to the point of undue hardship. That means they must take all reasonable steps to remove the barrier and, if they cannot, they must explain why. A failure to reasonably accommodate someone may result in a human rights complaint and an order from the Human Rights Tribunal to compensate the person for the harm they experienced because of the discriminatory treatment.
In a recent case, disability advocate Vincent Miele brought a human rights complaint against a restaurant because its lower floor was not accessible to him as a person who uses a wheelchair. His friends were seated on the lower floor, and had to be moved up the stairs to join him. He described the incident as incredibly embarrassing. The restaurant argued that since he could still access the upper floor and all of the restaurant’s services, there was no discrimination. The respondent tried to have the complaint dismissed. The Tribunal disagreed, and refused to dismiss the case. The Tribunal noted that “for many people with mobility-related disabilities, the physical environment is what excludes them from full and equitable participation in public life.” We should not accept it as “normal” for a service provider to create spaces that are not accessible to all of their patrons.[1]
Accommodations are critical to accessibility. When barriers are removed, people with disabilities are better able to contribute their knowledge, expertise, and skills to workplaces and communities. We all benefit when barriers to accessibility are removed. Employers worried about the cost of accommodations should know that there are economic benefits as well: research shows that investing in accommodations pays off, and ultimately saves employers money by helping to attract and retain a diverse workforce, reduce absenteeism and turnover, and ensure the talents and abilities of disabled employees are able to shine.
We should take care, however, not to treat accommodations as the only, or even the best path towards full inclusion and accessibility. Our goal should not be merely to try and fit people who are “different” into existing systems. We must also examine how institutions, systems, practices, and spaces must themselves be transformed in order to make them available, accessible, meaningful, and rewarding for the many diverse groups that make up our society.[2]
To accept exclusionary standards as the norm, to which people with disabilities must adapt or be accommodated into, perpetuates a society that is designed well for some, but not for others. A spirit of genuine inclusiveness would require service providers to design all their spaces with full inclusion in mind. Human rights law can assist as we work towards this transformative goal.
The BC Human Rights Clinic provides free legal services to people who need help with a provincial human rights complaint. See their website for more information and to apply for services: www.bchrc.net
[1] Miele v. Patt Quinn’s Restaurant and Bar, 2019 BCHRT 13.
[2] Day, Shelagh, and Gwen Brodsky. “The Duty to Accommodate: Who Will Benefit?” (1996), 75 Can. Bar Rev. 433, adopted by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3