Just as students were headed back to school, a vigorous debate was unfolding on the pages of our national papers about the accommodation of students with mental health disabilities. Unfortunately, this debate has been dominated by professors and columnists whose expertise lies outside human rights law and whose opinions do not adequately take into account the lived experience of discrimination.
This week the Ontario Human Rights Commission (OHRC) released a policy statement reinforcing what the Supreme Court of Canada has repeatedly affirmed: that employers, landlords and service providers have a legal duty to accommodate the needs of people protected under human rights laws.
Accommodation means adjusting policies, rules, requirements and/or the built environment so that historically marginalized groups have equal opportunities. Most accommodations are uncontroversial: installing ramps, providing sign language interpretation, designating gender-neutral washrooms, allowing service dogs in public spaces, or providing private areas for breastfeeding.
Those who deride accommodation tend to focus on evolving areas of the law, such as accommodation of students with mental health disabilities, to raise alarm bells about Canada becoming a nanny state. They imply that the human rights enterprise will ultimately result in a society of coddled people who cannot withstand the harsh and competitive reality of the modern world.
Just because a professor might prefer a student who does not require additional time on an exam, does not make the absence of mental disability an essential qualification.
This is simply not true. Accommodation does not require “lowering” essential qualification standards. Once a student’s human rights-related needs are accommodated, they must be able to meet the essential requirements of their academic program. If they cannot, they can face negative consequences the same as any other student.
At its core, the current debate is really about whether seemingly neutral requirements are essential. For example, law professors have traditionally tested knowledge, critical thinking and problem-solving by requiring students to complete a time-limited final exam worth 100 per cent of the student’s grade. Given this historical practice, it is not particularly surprising that some professors complain about accommodations that allow students with mental health disabilities additional time. But, if we agree that there are many ways of testing knowledge, critical thinking and problem-solving (the essential skills), then these accommodations are entirely appropriate. Indeed, this is why many law professors now assign 24-hour, take-home exams.
(On the flip side, since the essential qualification for an athlete competing in a 100-metre dash is speed, an accommodation that affords additional time would neither be appropriate nor required under human rights law.)
The hard truth is, not all subjectively desired qualifications are objectively essential. Just because a professor might prefer a student who does not require additional time on an exam, does not make the absence of mental disability an essential qualification. Instead, a careful, good-faith inquiry into the truly necessary qualifications must be undertaken.
Failure to appreciate this important difference is itself the result of stereotyping and persistent stigma that subtly reinforces the view that historically disadvantaged groups are less capable of performing a wide variety of functions in our society or less desirable as students or employees. In fact, much of the OHRC’s work focuses on objective requirements that nonetheless result in negative outcomes for groups protected under Ontario’s Human Rights Code.
While this may be threatening to those who have historically had a stronghold on privilege, our laws require organizations to assess people as individuals. Organizations must take stereotypes, personal preferences and institutional culture out of the equation. Each person should be able to obtain an education suited to their skills, interests and abilities, even if they have legitimate needs that must be accommodated.
Inclusion is in our interests as a society — accommodation is a practical way to allow diverse people to meet their full potential and contribute to our collective prosperity.
Failure to create safe and welcoming educational institutions for diverse people reinforces marginalization and can result in poverty and a greater reliance on the social safety net. Statistics Canada data shows that people with disabilities are less likely to have a university degree or participate in the labour force, and more likely to be unemployed or have a low income.
The legal protection of equality has played an important role in creating the Canada that so many people around the world look to for leadership. That is why we cannot be sidetracked by debates that cast students who require accommodation as burdens on otherwise high-functioning academic institutions. Such debates are divisive and underestimate the huge potential that we can harness if everyone has a stake in our future.
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Author: Renu Mandhane