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Notice: Timmins Office

Position Paper on Rights to Employment

Accessibility laws and human rights laws on the duty to accommodate persons with disabilities in Canada

 

Rights to Employment - November 30, 2016

The Issue

Equal access to meaningful career and employment opportunities and viable sources of income for people who are Deaf and hard of hearing continues to be a major barrier to increasing the standard of living and quality of life for this segment of the population.

In 2011, the employment rate of Canadians with disabilities aged 25 to 64 was 49%, compared to 79% for Canadians without a disability.[1] In 2006, the employment rate of working-age adults with a hearing disability was 47.9% - much lower than the employment rate for adults without a disability (73.6%).[2]

The Canadian Hearing Society’s Position

People who are Deaf and hard of hearing who have the skills, the education and the ability have the right to the same employment opportunities as hearing people with similar qualifications. The barriers to communication that exist in the workplace between people who are Deaf, hard of hearing and hearing can be broken down through the use of technology and implementation of communication access standards.

Rationale

As Canadians, we value the right to an inclusive and diverse society. The Canadian Human Rights Act extends the laws of Canada within the Federal sphere to uphold the principle that “all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated...without being hindered in or prevented from doing so by discriminatory practices based on...disability." [3]

This principle continues to be at the forefront of the Canadian political system. Human rights legislation across all provinces and territories in Canada have similar visions, rights and obligations. During National Disability Employment Awareness Month in October 2016, the Honourable Tracy MacCharles, Minister Responsible for Accessibility, stated in the Provincial legislature that “…increasing employment opportunities for people with disabilities…and building accessible workplaces…is a matter of fundamental importance to our society today—and our economy of tomorrow. It will expand businesses; it will grow the economy. It will diversify workplaces…We will encourage employers to hire more people with disabilities—to expand their talent pool…and strengthen their workforce.”

Businesses have started to pay attention to the government’s position due to legislation like the Accessibility for Ontarians with Disabilities Act, but more importance needs to be put on the value of creating a diverse and inclusive workplace and the impact it has on the economy and the business’s bottom line. The business case for hiring people who are Deaf and hard of hearing is strong. Human resources are the most important resources for any business. Canada is increasingly facing a talent gap – as the population ages, the workforce is heading towards retirement. According to the Conference Board of Canada, Ontario could face a shortfall of 364,000 workers by 2025.[4]

Business leaders often unduly fear the cost of accommodation and barriers to communication, safety concerns and perceived levels of skill and education.

Cost of Accommodation and Barriers to Communication

Accommodations often cost less than employers think:

  • In a widely recognized study from the Job Accommodation Network in the US, employers reported that 59% of accommodations cost nothing to make, while the rest typically cost only $500.[5]
  • Education in the workplace about accommodation needs and basic communication tips for all employees can make a workplace accessible.[6]

Many employers who have hired Deaf or hard of hearing workers soon perceive accommodations not as an additional cost, but as an investment that provides returns in the form of a dedicated, hardworking employee, with a reduction in recruitment and training costs. Studies show that employees with disabilities are often more productive than their able-bodied peers, with lower rates of absenteeism and turnover.

For example:

  • In six Tim Hortons stores employing staff with disabilities, turnover was 35% compared to the 75% industry average and in 2011, absenteeism of the employees with disabilities in these stores was zero.[7] 
  • A three-year study at Washington Mutual found a turnover rate of 8% among persons with developmental disabilities, compared to an overall rate of 45%.[8]
  • Marriott reported a 6% turnover rate among persons with disabilities versus 52% overall.[9]

Skills and Education

People who are Deaf and hard of hearing who have the skills, the education and the ability have the right to the same employment opportunities as hearing people with similar qualifications.

  • In 2013, there were 46,700 students with disabilities enrolled in colleges and universities in Ontario. Employers need to recognize the potential of a highly skilled yet underutilized labour pool of post-secondary graduates with disabilities.[10]
  • Of the 444,000 working-aged Canadians who are not working but whose disability does not prevent them from doing so, almost half (181,500) have post-secondary education.[11]

Value to the economy and business

In addition to the lower turnover and absenteeism rates mentioned in the accommodation section above, there is additional economic and business value to companies:

  • Fifth Quadrant Analytics, a New York based-organization, has an index showing that the stock price of companies with an overall accessibility strategy that includes hiring people with disabilities consistently outperform the Dow.
  • An employer has access to a larger and more dedicated pool of workers if they hire people with disabilities.
  • Hiring people with disabilities has shown to attract a more diverse customer base, which includes people with disabilities. The buying power of the disability community exceeds $40 billion in Canada and $1 trillion globally.[12] 
  • The Canadian economy will improve by decreasing dependency on unemployment insurance and disability insurance.

Legal obligation to duty to accommodate

If accommodations are needed and technology is available, then, according to law, action should be taken to reduce barriers to communication in employment. Any organization that solely discriminates against a potential employee based on disability is contravening the:

  • United Nations Convention on the Rights of Persons with Disabilities[13] – Canada and 159 other member states have signed and 168 members’ states have ratified the convention at the United Nations. Canada ratified this treaty in March 2010. The treaty aims to eradicate discrimination against persons with disabilities in all areas of life including employment, education, health services, transportation and access to justice.
  • Accessibility for Ontarians with Disabilities Act, 2005[14] - Passed unanimously in the Ontario Legislature, this Act commits the government of Ontario to create, implement, and enforce standards of accessibility with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises for the 16% of Ontarians with disabilities, including people who are Deaf and hard of hearing. A similar Act exists in Manitoba (2013). Nova Scotia legislature introduced and passed an Act Respecting Accessibility in Nova Scotia for a second reading on Nov. 3, 2016, making Nova Scotia the third province to introduce an Accessibility Act after Ontario and Manitoba. The Government of Canada is expected to introduce federal accessibility legislation in Spring 2017.
  • Ontario’s Human Rights Code[15] explicitly states that everyone has the right to be free from discrimination. The Ontario Human Rights Commission’s Policy on Ableism and Discrimination based on Disability[16] outlines the details and gives practical measures for workplaces, public transit, health and education services, restaurants, shops, and housing to provide Ontarians with disabilities equal treatment and barrier-free access. The Code prohibits discrimination based on someone’s disability in all aspects of the employment relationship. Discrimination in employment may happen when a person experiences negative treatment or impact because of their disability. Discrimination does not have to be intentional. And a person’s disability needs to be only one factor in the treatment they received for discrimination to have taken place. The Code provides that organizations (e.g. employers, service providers, and vocational associations, including unions) have a duty to accommodate disability, and other grounds, short of undue hardship based on cost, health and safety.

The Law Commission of Ontario’s (LCO) multi-year project, A Framework for the Law as It Affects Persons with Disabilities and its coinciding Final Report[17], is aligned closely with this Position Paper. The Framework recognizes the widespread experience of exclusion by persons with disabilities, and the way in which it results in their disadvantage and marginalization, including lower levels of education, employment and income.

Safety

Currently, there is no evidence that shows that there are more safety incidences with employees who are Deaf and hard of hearing than with their hearing colleagues.

  • A study by the DuPont Company[18]  showed that workers with disabilities performed significantly higher than their counterparts without disabilities in the area of safety. These studies included people in professional, technical, managerial, operational, labour, clerical, and service areas. It evaluated individuals with orthopedic, vision, heart, health, and hearing disabilities.
  • People with disabilities are very often likely to pay more attention to safety, less likely to be risk takers and more likely to follow policy.                                                                  

While most Deaf and hard of hearing Canadians can legally obtain a commercial license and drive for taxi or ride-sharing companies, for Quebec residents, that same basic right is not available. Currently in Quebec, people who are Deaf and hard of hearing are banned from holding a 4C driver’s license, preventing them from driving a taxi or ride-sharing vehicle.[19]

Under Canadian law, it is clear that if accommodations are needed and technology is available, then action should be taken to reduce barriers to communication or employment. The technology does exist for the taxi and ride-sharing industry. It is also clear that a person with a disability (e.g. hearing loss) should not be advantaged or disadvantaged according to where that person lives or works in Canada.[20]

In terms of safety, World Federation for the Deaf states that any person who has a disability that does not prevent them from executing a certain action or endangering others should have the same rights as any other person. Studies show that Deaf drivers are no more likely to be involved in car accidents than hearing drivers. This makes sense since driving is mainly a visual activity. Plus, there’s even some research to suggest that Deaf adults have better peripheral vision than hearing people. Ride-sharing service Uber actually reports that, for regions where Deaf driver-partners are able to operate, clients evaluate Deaf driver-partners higher than their hearing peers.[21]

In fact, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld a federal judge's ruling in 2006 that UPS, the world's largest private package carrier, violated the Americans with Disabilities Act by refusing to allow Deaf employees to compete for jobs driving its smaller trucks, those weighing 10,000 pounds or less.[22] Judge Marsha Berzon said in the 3-0 ruling. "We are in no way suggesting that the (law) requires employers to hire unqualified individuals with disabilities," Berzon said. But she said employers can't automatically screen out disabled applicants, and instead must offer them a chance to compete on an equal basis, with whatever reasonable accommodations they need.

In Quebec, Deaf residents are currently able to obtain a Class 1 driver’s license which enables them to operate certain heavy vehicles. Due to the weight and length of such vehicles, the risks associated with operating Class 1 vehicles are actually higher than that of a car or van and many Quebec-based drivers have been driving these safely for many years.[23]

Conclusion

It is clear that an inclusive and diverse workforce breaks down barriers to communication between people who are Deaf, hard of hearing and hearing benefits employers, employees, the general public and the economy.

To achieve accessible workplaces, we need standard provincial, territorial and national programs that:

  • educate businesses about the positive financial impact of hiring Deaf and hard of hearing employees;
  • provide employers with an enhanced understanding of disability and accessibility issues, as well as access to pool of talented, dedicated employees.
  • help employers understand that accessibility is achievable and that workplace accommodation can be affordable and effective for all employees;
  • help them understand the legislative requirements and implement them in their businesses; and
  • educate the public about effective communication between Deaf, hard of hearing and hearing people.

To make a human rights complaint, contact: Federal, Territorial and Provincial Human Rights Commissions and Human Rights Tribunals http://www.cashra.ca/links.html

To inquire about public legal education and information in Canada https://www.cba.org/For-The-Public/Public-Legal-Education-and-Information-in-Canada

 

Accessibility laws and human rights laws on the duty to accommodate persons with disabilities in Canada

International Law

United Nations Convention on Rights of Persons with Disabilities Signed and Ratified by the Government of Canada

http://www.un.org/disabilities/convention/conventionfull.shtml

https://www.un.org/development/desa/disabilities/

http://www.cashra.ca/documents/CASHRA-CRDP-brochure_print.pdf

Federal Law

Federal Disability Reference Guide

http://www.esdc.gc.ca/eng/disability/arc/reference_guide.shtml

Charter of Rights and Freedoms-Canadian Constitution, 1982

http://laws-lois.justice.gc.ca/eng/const/page-15.html

Disability Rights in Canada

http://www.canada.pch.gc.ca/eng/1448633334025

Canadian Human Rights Act, 1985

http://laws-lois.justice.gc.ca/eng/acts/h-6/

Canadian Human Rights Commission Policy on Duty to Accommodate

http://www.chrc-ccdp.gc.ca/eng/content/i-want-know-my-obligations

http://www.chrc-ccdp.gc.ca/eng/content/what-duty-accommodate-and-how-can-it-help-me

Provincial Law(s)

Disability and the Law in Ontario

http://www.lco-cdo.org/en/disabilities-threshold-paper-sectionII

Ontario Human Rights Code, 1990

http://www.ohrc.on.ca/en/ontario-human-rights-code

Policy on Ableism and Discrimination based on Disability

http://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability

http://www.ohrc.on.ca/sites/default/files/Disability%20and%20Human%20Rights%20brochure_revised_2016_English_accessible.pdf

Accessibility for Ontarians with Disabilities Act, 2005

https://www.ontario.ca/page/about-accessibility-laws

Ontario Building Code, 1992

http://www.mah.gov.on.ca/Page7393.aspx

New Accessibility Amendments to Ontario Building Code, 2012

http://www.mah.gov.on.ca/Page10546.aspx

Additional resources

Canadian Association of the Deaf, Issues and Positions, Employment and Employability, July 3, 2015

International Journal of Rehabilitation Research, “Educational attainment, labour force status and injury: a comparison of Canadians with and without deafness and hearing loss”, Kathryn Woodcock and Jason D. Pole, Lippincott Williams and Wilkins, 2008, Vol 31 No 4.


[1] Statistics Canada, December 2014

[2] Canadian Survey on Disability 2012

[3] R.S.C., 1985, c. H-6, s. 2.

[4] The Conference Board of Canada, “Ontario Employers Have a New Tool to Improve Accessibility for People with Disabilities,” Jan. 23, 2013

[5] Beth Loy, “Accommodation and Compliance Series Workplace Accommodations: Low Cost, High Impact,” original 2005, updated 2016. Retrieved from http://askjan.org/media/lowcosthighimpact.html

[6] Ontario Human Rights Commission, Policy on ableism and discrimination based on disability (Toronto: OHRC, 2016) at 64.

[7] Information provided by franchise owner

[8] Crain’s Chicago Business, April 7, 2003

[9] Talent Knows No Limits, 2012

[10] Ontario Chamber of Commerce, “Building Bridges: Linking Employers to Postsecondary Graduates with Disabilities,” 2013

[11] Till and Leonard, “A Profile of the Labour Market Experiences of Adults with Disabilities among Canadians aged 15 years or older,” Statistics Canada (2012).

[13] UN GAOR, 61st Sess., 76th Mtg., UN Doc. GA/10554 (2006)

[14] S.O. 2005, c. 11.

[15] R.S.O. 1990, c. H.19

[16] Ontario Human Rights Commission, Policy on ableism and discrimination based on disability (Toronto: OHRC, 2016).

[17] A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice – FINAL REPORT, September 2012

[18] Dupont/Australian Public Service Commission [APSC] “Ability at work: Tapping the talent of people with disability,” Canberra: Commonwealth of Australia, 2007

[19] Societe de I’assurance automobile Quebec

[20] Charter of Rights and Freedoms, Canadian Constitution, 1982

[22] Bob Egelko, “Deaf drivers due a chance at UPS jobs, court says,” SFGate, Oct. 11, 2006

[23] Societe de I’assurance automobile Quebec

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