Reprinted from "Stigma & Discrimination" issue of Visions Journal, 2005, 2 (6), p. 7-9
Twenty years has passed since the proclamation of Section 15 of the Canadian Charter of Rights and Freedoms, guaranteeing legal equality to all Canadians, including those with mental disabilities. While society as a whole may still have a long way to go before people with mental illnesses are treated with the level of respect and dignity they deserve, our human rights laws have helped us understand stigmas associated with mental illnesses and have helped set rules that restructure employment and service relationships with the ultimate goal of inclusivity.
Defining mental disability
For people with psychiatric disabilities, it is important to know that all human rights decisions that apply to other protected groups, such as race, sex, and so on, also apply to them. In a case called Gibbs v. Battlefords and District Co-operative (1996), the Supreme Court of Canada ruled that an insurance company’s policy of providing long-term disability benefits to the age of 65 for those with physical disabilities, but for only two years to those with mental disabilities unless they were institutionalized, constituted discrimination. The ruling specified that all groups protected in the human rights legislation must receive equal treatment.
Although mental disability is included as a protected ground in the BC Human Rights Code, it is not defined in our legislation.3 Therefore, it is necessary to turn to other jurisdictions and to the existing case law for definitions. One of the most comprehensive statutory definitions is that found in the Saskatchewan Human Rights Code; Section 2(1) defines disability and specifically includes reference to “mental disorder.”
The following test, taken from The Law of Human Rights in Canada: Practice and Procedure, has been approved and applied in many human rights jurisdictions.5 The test says that a mental condition should be considered a disability for human rights protections where it meets all the following criteria: 1) it prevents the person from performing significant functions that can be performed by most people; 2) it is ongoing in nature; and 3) it is beyond the person’s control.
The courts have determined that alcohol and drug addiction constitute a mental disability for the purposes of human rights legislation as well. A stress-related disorder may—but still will not necessarily—amount to a disability. It is a factual question as to the impact on the individual’s capacity to function. In many cases, stress may signal—or even mask—a larger mental disorder.
Accommodations and standards
The first step towards inclusivity was the development of the concept of reasonable accommodation. As an equality concept, accommodation seeks to build inclusive environments that respect differences and rights in a diverse society. As a process, accommodation seeks to resolve conflicts by balancing rights and interests. The goal of accommodation is to enable the full and equitable participation of all members in society. Today, the concept of accommodation is better known by the term ‘duty to accommodate’ which is the legal phrase arising out of human rights legislation and case law in Canada.
In the case of the University of British Columbia v. Berg (1993), the Supreme Court of Canada upheld the right to accommodation when it found the university had discriminated against the complainant by providing her with limited service because she had bipolar disorder. Prior to the adoption of Section 15 of the Charter, employers were able to design occupational requirements that effectively excluded people with disabilities.
Balanced against the duty to accommodate is the notion of bona fide occupational requirement, or the standard one needs to meet in order to reasonably perform a job, or receive a service such as obtaining a driver’s licence. The Supreme Court of Canada has ruled that standards in service and employment must meet a three-part test: the standard must have a connection to the work to be performed; the employer or service must have an honest belief that the standard is necessary for the work to be performed; and the standard must be one of reasonableness: i.e. the employee can do the work reasonably well. In addition, this court has stated that an employer must show it is impossible to accommodate an employee with a disability before it is appropriate to end the employment relationship.
Attitudes a step behind
While these concepts and definitions are moving things forward on the road to equality, negative stereotypes and attitudes continue to interfere with judgment around dealing with people with mental disabilities.
A case we settled recently serves as a typical example of how lack of understanding and poor judgement can manifest as discrimination in the workplace. Our client had re-entered the workforce after an extended absence due to bipolar disorder. He had an outstanding performance record and had no problems meeting job requirements or standards in his new position. Unfortunately, his co-workers perceived some of his behavioural traits as ‘weird’ and expressed a collective fear to management that his illness would likely prevent him from meeting agreed-upon sales targets. Management, thinking they would boost the morale of others, fired our client. When the employers were asked at mediation whether they allowed racist or sexist concerns to influence hiring or firing decisions, they were quick to realize how their judgement had been influenced by nothing more than negative stereotypes and fears around mental illness. Management accepted responsibility for the discrimination, and as part of the settlement, agreed to educate themselves and their workforce on working with people with disabilities.
Accommodation balancing act
Beyond settlements, numerous decisions from courts, tribunals and labour arbitrators continue to send strong signals to employers indicating that those with mental illnesses are to be accorded the same right to an accommodation as those with physical disabilities. Recent cases are frequently about fine-tuning the balance between all parties’ rights and obligations with regards to the accommodation process. Perhaps the most controversial of these is the Gordy v. Oak Bay Marina (2004) decision.
This case involved a situation where a fishing guide was terminated from his position at Oak Bay Marina after entering a manic phase of his illness, bipolar disorder. Oak Bay Marina argued that assuming the safety risk of continuing to employ the guide would amount to undue hardship. The BC Human Rights Tribunal disagreed, noting that the employer had no accurate information about bipolar disorder or the likelihood of a relapse.
Oak Bay Marina appealed the decision to the Supreme Court of BC, which set aside the tribunal’s decision, finding that the tribunal had erred when it failed to consider the personal observations of two Marina managers. The BC Court of Appeal upheld this decision, agreeing that Oak Bay Marina was entitled to rely on the personal observations of its employees with respect to the Mr. Gordy’s condition. The court referred the case back to the tribunal for reconsideration.
After all this, the BC Human Rights Tribunal came back to its initial decision: it agreed that the company’s knowledge of Mr. Gordy’s condition “justified a concern” and could form part of a risk assessment, but that the duty to accommodate required Oak Bay Marina to undergo a full assessment, which included educating itself about bipolar disorder in general, and the risk of relapse in particular, before being able to properly assess the risk.
Because accommodation is an individual right, it often comes into conflict with management policies and programs that are designed with a ‘one-size-fits-all’ approach. There is a lot of case law around attendance-management programs that adversely affect workers with mental illnesses, who may require more time away from work to attend to their disability. Equally challenging are labour arbitrations that seek to balance the rights of parties when disciplinary measures appear unfair and inequitable given that conduct may be symptomatic of a specific mental health condition.
Although the outcome of each claim rests on a unique set of facts, there is a growing recognition that a one-size fits-all system and structure is not appropriate given the diversity of today’s workforce. There is also a growing recognition and acceptance that accommodation is a multiparty process.
To avoid pitfalls, it is important that employees keep their employers properly informed about their medical condition and accommodation requirements, and it is equally important that employers engage in individualized assessment in order to reach the most appropriate accommodation.
A workplace rule or practice that conflicts with an individual’s right to be free from discrimination must be modified or adjusted without affecting the employer’s right to a productive workforce. Where capabilities are restricted by a disability, increasing permitted time off or restructuring certain job components may be required to allow the disabled person to apply their skills and abilities on an even playing field while making a contribution to the workforce.
One challenge for human rights law is to continue to move beyond the concept of “freedom from discrimination.” Today, many of the decisions coming from our courts and tribunals in relation to mental disabilities speak to a “right to equality”; a right that is positive, proactive and implies a high standard on our institutions, workplaces and services to design and deliver appropriate systems, rather than relying on the affected individuals to fight for equality case by case. A right to equality in 2005 should be an expectation, not a surprise.
Publicly funded human rights clinic
The BC Human Rights Coalition and the Community Legal Assistance Society jointly operate a publicly funded human rights clinic. The clinic provides initial and summary advice regarding human rights issues, as well as assistance in pursuing a complaint under the BC Human Rights Code. Full representation, provided by advocates and lawyers who specialize in human rights law, is available to those that have lodged a complaint with the BC Human Rights Tribunal. This clinic service is available province-wide at no cost to individuals. Whether you decide to file a human rights complaint or simply want some help or suggestions with issues related to your situation, you can call the BC Human Rights Coalition for information and assistance: (604) 689-8474 in Vancouver or toll-free at 1-877-689-8474
For specific information on the complaint and hearing process, please see our Guides and Information Sheets section of www.bchrt.bc.ca
Frequently asked questions
What is Discrimination?
Discrimination is when a person is treated unfairly, harassed or denied something because of the group they belong to, or because they have a certain characteristic. Under the BC Human Rights Code, it is against the law to discriminate against someone because of any one or more of the following characteristics (these characteristics are called protected grounds):
race (including colour, ancestry or place of origin)
political or religious beliefs
marital or family status (including being married or single, being a parent, or simply who you’re related to)
physical or mental disability
sex (being female, male or transgendered; pregnancy; breastfeeding in public
sexual orientation (being lesbian, gay, heterosexual or bisexual)
age (where a person is between 19 and 65 years of age)
a criminal record unrelated to their employment
When am I protected from discrimination and harassment?
You are protected from discrimination and harassment when you’re:
applying for a job
attending school or some other educational institution
looking for a place to live
renting or buying property
wanting to access a service or buy a product that is available to the public
Under the Code, the BC Human Rights Tribunal is responsible for accepting, mediating, resolving and adjudicating complaints of discrimination. Publicly funded clinic programs have been established to provide assistance and representation to individuals involved in complaints, and the Ministry of the Attorney General is responsible for developing and conducting education programs.
source for this sidebar item: Mahil, H. (2001). Mental Illness and Human Rights. Visions: BC’s Mental Health Journal, 1(13), 44-45).
About the Authors
Senator Kirby is Chairman of the Standing Senate Committee on Social Affairs, Science and Technology. The committee has been engaged in studying various aspects of Canada’s health care system since 1999
Constitution Act, 1982 [en. by the Canada Act 1982 (UK), c. 11, s. l], pt. 1 (Canadian Charter of Rights and Freedoms). Retrieved June 23, 2005, from laws. justice.gc.ca/en/charter.
Gibbs v. Battlefords and District Co-operative (1996), 24 CCEL 167 (SCC).
British Columbia Human Rights Code, [RSBC 1996] Chapter 210. Retrieved June 23, 2005, from www. qp.gov.bc.ca/statreg/stat/ H/96210_01.htm.
Saskatchewan Human Rights Code, SS 1979, c.S-24.1. Retrieved June 23, 2005, from www.qp.gov. sk.ca/documents/English/ Statutes/Statutes/ S24-1.pdf.
Zinn, R. & Brethour, P. (1998). The Law of Human Rights in Canada: Practice and Procedure. Aurora, ON: Canada Law Book.
University of British Columbia v. Berg (1993), 2 SCR 353, 18 CHHR D/3.
British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU) (1999), 35 CHRR D/257 (SCC); British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (2000), 36 CHRR D/129 (SCC).
This is an example of a typical case. It has been settled recently, and as part of the agreement, the parties cannot be named.
Gordy v. Oak Bay Marina, dba “Painter’s Lodge” (No. 2) (2004), BCHRT 225.