Journal Article/Book Review
disability discrimination, disability at work, adverse effects discrimination, duty to accommodate, bona fide occupational requirement, BFOR test, innocent absenteeism, systematic accomodation
Approaching disability discrimination in systemic terms is the most fundamental challenge that disability human rights law currently faces. Achieving fundamental change in relation to disability at work necessitates challenging able-bodied norms. To that end, a social construction of disability entails adapting the environment to meet the needs of those with a variety of dis-abilities. Tackling disability discrimination requires contesting what is deemed “normal” because it is the way most able-bodied persons function, necessitating a thorough understanding of adverse effects discrimination, which looks behind purportedly neutral practices to uncover detrimental effects on those who do not function “normally”.
The fact that some disabilities preclude some kinds of work should not be extended to create employment barriers beyond what is warranted, requiring stringent assessments of bona fide occupational requirements (“BFOR”). The duty to accommodate is now part of the BFOR defence. Accommodation is about making adjustments (exceptions) to rules. If the rule is wholly invalid, one does not reach the stage of adjustment, one simply invalidates the rule. The duty to accommodate in the BFOR test should be seen as subsidiary to the overarching concept of “rea-sonably necessary”. In moving to the duty to accommodate, it is still important to think in both systemic as well as individualized terms. A systemic approach to accommodation anticipates the need for individualized accommodation, and builds in the necessary flexibility from the out-set. Examples of innocent absenteeism are used to elaborate on the notion of systemic accom-modation. In different settings, other recent examples blurring the distinction between the prima facie case of discrimination and the BFOR are problematic because such blurring weakens the scrutiny of respondents’ justificatory arguments.
Full integration of disabled workers largely depends on the extent to which systemic approaches to disability discrimination can be incorporated into anti-discrimination law.
Notes from Prof. Pothier
This is a substantially expanded version of a paper which was the basis for a presentation at a conference on "The Charter and Human Rights: 25 Years Later" held at the University of Western Ontario, London, Ontario on 27 October 2007. The author would like to thank Bruce Archibald, Richard Devlin, William Lahey, Michael Lynk, Sheila Wildeman and the late Innis Christie for their helpful comments on earlier drafts.
Dianne Pothier, "Tackling Disability Discrimination at Work: Toward a Systematic Approach" (2010) 4:1 McGill JL & Health 17.