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Submission on Preventing & Removing Barriers for Ontarians with Disabilities: a Discussion Paper
"Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world"
On this 50th anniversary of the Universal Declaration of Human Rights, it is disappointing to review the Ontario government's discussion paper on disability issues and realize that we are still fighting for basic human rights.
The employment situation for the 4.2 million Canadians with disabilities is filled with bleak job prospects and inadequate legal protection. Just 48 per cent of working-age Canadians with disabilities were employed, compared with 73 per cent of those without disabilities according to the 1991 census. About 17 per cent of unemployed persons with disabilities reported that they had been refused employment within the last 5 years because of their condition, while another 16 per cent said they had been dismissed from a job because of their disabilities. About 60 per cent of working-age Canadians with a disability receive under $10,000 per year in income.
Your government made an election promise to bring in an Ontarians with Disabilities Act. More than three years later, we are still waiting. When it came to your promise to gut labour legislation, action was swift. When it came to your promise to punish welfare recipients, action was swift. The employment equity legislation, which would have directly benefited people with disabilities in the work force, was repealed in a matter of weeks. But when it comes to bringing in legislation to actually help people, who have been hurt by your cost cutting obsession, action is delayed and delayed.
The CAW represents 140,000 workers in Ontario. We have a long history of challenging discrimination and promoting equality. Achieving fairness in the workplace has meant an ongoing struggle both with corporations and, increasingly, with the government.
The CAW has bargained joint labour-management equity programmes with many employers which cover people with disabilities. We first bargained an equity programme in 1984 at GM, followed by Chrysler and Ford in 1987. Since then we have bargained programmes with a number of employers.
Our successes include: language in our collective agreements which allows for special placement of injured and/or disabled workers, TDD phones to help our hearing impaired members communicate with their families and others and the right to refuse to work when being harassed based on disability.
If there is one thing these efforts have taught us, it is that voluntary programs don't deliver adequate change. Unless employers face meaningful sanctions, barriers will never disappear.
We question the sincerity of a government who quietly releases a consultation paper in July and wraps up its limited hearings by September. In addition, segregating the disability advocacy groups from other presenters further limits the effectiveness of the consultations. The closed door process that is taking place will not help an integrated response to removing barriers.
The discussion paper leaves us with the status quo. The status quo is unacceptable. Millions of people with disabilities are effectively excluded from the workplace.
It is not that discrimination is legal. The Ontario Human Rights Code has prohibited discrimination based on handicap since 1981. The equality guarantees of the Charter of Rights and Freedoms have been in place since 1985. An obligation to re-employ injured workers has existed under workers compensation legislation since 1989. The problem is that laws based on individual, case-by-case enforcement are wholly inadequate to challenge widespread systemic discrimination against people with disabilities.
The law is clear: employers have a legal duty to accommodate employees and prospective employees who are disabled. This obligation applies unless the accommodation is so costly or problematic that it would create an undue hardship for an employer. Something positive must be done to make the law a reality.
In Ontario, on the heels of repealing the Employment Equity Act, your government brought in the Equal Opportunity Plan. This plan was voluntary and non-legislative. We submit that it has made no measurable difference for people with disabilities.
There are more complaints to the Human Rights Commission on the basis of disability than on any other ground. Over 75 per cent of disability complaints relate to employment. The Commission's 1997/1998 Annual Report states:
Discrimination against people with disabilities, particularly in the workplace, remains one of the most intractable problems the Commission works to address. It also constitutes a higher proportion of our caseload than any other single ground of discrimination.
The report goes on to claim that significant successes were achieved on the litigation front and yet of the three cases reported, two were settlements and one is a court decision under appeal. All three of these cases took significant time to reach these resolutions, not making any dent in the systemic barriers people with disabilities face.
You have placed a fatal pre-condition on your consultation: any initiative must be voluntary. This dooms any legislation to failure. We have learned from the Federal Employment Equity legislation and from our own bargaining experience that results only happen when there are clear measurable goals and consequences for failing to achieve that goal.
A complaint based model alone will not bring about change. A systematic strategy of ensuring access will be more successful than the adversarial, after-the-fact approach resulting from human rights complaints.
Experience in other jurisdictions has proven this can be done. Around the world there are models for successful and practical equality measures for people with disabilities. These range from the grant-levy system to a quota system. One of the factors which links these models is the requirement for positive action. Waiting for and addressing individual complaints is not only hard on those who carry the burden of complaining but also often does not result in a broad-based remedy.
Employers should be required to review their employment policies and practices along with the bargaining agent where one exists and determine whether they contain barriers to people with disabilities. A plan can then be made for eliminating these barriers. Putting together a strategy and committing to clear goals for eliminating these barriers is the best way to measure whether progress is being made.
We want to play an active role in bringing an end to discrimination against people with disabilities. In the workplace, we can do that by sitting down with the employers to review employment systems for barriers and set up a plan to remove those barriers. Legislation to remove barriers must specifically involve the bargaining agent where one exists in the workplace.
Although our focus in this presentation has been on employment, we recognize that action must be taken on the connected issues of education and training opportunities, accessible transportation, housing options, home care, assistive devices and health care. In particular we support the recommendations of Transportation Action Now for an accessible transportation system for people with disabilities. The solutions for removing barriers must be broad based.
When the workforce truly represents the community, when there is in the workforce greater respect for individual differences, when human rights are vigorously defended, and when the workforce accommodates the needs and abilities of the individual, then all workers benefit. The government should not stop at requiring positive change only for people with disabilities. You must recognize that positive change must also be made for others who, because of intentional or systemic discrimination, are under-represented in the workforce including people of colour, aboriginal people and women.
To paraphrase Justice Abella, the obstacles in the way of people with disabilities are so formidable and self-perpetuating that they cannot be overcome without intervention. The public supports such intervention. A 1997 Thompson Lightstone poll found that 75% of Ontarians agree that "there should be a law which specifically requires that barriers to people with disabilities be identified and removed in the workplace."
We cannot continue to exclude such a significant component of our potential workforce. We ask that you abandon the fatal parameters you have set for this legislation and prepare and pass a strong and effective Ontarians with Disabilities Act.
Let's make equality happen.