On June 18, 2014, The Ontario Human Rights Commission (OHRC) released its new  Policy on preventing discrimination based on mental health disabilities and addictions (the “Policy”). The Policy builds on the OHRC’s Policy and guidelines on disability and the duty to accommodate, and focuses on the protection of, and the duty to accommodate the needs of, individuals with mental health disabilities and addictions (referred to in the Policy inclusively as “psychosocial disabilities”).

The Policy is the result of extensive consultations with approximately 1,000 individuals with mental health issues or addictions, as well as employers, service providers, housing providers, advocates and families. The Policy sets the standard for how individuals, employers, service providers and policy makers should act to ensure compliance with the Ontario Human Rights Code (the “Code”). Although the Policy does not have   the force of law, it represents the OHRC’s interpretation of the Code as it relates to individuals with psychosocial disabilities, and will likely be given great deference by the Human Rights Tribunal of Ontario (HRTO) and/or the courts in any decision-making on this issue.

What constitutes a psychosocial disability?

The Code protects people with psychosocial disabilities from discrimination and harassment under the ground of “disability.” According to the Policy, even mental health disabilities that may be experienced or perceived as minor, with no permanent manifestation, may be entitled to protection under the Code. The Policy does not provide a singular definition or a definitive list of psychosocial disabilities, but does offer the following guidance:

  • Psychosocial disabilities encompass mental health disabilities and addictions.
  • Psychosocial disabilities differ from cognitive, intellectual and sensory disabilities, as well as learning disorders.
  • Addictions and post-traumatic stress may constitute psychosocial disabilities.
  • A disability is psychosocial where an individual’s mental condition makes them subject to social stereotyping, stigmatization and marginalization by others.
  • Persons with psychosocial disabilities may be subject to attitudinal and environmental barriers that hinder full participation by individuals with these disabilities.

Identifying  Barriers

According to the Policy, the barriers faced by individuals with psychosocial disabilities are largely due to stereotypes that marginalize these individuals on the basis of presumed group characteristics. Examples of such marginalizing stereotypes include:

  • Defining individuals entirely by their disability (e.g., characterizing someone as a “mentally ill individual” rather than an “individual with mental illness”);
  • Assuming that individuals with psychosocial disabilities are violent or aggressive without objective evidence of such behaviour;
  • Adopting an “ableist” attitude, which generally presumes that individuals with disabilities are less worthy of respect; and/or
  • Perpetuating “self-fulfilling prophecies” through organizational cultures that marginalize individuals with psychosocial disabilities while making such marginalization seem natural.

According to the Policy, a barrier-free approach requires treating individuals with psychosocial disabilities with the same respect and accommodation as individuals experiencing a physical illness.

Areas of Concern for Service Providers

The Policy references a number of ways in which the rights of individuals with psychosocial disabilities may be engaged in a health care environment, including  the following:

  • Patient profiling - particularly where patients with psychosocial disabilities may be flagged as security concerns on the basis of their disability alone; and
  • Findings of incapacity - particularly with respect to determining whether there is sufficient objective evidence for making such findings.

Areas of Concern for Employers

The Policy references a number of ways in which the rights of individuals with psychosocial disabilities may be engaged in a work environment, including  the following:

  • Systemic discrimination or poisoned workplace environments - particularly where such environments prevent or hinder individuals with psychosocial disabilities from expressing their needs to employers; and
  • Access to employment - particularly with respect to ensuring that it is feasible for individuals with psychosocial disabilities to apply for employment, retain employment, and/or advance in employment.

Adopting a Proactive Approach

The Policy encourages employers and service providers to be proactive in anticipating and addressing the needs of people with psychosocial disabilities. Being proactive means that organizations can be responsive when  needs or issues come to their attention, and minimize disruption and aggravation for everyone. Elements of a proactive approach include:

  • Developing accommodation policies and processes in advance, and with the benefit of suitable consultation/research,  rather than providing hurried and “one-off accommodations” as needs arise. When organizations develop multiple accommodation options that respect the dignity of individuals with disabilities, the Code permits the adoption of the most cost effective options.
  • Inquiring appropriately into possible cases of undisclosed psychosocial disabilities. The Policy confirms that there is a “duty to inquire” in circumstances where organizations have reason to believe that an employee or service user is experiencing a psychosocial disability. Such reasonable belief may stem from observing that an individual is “clearly unwell” or has undergone a “severe change” in behaviour. Once an organization has fulfilled its duty to inquire, accommodation will only be required if the service user or employee confirms or discloses a need.
  • Gathering objective evidence. In line with the Canadian Standards Association’s national standard Psychological Health and Safety in the Workplace, the Policy recommends that organizations collect qualitative and quantitative data to support their policies  and practices. An evidence-based approach helps to ensure that policy and process development are not based upon stereotypes or discriminatory assumptions. Regularly updating research further ensures that organizations are prepared to address and respond to the evolving nature of psychosocial  disabilities.

General Best Practices

The Policy sets outs best practices for ensuring that proactive approaches are effective in addressing the needs of individuals with psychosocial disabilities, including both service users and employees. These general and specific best practices include:

  • Developing a general organizational “Human Rights Strategy” that addresses barriers faced by individuals with psychosocial disabilities. Such a strategy should include:
    1. a barrier prevention, review and removal plan;
    2. anti-harassment and anti-discrimination policies;
    3. an education and training program; and
    4. an internal complaints procedure.
  • Using an “Inclusive Design” to promote the full participation of individuals with psychosocial disabilities whenever new policies are developed or when existing policies are revised.
  • Ensuring that communications within the organization adopt respectful language and avoid stereotyping when referring to individuals with psychosocial disabilities.
  • Maintaining individuals’ confidentiality throughout the process of accommodation.
  • Providing accommodation for the competing rights of others.

Examples of Best Practices for Service Providers

  • Flagging patients as security concerns should only be done if and when objective, person- specific evidence supports that conclusion. Otherwise, such potentially stigmatizing actions should be avoided.
  • Refraining from assuming that individuals with mental illness and other psychosocial have difficulty with decision making capacity. Objective evidence supporting the legislated criteria for findings of incapacity and involuntary hospitalization must be present, as required by existing mental health legislation.
  • Facilitating trust and open communication between service users and service providers. For service providers, this includes regular access to information and training on psychosocial disabilities. For service users, this includes an accessible complaints mechanism.
  • Accommodating people with psychosocial disabilities. Such accommodations may include:
    1. Providing multiple ways to access services including by phone, in person and via electronic resources.
    2. Modifying rules around deadlines and strict appointment times where non- compliance and non-attendance can be shown to be linked to a disability.
    3. Providing extra time to a service user.

Examples of Best Practices for Employers

  • Adopting progressive performance management and other processes that afford opportunities for employees to disclose their needs and participate in the development of appropriate accommodations while meeting employers’  expectations.
  • Engaging labour unions in the accommodation process, as unions share responsibility for this process alongside employers.
  • Avoiding intrusive employment practices whenever possible. Specifically, the Policy calls for a “genuine effort” on the part of employers to provide accommodation without requiring employees to disclose confidential medical information or undergo an independent  medical examination. More intrusive measures should only be adopted where it can be shown that they are necessary and directly relevant to providing an accommodation.
  • Accommodating people with psychosocial disabilities to the point of undue hardship. Such accommodations may include:
    1. Providing alternative ways of communicating with the employee.
    2. Allowing for more training or training delivered in a different way.
    3. Allowing a flexible work schedule.
    4. Provide job coaching.

Concluding Remarks

While the Policy does not create any n​ew obligations  for service providers and employers, it does help clarify Code-related protections and obligations in relation to individuals with psychosocial disabilities, such as mental illness and addiction. The Policy also helps service providers and employers to be proactive and avoid human rights complaints.

A copy of the policy can be ​found at: www.ohrc.on.ca/en/book/export/html/11238 ​​

Authors

Wendy Whelan 
WWhelan@blg.com
416.367.6493

Barbara Walker-Renshaw 
BWalkerRenshaw@blg.com
416.367.6744

Expertise

Labour and Employment
Labour and Employment Law