Perspectives on Disability, Discrimination, Accommodations, and Law (Law and Society (New York, N.Y.).)

Law and Society Recent Scholarship

Edited by Eric Rise

A Series from LFB Scholarly

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Perspectives on Disability, Discrimination, Accommodations, and Law A Comparison of the Canadian and American Experience

Wayne Thomas Oakes

LFB Scholarly Publishing LLC New York 2005

Copyright © 2005 by LFB Scholarly Publishing LLC All rights reserved. Library of Congress Cataloging-in-Publication Data Oakes, Wayne Thomas, 1954Perspectives on disability, discrimination, accommodations, and law : a comparison of the Canadian and American experience / Wayne Thomas Oakes. p. cm. -- (Law and society) Includes bibliographical references and index. ISBN 1-59332-073-6 (alk. paper) 1. People with disabilities--Legal status, laws, etc.--United States. 2. People with disabilities--Legal status, laws, etc.--Canada. I. Title. II. Series: Law and society (New York, N.Y.) KDZ2049.O25 2005 342.7108'7--dc22 2005012795

ISBN 1-59332-073-6 Printed on acid-free 250-year-life paper. Manufactured in the United States of America.

Table of Contents Preface Acknowledgements Chapter I

vii ix

Equality and Rights for Persons with Disabilities

Introduction Overview of Book Chapters Chapter II

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Theoretical Perspectives on Disability Protections

Introduction Libertarian Approach to Equality Efficiency and Equality A Utilitarian Approach to Equality Equality of Resources Capabilities Approach to Equality Equality: Acknowledging the Role of Experience Chapter III

9 11 12 18 24 33 40

Constitutional, Statutory and Legal Framework

Introduction The Constitution of the United States Federal Legislation Defining Covered Disability Defining Impairment Substantial Limitation of a Major Life Activity Establishing Discrimination Summary Canadian Statutory Background Charter of Rights Human Rights Legislation Employment Equity Legislation Statutory Definitions of Disability Assessing the Degree of Impairment Reasonable Accommodation Establishing Discrimination Summary v

47 48 50 51 52 53 55 64 64 65 70 71 73 77 80 82 86

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Chapter IV Comparative Evaluation of American and Canadian Employment Disability Laws Introduction Constitutional Protections The Definition of Disability Substantial Impairment versus Measurable Impairment Mitigation Measures and Palliative Devices Reasonable Accommodation The Role of Cost Benefit Analysis The Extent of Accommodation Reassignment As A Reasonable Accommodation Conclusion

87 88 94 97 111 131 132 142 150 160

Chapter V Access To Higher Education and the Professions for Persons With Disabilities Introduction Statutory Protection and Access to Higher Education Stigmatization and Disability Access to Universities and Colleges Flagging Non-Standard Test Scores Learning Disabilities and Reasonable Accommodations Academic Accommodations and the Substantially Limited Clause Breach of Contract and Breach of Promises to Accommodate Judicial Deference Toward Academic Decision Making How Much Deference? And Implications Access to the Professions and Professional Examinations Conclusion

163 164 167 170 170 174 182 193 197 204 213 231

Chapter VI Concluding Remarks

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Cases Referenced Bibliography Index

237 251 269

Preface The initial thoughts about writing this book were first developed during a seminar on disability law in Hartford, at the University of Connecticut School of Law. These ideas were developed further in Toronto, Canada, and finally these observations coalesced into this book while I was working in West Hartford, Connecticut. The purpose of this book is to examine the law of disability discrimination within the United States and Canada. Comparisons are drawn between the statutes and case law in the two countries with respect to anti-discrimination issues. Due to the tremendous breadth of issues involved in undertaking such comparisons, this effort sought to limit the scope of this evaluation to employment discrimination, accommodation for disability and access to higher education and the professions. The foremost argument herein is that disability protections within the United States, specifically those offered by the Americans with Disabilities Act, have failed in large part to achieve many of its stated objectives. The first and foremost failure of US disability law is the fact that almost all plaintiffs lose their discrimination cases and defendants almost always prevail. The nature of this divide is exceptionally marked. The courts consistently find that plaintiffs with disabilities are not disabled within the meaning of the relevant statutes or that the requested accommodations are too significant, expensive or intrusive. Plaintiffs must overcome a multifaceted definition of disability, weaving through an obstacle course that will often find them either too disabled to qualify for accommodations or insufficiently disabled to be eligible for statutory protection. Consequently, there are important lessons for Canadian policy makers interested in devising similar laws for Canada and its various jurisdictions. Similarly, US policymakers may be interested in using their authority to refurbish the functions of their relevant disability statutes. In the end, the means by which society regards equality as it relates to disability is a larger reflection of how society respects questions of equality generally. The discussion contained within this effort commences with a review of the theoretical foundations upon which disability law is structured upon. I argue that these different theories form the basis upon which disability and anti-discrimination legislation are based. An amalgam of market-based, capabilities and rights-based theories have produced law and jurisprudence in the United States that limits the capacity of people with disabilities to obtain judicial remedies. Canadian statutes, vii

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administrative tribunals and courts have developed a broader conception of disability and a wider understanding of appropriate accommodations and resolutions than exists in the United States. This broader conception has resulted in a set of holdings more favourable to those with disability claims involving employment discrimination. Similar findings were also found in an examination of cases dealing with access to higher education and the professions. US courts have been, in large part, quite unfriendly to disability claims involving access to higher education, preferring to defer to the decisions of academic decision makers. Few Canadian holdings deal with these issues. It will be interesting to see how Canadian courts deal with similar cases when they do inevitably arrive before them. The examination described herein concludes that the ADA may need amendment by Congress to improve its effectiveness as an antidiscrimination statute. Similarly, Canadian provinces should consider passage of proactive legislation to improve the effectiveness of the human rights laws used in Canada. The lack of legislation dealing specifically with the removal of architectural barriers is one of the more serious deficiencies in Canadian disability law.

Acknowledgements Many people have read all or parts of this work and offered comments on it. I am especially indebted to law professors Eric Tucker, Janine Benedet, Roxanne Mykitiuk, lawyer, philosopher and professor Jerome Bickenbach of Queen’s University and attorney David Baker for each of their observations and comments. I wish to thank all those who encouraged me during the time I was engaged in this project, including everyone in Ontario, Canada, and those in Connecticut and New York. Thanks goes to all who assisted in any fashion. I also thank my mother and father for tolerating me during the time I have been around their home. I also dedicate this work to my father who passed on during the latter stages of this study. During the initial stages of this research, financial support for this exposition was received from the McLaughlin Foundation, the Willard Estey Fellowship and the Arthur Brunskill Fellowship. This support was essential and greatly appreciated and a particular thank you is extended to those in charge of each of these excellent programs. The theories and cases discussed herein were selected by me as appropriate given the specific content discussed. I tried to discuss these cases in a responsible manner; professional responsibility is important to me. Insights, comments and criticisms, including suggestions on additional specific cases for discussion were beneficial and invariably necessary. From time to time, it was determined that suggested cases were not an appropriate fit given the materials discussed within the book. Occasionally, critical comments were waived. I also may have missed some interesting cases; there are so many. For such evaluations as well as the existence of any remaining errors, the responsibility is, of course, all mine.

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CHAPTER 1

Equality and Rights for Persons with Disabilities Introduction The principles of dignity, perceptions of equality and the reach of human rights can be very divisive. Nonetheless, although our society is divided along lines of ethnicity, race, religion and gender, there is broad agreement about the need for tolerance, some type of equality or some protection against discrimination on these and other grounds. This broad consensus, however, breaks down when it comes to persons with disabilities. Those with disabilities are frequently offered only the most superficial acknowledgment as a group that suffers discrimination and is entitled to protection. Covert hostility and paternalism permeate public perception and judicial attitudes. As a result, so-called protections and remedies have often produced what amounts to a judicial endorsement of inequality.1 The purpose of this book is to examine and compare the treatment of disability issues in Canada and the United States. Divisive attitudes toward extending rights to those with disabilities exist in both countries, however, there are differences in treatment that merit discussion. These differences are more than interesting. They can be instructive to those seeking to participate in the process of developing more effective protections within our society.2 I recently discussed the notion of

1

While the focus of the discussion contained herein is on anti-discrimination legislation, it is important to acknowledge that the broader discipline of disability law encompasses much more than discrimination issues. Disability law also involves income support, assistive device funding, health care, worker compensation, social security, pensions, communication, transportation and a wide variety of other necessary services. It also involves the acquisition and maintenance of funding for these services. These issues are beyond the immediate topic of this book. 2 The legal citation form used in most of this book is consistent with the “McGill Guide,” the standard guide for legal citation in Canada. The only

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accommodations for those with disabilities with a student who was studying at one of the leading US law schools. He expressed outrage at the idea of protections and accommodations for the disabled. He maintained that legislation such as the Americans with Disabilities Act (ADA)3 was entirely unwarranted, that persons with disabilities were complainers, lazy and sniveling fakers, constantly seeking undeserved privileges. People with disabilities were “ripping off’ the rest of society. Surprisingly, these negative sentiments are not uncommon even among educated elites, some of whom may eventually sit on the bench. Of course, only a few are willing to openly articulate such adverse opinions. Most opposition to disability rights is covert. In Alabama v. Garrett,4 Chief Justice Rehnquist held as constitutional discriminatory state government workplace practices. He noted that “it would be entirely rational” for the state to “conserve scarce financial resources” by hiring those without disabilities. In other words, the state may freely decline any compliance with the law if it does not have the money to spend on accommodations or if accommodations are deemed too expensive. The holding also found state actors immune to monetary damage claims based on violations of the ADA.5 In addition, the court characterized the claims as a request for “special accommodations” unrelated to equality issues.6 Public attitudes toward those with disabilities are often paternalistic. This may, in part, be a reflection of the fact that non-disabled persons write the laws and decide the disputes. It is also related to the concept of stigma. By stigmatizing individuals, people lose their humanity. They are, in effect, not regarded as fully human. This stigmatization and loss of humanity leads to intolerance and discrimination. Cultural conventions created by paternalism sometimes further perpetuate this intolerance. Judicial decisions may be shaped as much by stigma as by analysis of the relevant statutes and laws. In fact, the United States Supreme Court has endorsed many unfavourable positions toward disability rights. In evaluating a claim by a group of “retarded” persons, the Court found them to possess a “reduced ability to cope and function in the everyday world,” exception is that US caselaw is cited in a format similar to the “BlueBook,” the guide for legal citation in the United States. This approach to citation employed herein is commonly used by Canadian law journals. 3 4 5 6

Americans with Disabilities Act, 42 U.S.C. Section 12101 (1994). 531 U.S. 356 (2001). Ibid. Ibid at 368, 374 -375.

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but, not to be “powerless,” thus, denying the disabled heightened scrutiny on their claims.7 The Court further noted that the disabled are aided by both State and Federal government policies and, accordingly, special constitutional protections were deemed unnecessary.8 The Court has also refused to grant protections on the basis of a medical understanding of disability,9 and found a hearing problem sufficient to raise safety concerns for practice in nursing, thereby, justifying the denial of accommodations for academic studies directed toward nursing.10 More recently, the Court held that remedial devices and medications mitigate the degree of impairment and, under such circumstances; claimants may not be substantially limited in a major life activity. If one is not substantially limited, then one has no legal claim for protective coverage.11 In fact, one recent federal court found that a plaintiff with most of an arm missing did not have a disability sufficient to warrant protective coverage under the ADA.12 This jurisprudence has produced a precedent milieu where the courts routinely refuse to hear claims and plaintiffs consistently lose their cases. 13 Legal definitions of disability have tended to focus on the functional characteristics of those with disabilities rather than social stigma and unfavorable attitudes. The people making these functional assessments have no disabilities and often have little ability to relate to the difficulties of disability. These same problems are also present in Canada, however, Canadian courts have tended to take a broader perspective on human rights protection. Supreme Court of Canada Justice L’Heureux Dube has acknowledged the need to put discrimination first and to focus the analysis

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Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). Ibid at 446 (the disabled were accorded rational basis scrutiny, the lowest level of scrutiny possible under the Constitution of the United States). 9 Youngberg v. Romeo, 457 U.S. 307 (1982). 10 Southeastern Community College v. Davis, 442 U.S. 397 (1979). 11 Sutton v. United Airlines, 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc.,527 U.S. 516 (1999); Albertson’s Inc. v. Kirkinburg, 527 U.S. 555 (1999). 12 Gillen v. Fallon Ambulance Serv.,283 F.3d 11, 21 (1St Cir. 2002) (summary judgment to the defendant was reversed and remanded by the higher court). 13 See generally, Ann Hubbard, “Meaningful Lives and Major Life Activities; Symposium: Disability Law, Equality, and Difference: American Disability Law and the Civil Rights Model” (2004) 55 Ala. L. Rev. 997. 8

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on the lived experience of marginalized groups.14 She argues that we will never address the problem of discrimination completely, or ferret out all its forms, if we continue to focus on abstract categories and generalizations rather than on specific effects. By looking at the grounds for distinction instead of the impact of the distinction on particular groups, L’Heureux Dube says we risk undertaking an analysis that is distanced and desensitized from real people’s real experiences.15 She further notes that to make matters worse, in each of the appropriate categories upon which findings of discrimination may be based, the courts risk relying on conventions and stereotypes about individuals within these categories that further entrench a discriminatory status quo. More often than not, disadvantage arises from the way in which society treats particular individuals, rather than from any characteristic inherent in those individuals.16 The real life stories of persons with disabilities are a crucial part of the process of understanding disability. This understanding is crucial to the pursuit of equality and toward creating a more inclusive society. The recent writings of Engel and Munger argue for a new understanding of rights, one that focuses on everyday lives.17 They see a connection, a relationship between rights and identity. They see the lived experience of persons with disabilities as a central part of this process. The relationship between rights and identity leads to an enhanced self-perception for those with disabilities and it results in greater integration within society.18 However, it seems to me, the arguments about integration or at least the degree of integration are undermined by the routine denial of disability claims brought before the courts on the basis of the ADA. These differences in approach to disability issues in Canada and the United States suggest further investigation and comparison of Canadian and American methods of assessing questions of disability might not only be fascinating, but also revealing in terms of illustrating what approaches work best and what should be avoided. Recent American experience with 14

Egan v. Canada, (1995) 2 S.C.R. 513, 551. Ibid. 16 Ibid, at 551-52. 17 D. Engel, F. Munger, Rights of Inclusion, Law and Identity in the Life Stories of Americans with Disabilities, (Chicago and London: University of Chicago Press, 2003). 18 Ibid at 241-45. 15

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the ADA is particularly troubling and provides a rich information base that may be quite instructive to similar Canadian legislative efforts.

Overview of Book Chapters The next chapter in this book, Chapter II, considers the theoretical foundations for disability protections. It is argued that various notions of equality form the basis upon which protections for the disabled are structured. Different perspectives with respect to the meaning of equality are described with a focus on disability issues. These range from a reliance on free market principles to resolve issues of discrimination to various utilitarian formulations for achieving preference and satisfaction. Broadly speaking, these approaches assume preferences-satisfactions are all equal with respect to moral urgency and they also tend to emphasize economic efficiency, or some type of near surrogate of efficiency, in all decisions involving distribution. Alternatively, non-utilitarian liberals, such as Sen and Rawls, have developed approaches to equality that are more rights based. They distinguish between choices and circumstances and attempt to mitigate the unwanted effects of circumstances upon the distribution of resources. Disability protections find their theoretical foundation structured on these kinds of rights.19 Moreover, such rights are not compatible with, nor should be subject to, any calculated evaluation of cost and benefits. However, pronouncements with respect to rights are not enough, even if they are supported by flawed legislation. From a theoretical perspective, what is needed is an understanding of the potential role of experience in theory. This together with the theoretical structures offered by Sen and Rawls may provide a stronger explanatory basis for what the law is - and what it should be. Chapter III describes the protective legislation enacted in the United States and Canada. The most significant US legislation is the Americans

19 As explained in Chapter II, rights form what I regard as the appropriate foundation for disability law, but, in actual practice, it may be a combination of approaches, perhaps a curious kind of pluralism, see, Barbara Flagg, “The Algebra of Pluralism: Subjective Experience As A Constitutional Variable” (1994) 47 Vand. L. Rev. 273 at 323 (discussing problems associated with the subjective experience and the normative bias connected to it; but, also recognizing that when one’s objective is inherently pluralistic, then subjectivity may be appropriate).

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with Disabilities Act (ADA). The statute contains a detailed definition of disability and tries to clearly articulate who is covered by the law. In so doing, the law narrows the scope of protective coverage. In Canada, the relevant mechanisms for the delivery of legal rights are the Charter of Rights, and Federal and provincial human rights codes. The Charter and the human rights codes define disability quite differently than the ADA. They approach the idea of disability in an expansive manner, in a way that seems to be much more inclusive than the comparable laws in the US. The various definitions of disability are discussed as well as the tests used in evaluating claims of discrimination. Chapter IV applies the laws described in Chapter III to cases involving reasonable accommodation and employment discrimination. Specifically, the discussion focuses on the application and interpretation of disability protections in the workplace. First, a variety of American interpretations of the disability legislation as well as the meaning of disability are considered. These decisions are then contrasted with similar Canadian cases. The results show that US holdings contain very detailed analyses that tend to narrowly interpret the law, thereby denying remedies to plaintiffs. The reasoning used by Canadian courts leans toward a broader understanding of disability and, as a result, people with disabilities are more likely to win their cases in Canada. One other additional observation, with respect to the provision of accommodations for disability, Canadian courts tend to be more focused on rights while American courts are much more focused on assessments of costs and benefits to the employer. American courts are interested in a detailed biomedical assessment of each disability under review, all for the purpose of ensuring that insufficiently disabled persons are excluded from protective coverage. Canadian courts undertake a similar process, but seem unwilling to engage in a detailed biomedical evaluation of the disability. Chapter V considers the disability statutes discussed in Chapter III with respect to their role in improving access to higher education. Much of the discussion deals with the American experience because the Canadian experience is very limited. In Canada, only a handful of cases deal with questions involving access to higher education. In the United States, there is an interesting line of cases involving hearing difficulties, vision impairments and learning disabilities. These and other disabilities have been called hidden or labeled disabilities. They are not so obvious to the general populace and, as a consequence, are often regarded as

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insignificant and inconsequential, and often the courts do not see them as worthy of accommodation. Even when these disabilities are apparent, they are frequently evaluated by the courts in accord with some biomedical measure of dysfunction and many with disabilities are found to be insufficiently dysfunctional to warrant statutory protection. As a result, some people with disabilities are denied the accommodations they need for successful participation in higher education and the workplace. Others may be awarded accommodations while undertaking academic work, but denied accommodations on the professional examinations that often follow academic studies. Medical schools may provide accommodations during examinations while in school, while, medical boards deny the same persons accommodations on the examinations necessary for admission to practice. In other professions, state level authorities in some states will offer accommodations, but the authorities in other states will deny accommodations to the same applicants. Also, state level and national authorities sometimes offer different accommodations for the same disability, and may be obstinate towards efforts to coordinate reasonable accommodations. These difficulties undoubtedly frustrate those seeking accommodations. In spite of the lack of Canadian case experience in issues of higher education and disability, the holdings that do exist indicate that Canadian courts and human rights tribunals are more likely to offer expansive protections and reasonable accommodations. But, the jury is still out on how Canadian adjudicators will ultimately handle these kinds of disputes. On the question of accommodations for professional examinations, there is no available case law in Canada. When these disputes do arrive before adjudicators, as they inevitably will, there is no clear indication of how they will respond. Finally, the book provides some additional remarks within the concluding discussion contained in Chapter VI. The remarks summarize the findings of this comparison of American and Canadian disability laws. In addition, some comments are made about the theoretical character of disability law in the United States and Canada. The comparison of Canadian and American disability laws has much more than just an interesting academic appeal. It can provide guidance to legislators and public policy makers. My arguments in this book demonstrate that Canadian legislators and public policy makers need to be aware of the rather significant failures of the ADA in the United States. Moreover, they must take care to ensure

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that the gains made by Canadian human rights laws are not undermined by well-meaning legislative efforts to pass ADA-type legislation at the provincial level. I certainly have no argument with the desirability of additional protective legislation designed for proactive purposes at the provincial level. While human rights laws have provided the necessary rights-based protections, there still remains a need for legislation that goes beyond the provision of rights and requires the removal of barriers. In fact, without such legislation, progress toward greater equality will be delayed by many years.

CHAPTER II

Theoretical Perspectives On Disability Protections Introduction Disability laws have promised to improve the prospects for equal treatment by creating rights. This chapter endeavours to briefly consider the theoretical basis for such laws. Disability laws are structured broadly on various understandings of egalitarianism and aspirations to create a more equal society. Selected theories of equality are weighed with respect to their practical contributions toward greater participation by those with disabilities in the daily life able-bodied persons take for granted. Equality can mean many different things. It can be mathematical, as in an equation where one side must equal the other. But, often equality is much more than the simple, equal application of rules. Equality can also produce favour, where one receives more than others to equalize past inequities. It can produce preferences over a wide variety of policy issues. Equality also involves questions of comparative claims to equal treatment. This means that equality will sometimes require that favourable treatment be given to some persons or groups.1 For example, equality in the delivery of transportation services to the disabled requires more than equal treatment in order to achieve equal access to services. Under such circumstances, equality requires some form of special treatment, or extended service. How should the need for such so called “special” treatment be evaluated? Are categories or protected classes necessary? The nature of

1

The law is not a mechanical instrument, with dependent and independent variables or with predictive equations that will lead us to the "correct" outcome. The same is true with respect to discovering equality; there are widely divergent perspectives and interpretations of equality. Nonetheless, our society has undertaken some efforts to remove discriminatory barriers for those with disabilities. The grounds for such action are based on a desire to provide fairness, equality and some sense of a need to equalize the playing field for those persons with disabilities.

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special or preferred treatments is often controversial and hotly debated.2 Where does one draw the equality line? At what point does accommodation turn from the assurance of some semblance of equality to embrace notions of unwarranted privilege? How do costs and benefits factor into these questions? To make these determinations, one must look at the theoretical basis upon which protective legislation is arguably structured.3 The discussion in this chapter considers a broad band of views, from a market-based libertarian ideal, to utilitarian, efficiency, primary resources and capabilities interpretations of equality. This deliberation also touches on the relevance of classical rights theory and critical legal studies to this discussion. Where this discussion refers to specific theorists as associated with a particular approach or theory, it must be noted that theorists cannot be easily categorized because most pick and choose from various theories in a manner consistent with their own needs and wishes. The intent of this discussion is to demonstrate the breadth of theoretical positions on equality and layout a variety of perspectives before delving into the relevant American and Canadian disability laws.4

2

For some interesting articles / books on preferences which are designed to provide for equality, see, J. Ely, Democracy and Distrust, (Cambridge, Mass.: Harvard University Press, 1980) at 145-148; Cass Sunstein, “Naked Preferences and the Constitution” (1984) 84 Columbia L. Rev. 1689 at 1713; R. Knopff, Human Rights and Social Technology, The New War On Discrimination, (Ottawa: Carleton University, 1989). 3 Henry Brown, Egalitarianism and the Generation of Inequality, (Oxford: Oxford University Press, 1988) (discussing a broad band of viewpoints on equality, considering historical views of equality issues and more recent arguments supporting reliance on markets, to more liberal re-distributive schemes). 4 The discussion in this chapter does not seek to provide an exhaustive exposition on the subject of alternative legal theories considering equality and justice. That is impossible in this context and beyond the scope of this thesis. I am principally interested in laying out equality as a foundation upon which protective legislation for those with disabilities is based. To this end, this synopsis focuses on the writings of Donohue, Epstein, Posner, Rawls, Sen and Nussbaum. A more comprehensive analysis would provide a more in-depth appraisal of their writings and consider the works of others such as Robert Nozick, David Gauthier, Jules Coleman, Martha Minow, Ronald Dworkin, G.A. Cohen and Michael Walzer.

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A Libertarian Approach to Equality To the libertarian, the “only relevant consideration in political matters is individual liberty.”5 A person would be “forced to do or to refrain from what one wants to do only if what one would do or not do would violate, or at least infringe [on] the rightful liberty of some other person(s).”6 Everyone should have the equal right to liberty. Here the word ‘equal’ clearly does not refer to any quantity of goods that may be distributed among people. There is equality only in the sense that everyone has a fundamental right to liberty, and that any restriction on liberty infringes on this right. This fundamental right is to be universal and not to be packed in anyone’s favour. Other approaches to equality, such as efforts to equalize utility, wealth or resources among people or groups of people are completely outside the libertarian paradigm. Where rights interfere with individual liberty, rights have no merit. Advocacy of free market principles is a prominent part of the libertarian agenda. In many respects, the defense of the market is what libertarianism is all about.7 The resulting distribution of resources and inequalities are not a concern for pure libertarians. Their concern is only with individual liberty. Realistically and practically, a market generated equality, structured broadly around libertarian views, has little to offer persons with disabilities. It only offers a continuation of past inequalities. Where biases exist against those with disabilities, they will continue unless there is intervening action. Proactive action by government can assure more equal treatment and protective legislation also has an educational benefit as well. Increased attention given to the problem of prejudice and awareness can encourage people to recognize attitudinal wrongs. Of course, libertarians would reject all of this. They argue the law should be neutral, that the only legitimate purpose of government is to equally protect private individual rights, without regard to differences in characteristics or wealth.8 So they oppose any deliberate redistribution of 5 Jan Narveson, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988) at 7. 6 Ibid. 7 Some Libertarians might acknowledge the occasional failure of perfect competition, but, if it is possible to identify and prevent those conditions causing failure, “the market will need no further attention and will succeed.” Ibid. at 189. 8 I acknowledge that the libertarian position falls within classical liberalism, 11

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wealth, including laws protecting the disabled that have redistributive effects.9 Libertarians choose to rely on market mechanisms to deal with what they regard as largely meritless problems of inequity and discrimination.

Efficiency and Equality Many of the advocates of unfettered markets also argue in favour of markets for efficiency reasons. The advocates of market-based approaches have a simple solution to equality issues. They argue that laws designed to remedy race, gender, disability and other classes of discrimination are unnecessary. They assert that the market will be able to eliminate any and all forms of discrimination. If an employer discriminates, the employer has to pay a price. The price is that by discriminating, the employer is artificially contracting the supply of available labor which tends to raise its price. If many employers discriminate, the wages of their respective labour forces will rise. Then non-discriminating competitors will be free to exploit those in the labour force who face discrimination at lower wages and thereby gain a competitive advantage over the employers that discriminate. Over time, it is argued, those employers engaging in discriminatory practices will either be forced out of business or will find it necessary to manage their however, in legal theory, this position is commonly used to endorse ultra conservative arguments and similarly styled judicial reasoning. Therefore, I tend to refer to the libertarian position as one that is politically quite conservative. 9 Richard Epstein, “In Defense of Employment at Will”, (1984) 51 U.Chi. L. Rev. 947 at 952, 979-82 (arguing for broad freedom of contract rights with only limited exceptions in the case of force or fraud); in fact, arguably antidiscrimination laws may actually enhance private party contracting. These laws can take into account externalities for perceived dislocations that cannot be remedied due to high transaction costs. In addition, such laws may actually enhance private contracting by giving the party discriminated against contracting opportunities they would not otherwise possess. Libertarians would of course reject this idea as illustrating an enhancement because the right to dispose of one’s labour is to be understood “as only the right to offer one’s services on whatever terms and conditions one sees fit” and employers have the freedom to hire an reject as they see fit. See, Richard Epstein, “A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation”, (1983) 92 Yale L. J. 1357 at 1365. Ultimately, libertarians guarantee those with disabilities a hypothetical liberty they do not want or need by denying them rights that they should possess.

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operations in a nondiscriminatory fashion. Like the libertarian perspective, this process is based on a foundation of theories of individual liberty and freedom of contract, but also on the grounds that the market will provide the most efficient solution. A number of noted economists actually believe that the unregulated market will eliminate discrimination. In “Advocacy Versus Analysis in Assessing Employment Discrimination Law,”10 Professor John J. Donohue III pondered on the Chicago School opposition to Title VII's proscription of discrimination against blacks.11 The Chicago School thinking supported reliance on market mechanisms, not legislation, to deal with discrimination. This market-forces kind of reasoning remains strongly entrenched in some areas of public policy and legal theory. Recent works by Richard Posner and Richard Epstein add credence to the view, according to some, that legal interventions are almost always counter-productive. Posner structures much of his argument around the efficacy of freedom of contract as well as the efficiencies of the market.12 Professor Richard A. Epstein draws on both libertarian and efficiency arguments. He has added a robust libertarian essence to the market-based argument.13 He has argued against all anti-discrimination laws on the 10

(1992) 44 Stanford L. Rev. 1583. Ibid at 1591 (many years ago, prominent voices at the University of Chicago entered their strong opposition to the passage of civil rights legislation on theoretical grounds. For example, in 1962, Milton Friedman [in Capitalism and Freedom] emphasized that fair employment practice laws were unnecessary because the existing free markets were generating great progress for blacks: "the maintenance of the general rules of private property and of capitalism have ...been a major source of opportunity for Negroes and have ... permitted them to make greater progress than they could have otherwise have made." Friedman's view became the established orthodoxy for many within the Chicago School tradition who believed that discrimination laws were both unnecessary and unsuccessful at providing economic benefits for blacks). 12 Richard Posner, “The Efficiency and Efficacy of Title VII” (1987) 136 U. PA. L Rev. 53. 13 Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws, (Cambridge, Mass.: Harvard University Press, 1992) (hereafter “Forbidden Grounds”); Epstein's denigration of anti-discrimination laws is consistent with his general libertarian views which are described in his other writings; Takings: Private Property and the Power of Eminent Domain, (Cambridge, Mass.: Harvard University Press, 1985) (an attack on property takings decisions, emphasizing freedom of contract); “A Common Law for Labor 11

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grounds that they are inefficient. His argument focuses on a fervent defense of freedom of contract, economic efficiency and law and economics.14 He uses reasoning that is also consistent with approaches endorsed by utilitarians. Epstein argues that all persons, irrespective of their race, gender, disability or age, are able to offer their services on the free market. Any existing discrimination will be smoothed out, or absorbed by the greater market and, as a result, those suffering from discrimination will find employment elsewhere. He regards this as the most efficient way of dealing with discrimination. Specifically, with respect to the disabled, Epstein does not dispute that they have been treated unfairly. Rather, he points to government regulation as the source of most problems. He argues that: They [persons with disabilities] have been and are [subject to unfair treatment]; but often the source of the unfairness does not lie in the inability of the handicapped to receive subsidies for work, but in government interference with the control of their labor. Like everyone else, the disabled should be allowed to sell their labor at whatever price, and on whatever terms, they see fit.15 The market-based argument suggests that if government would get out of the way, the market would efficiently solve any significant unfairness problems and create a market-based equality of opportunity. In addition, Epstein further argues that disabled persons have “just criticisms of the whole array of supposedly protective legislation that in

Relations: A Critique of the New Deal Labor Legislation,” (1983) 92 Yale L.J. 1357 (his attack on labour law in general); “In Defense of the Contract At Will,” (1983) 51 U.Chicago L. Rev. 947 (his reproach for reductions in the "at-will" labour rule); Liberty, Property and the Law: Contract - Freedom From Restraint, eds. Richard Epstein, (New York and London: Garland Publishing, Inc., 2000) (edited and with introduction by Richard Epstein, articles in favour of “at-will” contracts, freedom of contract, free markets, and removal of remedies for wrongful discharge); Richard Epstein, “Contracts Small and Contract Large: Contract Law through the lens of Laissez-Faire,” ed. F.H.Buckley, The Fall and Rise of Freedom of Contract, (Durham, N.C.: Duke University Press, 1999). 14 Forbidden Grounds, at 28-58, 480-94. 15 Ibid. at 484.

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fact limits their ability to negotiate on their own behalf.”16 He also cites minimum wage laws and health and safety regulations as imposing a disproportionate burden on the disabled. He calls for the repeal of these laws as well as other laws protecting the disabled and a return to a market solution.17 Whatever one thinks of the merits of his arguments, they must be addressed because so many people are inclined give them, in whole or in part, serious-minded treatment.18 Efficiency theorists often apply economics to the analysis of law. The relatively recent wave of interest in law and economics, began with Ronald Coase’s famous article “The Problem of Social Cost.”19 Notwithstanding, in the legal community, law and economics acquired its greatest presence with Richard Posner’s book entitled the Economic Analysis of Law.20 The theory involves the use of economics to “predict” the effect of legal sanctions on behaviour. It assumes that people are rational maximizers of self-interest and that they attempt to efficiently accomplish this outcome at the lowest possible cost. The focus of the analysis is on wealth maximization. This law and economics reasoning provided the intellectual justification for much of the deregulation of the 1980's and early 1990's. Efficiency is always relevant in law and economics.21 Kaldor-Hicks 16

Ibid. at 484. Ibid. at 485. 18 Nancy Dowd, “Liberty v. Equality: In Defense of Privileged White Males”, (1993) 34 Wm & Mary L. Rev. 429 (a book review of Epstein’s, Forbidden Grounds: The Case Against Employment Discrimination Laws, (Cambridge, Mass.: Harvard University Press, 1992); Dowd provides an excellent critique of Epstein’s views and although she argues largely from a feminist perspective, she also argues well with Epstein’s postulates from both moral and utilitarian positions). 19 Ronald Coase, (1960) “The Problem of Social Cost,” 3 J.L. & Econ. 1. 20 Richard Posner, Economic Analysis of Law, (Boston, Mass.: Little, Brown, 1972) 21 Defined broadly, efficiency can be thought of as the effort to accomplish an outcome with the lowest possible cost. It is a kind of efficiency of production. Examples of other similar efficiencies include: allocative efficiency - producing the right amount of goods in a specific industry; pareto efficiency - making at least one person better off with no one worse off, and once with re-allocations one person is made worse off, then the pareto optimal position has been determined; and Kaldor-Hicks efficiency - requires reallocations or policy changes to make some sufficiently better off so that they could compensate those who are made 17

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efficiency is particularly attractive. Allocations are efficient if they maximize wealth.22 The concept is appealing to a broad spectrum of legal scholars, not only those with conservative views, but, also to some with more liberal convictions.23 Some of these scholars see the use of law and economics and efficiency as principally descriptive, while others seek to apply them prescriptively. But, whether it is more accurately thought of as prescriptive or descriptive, one thing is certain: there is no assurance that maximizing wealth will also maximize any other measure of well-being. Instead, what is maximized is an imperfect substitute for utility, a very poor surrogate for actual well-being. Moreover, the consent24 of those worse off. The “compensation” does not have to be made, only “potential” compensation has to be shown. Then it is Kaldor-Hicks efficient. Measurement and compensation is based on wealth maximization, value, price, and of course, the ability to pay. It seems that the first two efficiencies have more in common with the libertarian position than they do with those who advocate efficiency and law and economics. Moreover, they support an inquiry into whether the policy changes make one better off or worse off. This might be regarded as a form of consent. The first two efficiencies clearly support free market operations, whereas, Kaldor-Hicks seems to be an important part of law and economics and efficiency arguments. 22 Supra, note 19 (quoting Posner on Kaldor-Hicks, “when an economist says that free trade or competition or the control of pollution or some other policy or state of the world is efficient, nine times out of ten he means Kaldor-Hicks efficient ...” ). Ibid. at 13. 23 Some prominent scholars have become judges and make use of the concepts of law and economics in their reasoning: Justice Steven Breyer of the US Supreme Court, Judge Guido Calabresi of the US Court of Appeals for the 2nd Circuit, Judges Richard Posner and Frank Easterbrook of the US Court of Appeals for the 7th Circuit, Judge Alex Kozinski of the US Court of Appeals for the 9th Circuit, and Judge Douglas Ginsburg and former Judge Robert Bork of the US Court of Appeals for the DC Circuit. It is important to note that while most of these judges approach judicial decision making from a fairly conservative ideological perspective, like many proponents of law and economics, some do not. Justice Calabresi is known for more liberal views, and Justice Breyer frequently votes with the more liberal minority on the US Supreme Court. See, Robert Cooter, Thomas Ulen, Law and Economics, 2nd. Ed. (Reading, Mass.: Addison Wesley Longman, 1997) at 2-3. 24 The consent that I am writing of here should be regarded broadly. Under paretian efficiency, consent must be part of the process because moves toward pareto optimality or to pareto superior positions require an inquiry into whether those affected will be made worse off or better off. The best way to find out

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impacted can be dispensed with,25 all for the purpose of maximizing wealth. These arguments also accentuate the notion that all valuations can be reduced to money and willingness to pay. Efficiency theorists would offer accommodations to those with disabilities only if the benefits outweighed the costs. If the benefits of accommodation do not rise above costs, then those individuals with disabilities would be forced to endure the cost of any sought after accommodations.26 These costs might include the cost of removing the barriers constructed by society and possibly lower salaries to compensate for costs to those without disabilities. Policy is evaluated by assessing costs and benefits. There is no focus on equality, human rights or other non-financial convictions. Equality is only available to the extent it is offered by the operation of free market forces and optimal decision making.27 Equality, justice and rights as bases for judicial decision whether people will be made better off or worse off is to ask them. Similarly, the process of determining compensation should, appropriately, consider inquiry with those affected. Under Kaldor-Hicks this individual autonomy inherent in Paretian efficiency is lost, consent is not necessary because concern is given only to producing the most efficient outcomes. Moreover, compensation need only be theoretically possible; it does not have to be paid. 25 Richard Posner argues that the loss of individual autonomy is overstated because of “ex ante” compensation. That is where individuals find themselves worse off due to a choice, most often they are worse off because they did not follow a course of action that would have prevented the loss. This risker course of action is usually less costly and the so called “compensation” is the money saved by taking that course of action. Therefore, one “consents to” and is “compensated” in advance for a loss that is later experienced. See, Richard Posner, The Economics of Justice, (Cambridge, Mass.: Harvard University Press, 1980) at 945. This effort to reconcile wealth maximization and Kaldor Hicks with Paretian and more libertarian principles has been criticized throughly by Coleman. See, Jules Coleman, “Efficiency, Utility, and Wealth Maximization,” (1980) 8 Hofstra L.R. 509 at 534-540. 26 Consider the costs of elevators in low rise buildings, subways, wheelchair ramps, transport accommodations such as wheelchair accessible buses. These accommodations are all quite expensive and if subject to a calculation of benefits and costs, many such accommodations might not be warranted. 27 See, Richard Leslie Hasen, Beyond the Pursuit of Efficiency: An enriched law and economics analysis for constructing legal rules, (Los Angeles, CA: UCLA Phd thesis, 1992) (criticizing law and economics for errors in prescribing socially efficient rules, a rigid view of individual rationality, unrealistic behavioral assumptions, and uncompromising ideological suppositions. He is critical of the 17

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making are often regarded as deficient normative moral reasoning.28 Yet decisions based on fairness, equal citizenship and the dignity of persons should influence distribution and law.29 Social justice is much more complex than an analysis of costs, benefits and efficiency.

Utilitarians and Equality Utilitarian equality is an equality of welfare.30 The equality associated with the utilitarian concept focuses on seeking the greatest good for the greatest number of persons. It is an approach to equality that measures the quality of a life in terms of utility. Utilitarianism is closely related to law and economics and the views of the efficiency theorists described above. It is quite similar to the Kaldor-Hicks efficiency discussed above, with “utility maximization” substituting for “wealth maximization.” The most basic definition of utility is the one acknowledged by the normative belief that society is better off as overall social wealth increases and calls for a new “self-conscious” approach to law and economics with better behavioral and ideological assumptions. He says that law and economics needs to take into consideration the distributional consequences of wealth maximization.). 28 See generally, Richard Posner, “The Problematics of Moral and Legal Theory” (1998) 111 Harvard L. Rev. 1637 (Posner argues against the use of normative moral theory as the basis for moral judgments; Posner disregards the fact that many of the arguments in favour of efficiency and law and economics may also have a moral foundation and even if one sidesteps the moral arguments, I think that there is also an “inescapably political character” to Posner’s use of efficiency and economics as prescriptive measures within judicial decision making); see also, Richard Posner, Economic Analysis of Law, (Boston, Mass.: Little, Brown, 3rd ed., 1986) at 102-03 (for Posner equality is not even a factor in the judicial process and in contractual arrangements, he has no difficulty with unequal bargaining power). 29 Amy Gutmann, “Justice Across Spheres” in Pluralism, Justice and Equality, David Miller and Michael Walzer, eds.(New York, N.Y.: Oxford University Press, 1995) at 118-19 (discussing spheres of justice where spheres have a social meaning for a particular good; there are many spheres of justice and principles of justice are internal to each individual distributive sphere; moral reasoning is part of the process, not sphere specific, and pointing to a complex theory of social justice). 30 The utilitarian approach is not the only type of welfarism. It is presented here broadly as a representation of the welfare approach. For further perspectives on the varieties of welfare, see, Dworkin, R., “What is Equality? Part 1: Equality of Welfare”, (1981) 10 Phil.& Pub. Aff. 185 at 244.

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19th century utilitarian, Jeremy Bentham, “that utility is the pursuit of pleasure or the avoidance of pain.”31 This utility can be thought of as the concept of usefulness applied to problems of distribution; it is the satisfaction of preference or desire. It can also be the satisfaction or degree of preference connected to the division of a good. It is often thought that utilitarianism is the basis upon which efficiency arguments are constructed. However, it must be noted that there are many types of utilitarianism, such as total, average and ordinal utility and utilitarians run the gamut in terms of ideology, from ultra conservative views to egalitarian liberal perspectives. Nonetheless, most utilitarians accept the notion that utility is some variant of declining marginal utility of income.32 Given this approach to utility, the Kaldor-Hicks efficiency apparently espoused by Posner is not compatible with utilitarianism. This is because it is not realistic to assume that all persons have the same utility for wealth or that this utility is constant.33 Thus, the efficiencies commonly used by the supporters of law and economics do not usually enhance utility.34 31

Francis Fukuyama, Trust: The Social Virtures and the Creation of Prosperity (New York, N.Y.: The Free Press, 1995) at 19. 32 Higher income generally has a positive correlation with increased satisfaction or utility. I think, without actually knowing, that most utilitarians might agree that higher incomes produce greater satisfaction. In addition to a wide range of ideological views, utilitarians also seem to have differing views about income and the degree of its influence in establishing utility. 33 For example, consider where a pie is divided, each person increases utility only if his or her piece of the pie is larger, and this utility is based only on the size of his or her share, not the shares of others. The marginal utility diminishes as the size of each piece increases. For the utilitarian, the purpose is to increase the total utility offered by the pie, irrespective of the distribution among individual piece holders. But, such a method cannot produce any genuine simulation of reality. As a consequence, it has limited explanatory value and practical significance But, to truly have some semblance of individual equality under such circumstances, the marginal utility of incremental portions of the pie must be equal for all the persons represented in the pie. This does create a kind of equality, but it can only exist in a highly simplified economy and society. Every person's position has to be equal when portions are identical. The same is true when marginal utility is uniform among all persons. 34 Edward McCaffery, “Slouching Towards Equality: Gender Discrimination, Market Efficiency, and Social Change,” (1993) 103 Yale L.J. 595 at 642-43 (noting that efficiency has a limited role to play in a pure utilitarian philosophy as the Kaldor-Hicks test is not utility enhancing except under limited circumstances; and noting that efficiency is neither essential nor particularly helpful to 19

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The utilitarian model is more often presented in a way that attempts to be more realistic, recognizing that the size of the pie is in part dependent upon the distribution of pieces and, thus, precisely identical measures of equality are not achievable.35 This is commonly done by attempting to restate the Kaldor-Hicks test in “utile” terms. Maximizing total utility can be done so long as the distributional advantage gained by some has the capacity to "compensate" the marginal utility of the distributional losers. The generally held view is that there is no actual need to compensate, it is only necessary that the total utility be maximized.36 Thus, even small gains in total utility produced as the result of extreme redistributions (and thereby extreme inequalities), are regarded as a utility gain and are still viewed as a desirable utilitarian objective.37 A Paretian outlook on efficiency is probably more compatible with utilitarianism. Widely utilitarians). 35 Under pareto optimality assumptions, few if any legislative interventions in the market would pass the muster of making every individual better off after an intervention than they were before. Therefore, utilitarians may argue in favour of a Kaldor-Hicks type of standard for assessing disability issues, where the aggregate benefits need only exceed the aggregate loses. This would result in some disabled persons losing accommodations on efficiency grounds. A human rights based approach would likely extend accommodations under the same circumstances. Moreover, the measurement of benefit and cost is quite problematic in any case. The courts often use a utilitarian type of evaluation in the analysis of reasonable accommodation and undue hardship. See, Gregory Crespi, “Efficiency Rejected: Evaluating ‘Undue Hardship’ Claims Under the Americans with Disabilities Act, (1990) 26 Tulsa L.J. 1 (arguing against the use of a utilitarian efficiency in the analysis of undue hardship). 36 See, Amartya Sen, “Rational Fools: A Critique of the Behavioural Foundations of Economic Theory,”lecture delivered at Oxford University in October 1976, published in Philosophy and Public Affaires, (Summer of 1977) at 6, reprinted in Choice, Welfare and Measurement, (Oxford: B. Blackwell, 1982) a collection of essays by Amartya Sen, at 84, 104-105 (criticizing economic rationality and asking why one would sacrifice happiness for the greater happiness of another; why seek a happiness for the whole). 37 See, Amartya Sen, “Equality of What?” in Equal Freedom: Selected Tanner lectures on Human Values, eds. S Darwall, (Ann Arbor: University of Michigan Press, 1995) at 311-12 (Sen argues that to have equality under in a pure distribution problem, it would be necessary to have an “absolute equality of everyone’s total utilities ... because when the marginal utilities are equated, so would the total utilities.” Sen calls this “egalitarianism by serendipity: just the accidental result of the marginal tail wagging the total dog”) Ibid. at 312.

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beneficial policy changes are compatible with pareto superior improvements and these kinds of utility enhancements are the core of paretian efficiency. Unfortunately, total utility is commonly the primary objective and as a result, individual persons and marginal groups are not really part of the analysis.38 A second crucial problem with the utilitarian approach is "its commitment to the commensurability of value, the concern to measure the good in terms of a single metric and thus deny that there are irreducibly plural goods that figure in human life."39 Third, utilitarianism also fails to recognize the problem of "adaptive preferences."40 38

See, Martha Nussbaum, “Capabilities and Human Rights” (1997) 66 Fordham L. Rev. 273 at 281 (discussing Rawls criticism of the utilitarian approach as described in A Theory of Justice); A Theory of Justice, at 179, 182, 207 (utilitarianism provides insufficient protections for basic liberties because of the tendency to aggregate utility and thus given the gravity of this drawback, the utilitarian approach should be disregarded); the utilitarian approach is a welfare measurement of equality; the decision making focus is on whether the choices enhance aggregate wealth. As noted above in the text, it measures utility in terms of the satisfaction of desire or preference. So the approach does have the benefit of some, albeit limited, sensitivity to the distribution of resources. 39 “Capabilities and Human Rights” at 281; see also, Nussbaum, Martha, “Plato on Commensurability and Desire,” in Love's Knowledge, 106 (1990) (arguing that plurality and distinctiveness involve many peculiar values and as such they cannot be combined into one measure); it is essential that one recognizes that the measurement of quality of life is very complex and cannot be reduced to a single measure. To do so would ignore the kinds of individual trade offs that we all make on a daily basis). 40 Nussbaum, at 283; Additionally, note that deprived people calibrate their preferences to a low level, one that they can, in their own minds, legitimately regard as reasonably achievable. Whereas more wealthy persons become accustomed to an extravagant level of choice, with many options, and when even unnecessary preferences are removed as possible options, they experience a very low level of satisfaction. If people are accustomed to having no choice, they will adjust their desires to a lower level so as to be in accord with their expectations. Then a very minor improvement in utility can produce much satisfaction. The issue of adaptive preferences is particularly important when dealing with groups of persons that have been consistent victims of unequal treatment in the past, such as persons with disabilities. Persons with both physical and mental disabilities are surrounded by a culture, institutions and a society that tells them in some way, that they don’t fit in. Many simply accept it and reduce their own individual expectations. Some do not accept such barriers. Others with hidden disabilities 21

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Like libertarians, many utilitarians argue that legislation protecting the disabled is unnecessary.41 Also, like the efficiency theorists, some utilitarians argue that legislation will also reduce overall aggregate utility. They argue that non-discriminating firms are more efficient than discriminating ones, and thus they will be more competitive and will be able to expand. Non-discriminating employers will hire the lower demand and lower cost disabled workers. As a result, they will have lower labour costs and be able to gain a competitive advantage over their prejudiced competitors. Similarly, a discriminating purchaser of a business would value the firm less than a non-discriminating purchaser. Thus, the purchaser willing to pay the highest price would tend to be the nondiscriminating buyer.42 Consequently, the aggregate result is that this competitive process will eventually drive discriminatory firms from the market. The significance is that total utility is allegedly enhanced. The market is regarded as the ideal allocative mechanism, the optimum means of aggregating individual preferences and virtually all legal interventions by government can only reduce wealth and utility. In actual practice, there is no real cost to firms that either consistently or periodically discriminate.43 In fact it is possible to argue that antidiscrimination legislation can actually be efficient by adding a legal penalty to the market which accelerates so called longer term market trends toward a non-discriminatory equilibrium. Thus, overall utility can be enhanced by legislative interventions in the market.44 This is the fear invoking their rights will lead to reprisal, ridicule and backlash. This wide diversity among disabled individuals also reflects society generally, thus, preferences and satisfactions are not reliable indicators of quality of life. 41 Gary Becker, The Economics of Discrimination, (Chicago: U. of Chicago Press, 2d edition, 1971) at 44 (Becker uses money as the measure of discrimination and discriminating persons are seen as willing to forfeit income if they are able to avoid certain transactions relating to the race of employees, and the same reasoning can be applied to discrimination against disabled persons). 42 John Donohue III, “Is Title VII Efficient?” (1986) 134 U. Pa L. Rev. 1411 at 1415-17 (saying that employer discrimination against minorities shifts the supply curve for minority labour up, and herein, it is reasonable to say the same reasoning can be applied to persons with disabilities). 43 There is no real cost unless they are caught, but the risk of being caught is very low, particularly if the discrimination is subtle. 44 Richard Posner, Economic Analysis of Law, (Boston: Little Brown, 3rd Ed., 1986) at 622 (Posner argues against this view saying that this assumes the costs associated with enforcing discrimination laws are negligible, but that they might

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argument that more liberal utilitarians would make. Of course, this analysis assumes, irrespective of what side of the argument one takes, that all firms are efficiency maximizing. In fact, this also is not true. Firms may sacrifice efficiencies for harmonious relationships with staff, a desire to show themselves off as a wage leader, a desire to present themselves as community leaders or a variety of other reasons not directly associated with efficiency. Utilitarian theorists contend that in the long run, the non-competitive and discriminating firms will be put out of business by the workings of market forces. 45 But, legislation designed to forbid discrimination against the disabled is a rejection of the utilitarian argument, at least to some extent. Or in the alternative, it may be argued that such legislation may actually accelerate the market trend towards a non-discriminatory equilibrium.46 Others recognize problems with either perspective. As discussed subsequently, Sen has great difficulty with the use of a unitary measure of utility, or with the use of money as a surrogate measure.47 actually be significant. Moreover, he also notes that the costs to discriminatory whites of associating with blacks are “real costs” for which whites are willing to pay and that laws requiring association do nothing to reduce or compensate whites for those real costs. Applying the same logic to the disabled, laws benefiting the disabled will be harmful to overall welfare, because the non-disabled are willing to pay the costs of not being associated with the disabled); see also, John Donohue III, “Further Thoughts on Employment Discrimination Legislation : A Reply to Judge Posner,” (1987) 136 U.Pa. L. Rev. 523. 45 Some utilitarians, particularly those arguing efficiency’s normative appeal, seem to have a strong preference for reliance on the market as the only means of achieving efficiency and thereby maximizing total utility. But, they frequently assume that all preferences can be diminished down to monetary values, and that willingness to pay is the appropriate means of measuring value. Under such assumptions, the disabled would have to bear the costs of their own accommodations, an unlikely prospect given their destitute financial status. See, Richard Posner, “Economic Analysis of Law”, (1986) 3rd ed., at 11, 622-23 (Posner suggests that the disabled can compete freely in the market by accepting a payment less than able-bodied persons); see also, Becker, at 14-16. 46 Donohue, at 1415-17. 47 Amartya Sen, On Ethics and Economics, (Oxford; New York, N.Y.: B. Blackwell, 1987) at 29 (in addition, Sen criticized the utilitarian assertions and law and economic interpretations saying that “contact with the outside world has been mainly in the form of a one-way relationship by which findings of predictive economics are allowed to influence welfare economic analysis, but welfare economic ideas are not allowed to influence predictive economics, since actual 23

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And still others, even utilitarians such as Sunstein, have recognized that discriminatory attitudes are mutable and that legislation can play an educational role.48 Nonetheless, I believe that utilitarianism suffers from some of the same difficulties that belong to the libertarian market generated approach which focuses on freedom of contract. While the utilitarian approach centers on the maximization of overall utility, in so doing it also focuses on maximizing self-interested preferences. To the extent that maximizing preferences can be reasonably thought of as a surrogate for income in a market-based analysis, the utilitarian can be criticized for focusing on a kind of efficiency, or utility enhancement and often compromising on broader distributional equality and justice.49

Equality of Resources In the 1970s and 80s, the political theorists Ronald Dworkin and John Rawls developed complex rationalizations of rights and justice that broke away from libertarian, utilitarian and wealth maximization principles and instead placed more emphasis on egalitarian principles. As a part of this project they determined that justice could require a redistribution of resources. Dworkin argued that liberalism should be structured on the principle of equal concern and respect50 a stark alternative to utilitarian, efficiency and libertarian theories. He argued that egalitarians should not human action is taken to be based on self-interest only, without any impact of ethical considerations or of welfare-economic judgments”). 48 Cass Sunstein, “Legal Interference with Private Preferences” (1986) 53 U. Chi. L. Rev. 1129 at 1137 (discussing the propensity for attitudinal change by becoming accustomed to the legislation and accepting the purpose of the law by education and / or simply the passage of time); see also, Cass Sunstein, “Why Markets Don’t Stop Discrimination” (1991) 8 Soc. Phil. & Poly 22 at 31. 49 Cass Sunstein, Timur Kuran, “Controlling Availability Cascades” in Behavioral Law and Economics, (New York, N.Y.: Cambridge University Press, 2000) (emphasizing the need to use some sort of cost benefit analysis in law and a public policy to ensure that “costs are not disproportionate to benefits” and to ensure that policies produce “more good than harm”) at 392-93; (he simultaneously acknowledges that the rigid use of law and economic will produce distorted results and seeks to discover a broader understanding of behavioral economics) at 1-10. 50 Ronald Dworkin, Taking Rights Seriously, (Cambridge, Mass.: Harvard University Press, 1977) at 177-83.

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attempt to fit themselves within the utilitarian framework and contended that they needed to re-examine their goals and the means by which they could be obtained. Dworkin argued that “egalitarians must decide whether the equality they seek is equality of resources or welfare, or some combination of something very different, in order to argue that equality is worth having at all.”51 Efforts to use welfare as a means of supporting greater equality have serious limitations.52 Efforts to pursue an equality of resources is an alternate means of considering equality. John Rawls’ Theory of Justice portrays justice as a complex concept that needs to be "constructed" or analyzed by reference to a wide range of alternative guidelines used to define just treatment. This also appears to presuppose some sort of moral virtue as having a role in the assessment of the distribution of societal goods. The Rawlsian approach to equality identifies a group of basic resources and then seeks to ask questions about their distribution. He does this by presenting "two principles of justice.” The first principle describes the need for "primary goods,” items that everyone is presumed to want. The second principle of justice supplements the first by introducing a justification for both efficiency and equality.53 Rawls argues that the principles of justice are "the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality."54 The initial or original position is one where those embracing Rawls’ principles of justice, do not know their place in society, their class position, social status, class, abilities, natural

51

Ronald Dworkin, “What is Equality? Part 1: Equality of Welfare”, (1981) 10 Phil.& Pub. Aff. 185, at 187. 52 Ronald Dworkin, “What is Equality? Part I1: Equality of Resources”, (1981) 10 Phil.& Pub. Aff. 300 (arguing in favour of a scheme that promotes an equality of resources over a system that favours an equality of welfare; he notes that welfare based approaches assume that persons are equal when no further distributions would leave them more equal in welfare. In that welfare based approaches are sensitive in this way, transfers to disadvantaged (such as the disabled) would appear to be almost limitless, but in fact would be restricted by politics; Dworkin say the we must look to an equality of resources to find a distributional strategy such that differences in personality, preferences and ambitions, become sensitive factors in the distribution process). 53 John Rawls, A Theory of Justice, (Cambridge, Mass.: The Belknap Press, 1971) at 60-7 (hereafter A Theory of Justice). 54 Ibid., at 11. 25

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talents, strengths and weaknesses.55 However, in this scenario, the same persons understand, to a sufficient degree, how society works, the operations of markets, the workings of institutions and value the application of realistic constraints on society and its institutions.56 Given this scenario, the question is what principles would society agree upon behind a carefully constructed veil of ignorance. According to Rawls, what actually makes up the original position is to be evaluated in terms of the "circumstances of justice." This approach acknowledges that the initial position is not based on benevolence so wide that it does not recognize conflicts are likely over the relative values of goods. Nevertheless, Rawls’ theory of justice is distinguished from the previously described utilitarian arguments by virtue of the fact that it is does not assume a narrow identification of goods. Rather, it assumes a broad variety of goods, while also assuming that the value of some basic goods are the same.57 The Rawlsian method is based on the view that "natural endowment" is arbitrary from a moral point of view."58 Rawls’ two principles of justice first designate equality as “primary goods” and second, index the primary goods according to efficiency and equality. To remove such arbitrary contingencies, trade-offs between the principles are decided from behind a "veil of ignorance,” and thus will be determined from an "original position of equality."59 The focus of this selection process is that individuals 55

Ibid. Ibid. 57 Ibid., at 217. Nevertheless, Rawls rejected the idea of having a distribution of primary goods according to virtue or moral worth. He has noted that: there is a tendency for common sense to suppose that income and wealth, and the good things in life generally, should be distributed according to moral desert. Justice is happiness according to virtue. While it is recognized that this ideal can never be fully carried out, it is the appropriate conception of distributive justice, at least as a prima facie principle, and society should try to realize it as circumstances permit. Now justice as fairness rejects this conception. Such a principle, would not be chosen in the original position. There seems to be no way of defining the requisite criterion in that situation. Moreover, the notion of distribution according to virtue fails to distinguish between moral desert and legitimate expectations ... 58 Ibid., at 15; see also, Rawls, Political Liberalism, (New York, N.Y.: Columbia University Press, 1993) at 25-27 (hereafter, Political Liberalism). 59 Ibid., at 12, 137 (basic liberties such as “rights, liberties, opportunities, 56

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choose principles of justice based on the knowledge that they60 may be among the members of the least advantaged class in society. Rawls calls his basic resources list, "primary goods" and as such, they are intended to be those items that all rational individuals, without regard to their own particular plans in life, would desire as essential for carrying out those plans.61 The items that Rawls identified as those that should be on the list of primary goods included rights and liberties, powers and opportunities, income and wealth, and self-respect.62 Subsequently, Rawls has also expanded this basic list to include freedom of movement and freedom of occupation.63 This modification would certainly appear, at least on the surface, to expand opportunities for those with disabilities.64 As noted above, Rawls' second principle supplements the first by adding efficiency and equality as evaluative factors to be used in assessing advantage. All inequalities are rebuked unless they work out to "everyone's advantage."65 The Rawlsian analysis uses the "Difference income and wealth, and the social basis of self-respect” are distinct and have priority over other primary goods). 60 The “they” stands for the individual members of society. Rawls is dealing with what kind of society individuals would choose if they did not know their personal characteristics or position in society. The individuals would not know whether they would be net recipients or contributors and do not know whether they are likely to be among the better off or worse off in society. According to Rawls, this is truly the just state. 61 Ibid., at 62, 94 and 397. 62 Ibid., at 62. 63 John Rawls, Political Liberalism, at 181 (it seems that the extension of primary resources was at least in part to accommodate criticism regarding the need to accommodate the disabled). 64 The objective of the listing is to identify those goods and services that fall within the domain of basic needs and ensure distribution on the basis of actual needs. The analysis assumes that the needs of all individuals are equally important. Those who are better off and those who are less well off are measured by the list of needs. This information is then used to ascertain the actions necessary for justice. The list consists of broadly defined needs. Society, power, liberty, opportunity and self-respect and freedoms focus on the relationship between society and all individuals. Income and wealth are items that are the measures of who, ultimately, is better and who is worse off. However, Rawls did not see this list of goods as being an exhaustive list of those things that were valuable in life. Rather, Rawls sought to avoid prescription of basic values. He notes that persons must be able to choose for themselves such values. 65 John Rawls, Political Liberalism, at 62, 65. 27

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Principle" to ascertain the priority to be given to improving the worst-off persons. The measurement method is deliberately intended to be nonutilitarian as the focus is on primary goods, not individual utilities.66 Interestingly, this iterative process seems to be aimed at providing a kind of equality where no allocation of advantages makes anyone worse off than the prior allocations. However, this appears to be strangely analogous to the pareto optimality commonly used in the literature on utility and law and economics.67 Is it a kind of pareto condition without the guidance of defined utility functions? Or does it in fact attempt to import an element of the market approach or utilitarianism into the Rawlsian concept of equality? Each of these questions can plausibly be answered in the affirmative. Rawls notes that natural primary goods such as health "are not under control" of the basic structure.68 This contention by Rawls appears to convey a distinct inclination toward the utilitarian, at least insofar as determining the membership of the least advantaged class.69 Rawls defines the least advantaged as those with the fewest primary goods and, via the difference principle, his analysis of the least advantaged focused almost entirely on the primary goods of income and wealth. Thus, this concentration suggests that he considered the least advantaged class to be that "specified by the level of income and wealth."70 Certainly, people with disabilities have little wealth. This 66

Ibid., at 6-7 (under the Rawl's method, the principle of liberty, is lexically antecedent to the second principle and the second cannot compel even a minuscule violation of the first principle; in addition, the first condition of the second principle is antecedent to the second condition of the second principle. It is this second condition of the second principle that identifies the need to remedy inequalities so that result is to the "greatest benefit of the least advantaged" and it is this condition Rawl's identifies as the Difference Principle). 67 See, Jules Coleman, “The Economic Analysis of Law,” in J.R. Pennock and J.W. Chapman, eds., Nomos XXIV, Ethics, Economics and the Law, (NY: NYU Press, 1982) at 83-103. 68 Rawls, Theory of Justice, at 62. 69 Mark Stein, “Normative Law and Economics Revisited, Rawls on Redistribution to the Disabled,” (1998) 6 Geo. Mason U.L. Rev. 997 (hereafter Stein, Redistribution); see also, Ian Shapiro, The Evolution of Rights in Liberal Theory, (Cambridge; New York: Cambridge University Press, 1986) at 241-42, and 286-87 (1986) (contending that there are utilitarian characteristics in Rawls’ theory of justice). 70 Rawls, Theory of Justice, at 97-98 (indicating that representative individuals are "specified by the level of income and wealth"); see also, Rawls, Political

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suggests that income might be an effective surrogate for disability. The magnitude of any redistribution is a central question in this kind of analysis. If only slight benefits are obtained, then under this kind of a redistributive scheme, the disabled will be virtually left out.71 Additionally, and more importantly, the theory does not satisfactorily address the insidious aspects of disability discrimination.72 It is not so much that Rawls’ approach cannot theoretically accommodate and satisfactorily incorporate disability protections, the problem is that it, as a theory, it tends to “stay on the surface” and lacks specific orientation to disability fairness.73 I believe the Rawls approach will consistently produce an insufficient redistribution to the disabled. A disabled-centered egalitarian approach might be an alternative way of using the Rawls method. However, some have argued that such a system would be improper and result in an enormous redistribution of resources to

Liberalism, at 7 (also referencing the least advantaged class as determined by the variables income and wealth). 71 See, Will Kymlicka, Contemporary Political Philosophy: An Introduction, (Oxford: Clarendon Press; New York, N.Y.: Oxford Univ. Press, 1990) at 72-76 (arguing that Rawls assesses advantage in terms of the proportion of social goods that one possesses, and that slightly more resources for the disabled makes them better off than before, even if the additional resources are insufficient to accommodate their needs. Kymlicka also observes that Rawls recognizes that persons born into disadvantaged position by class should not be denied social benefits, and if so disadvantaged they are provided with compensation. Yet, at the same time, Rawls excludes ‘natural goods’ from his index of who the worst off are; moreover, he does not provide for any compensatory allowances for those persons who are ‘naturally disadvantaged’). 72 Kimberly Yuracko, “Toward Feminist Perfectionism: A Radical Critique of Rawlsian Liberalism,” (1995) 6 UCLA Women’s L.J. 1 (saying Rawls’ focus on value neutral liberalism does not address those aspects of gender and inequality resulting from women’s and men’s socially constructed conceptions of self and self-worth, political and public equality and a perfectionist moral pluralism; the same can be said for those with disabilities; Yuracko’s argument appears to directed at producing an equality of result). 73 See, John Rawls, “Justice As Fairness: Political not Metaphysical” (1985) 14 Phil. & Pub. Affs. 223, 230 (Rawls explains that by eschewing a general moral conception the concepts of justice and fairness “deliberately stays on the surface, philosophically speaking” and thereby, as a theory, it can be more accommodating to justice. While this is true, and it can be viewed as a strength, it is also simultaneously a weakness). 29

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the most severely disabled.74 Others have argued the identification of the disabled as the least advantaged is not only appropriate, but would not generate an excessive redistribution of resources to the disabled.75 These competing convictions demonstrate that the application of Rawlsian equality to the disabled is, in the least, problematic.76 Amartya Sen strongly critiqued Rawls’ two principles of justice and its resulting representation of equality. The basis of Sen's argument with Rawlsian equality is that the breadth of the resources identified by Rawls is insufficient to adequately answer the questions of who is better off and who is worse off.77 Sen emphasizes that "the primary goods approach seems to take little note of the diversity of human beings."78 He argues that the Rawlsian approach fails to consider that individuals vary greatly in terms of their need for resources and their capacity to convert resources into items which meet their particular needs.79 This insight is critically 74 Mark Stein, “Normative Law and Economics Revisited, Rawls on Redistribution to the Disabled,” (1998) 6 Geo. Mason U.L. Rev. 997, at 1001 (hereinafter, Stein, “Redistribution”) (Stein argues the possibility of two extreme positions and that under Rawls’s theory, there will be either excessive redistribution, or insufficient redistribution to the disabled; with severe disabilities as the least advantaged class, redistribution will be excessive, and with the poor at the least advantaged class, the redistribution will be far too insufficient) ibid., at 1002. 75 Robert Gray, “The Essential Functions Limitation on the Civil Rights of People with Disabilitiesand John Rawls' Concept of Social Justice,” (1992) 22 N.M. L. Rev. 295, at 311-314 (Gray argues that the disabled should be considered the least advantaged class and he believes that such an identification would not require any radical redistribution to the disabled). 76 And even if the disabled are identified as the least advantaged, then the resulting benefits will be extended only to the most severely disabled. The Rawls framework does not address the needs of those with significant, but lesser disabilities that also sharply and unfairly confine life choices. Consequently, the vast majority of the disabled will still remain outside the resulting redistributive benefits. 77 See, Amartya Sen, Equality of What?, The Tanner Lectures on Human Values 195 (Sterling M. McMurrin ed., 1980), reprinted in Choice, Welfare and Measurement, (1982) at 353, (hereinafter Equality of What?) (Sen argues that the most comprehensive kind of equality is an equality that is centered on capability). 78 Equality of What? at 366. 79 The heterogeneity in disability types as well as the range in severity of disability among those persons with physical and mental handicaps is actually quite significant. Is it actually possible that any kind of a listing of resources will

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significant in that the breadth of needs within the disabled community varies greatly and, thus, the Rawlsian approach appears to be insensitive to the diversity of disabled needs80 (note that the term leximin is used by Sen to identify a kind of utility maximin that is not structured on individual utilities, but on an index of primary goods). There might be viable support for a resolution to this dilemma in the approach to the arguments that Rawls advances himself. He emphasizes that any analysis of the concept of justice is to be examined from the perspective of what he calls "reflective equilibrium." Is this not really justification for more flexibility or perhaps “reflective considered judgment” in the application of his theory? According to Rawls, inequalities are to be denounced, unless they work out to the advantage of all. Thus, to Rawls the task of formulating and justifying principles of justice must take place within this aura of a "reflective equilibrium." This appears to act as adjustment process which is further facilitated by the application of the Difference Principle, where precedence is given to improving the interests of the worst off. It seems that this entire process cannot be carried out without importing some utilitarian concepts into the analysis. Consequently, it appears to fail to adequately address the needs of those persons with disabilities, in part, for

provide a uniform theoretical structure upon which policy concerning disability might be based? This raises questions about the suitability of Rawlsian equality as an argument for broad based services to persons with disabilities. Thus Rawls’ theory lacks the flexibility to deal with the complexity of needs for persons with disabilities. Is there any basis for a reliable theoretical foundation for such persons? In the alternative, is agnosticism defensible within legal theory? 80 Amartya Sen, Equality of What? pp. 157; (quoting Rawls, J, A Kantian Concept of Equality, Cambridge Review (February, 1975) at 96); Sen in a critique of Rawls' notion of equality gives an example of a cripple with a utility disadvantage. He notes that: leximin will give him [the disabled person] more income in a pure distribution problem. Utilitarianism ... will give him less. The Difference Principle will give him neither more or less on the grounds of his being a cripple. His utility disadvantage will be irrelevant to the Difference Principle. This may seem hard, and I think it is. Rawls justifies this by pointing out that "hard cases" can "distract our moral perception by leading us to think of people distant from us whose fate arouses pity and anxiety." This can be so, but hard cases do exist, and to take disabilities, or special health needs, or physical or mental defects, as morally irrelevant, or to leave them out for fear of making a mistake, may guarantee that the opposite mistake will be made. Ibid. 31

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some of the same reasons that utilitarian arguments fail. Rawls sought to address the criticism that his theory failed to provide adequate redistribution to the disabled. In Political Liberalism, Rawls expanded the list of primary goods to include “certain mental states such as the freedom from physical pain.”81 This is a very weak accommodation at best. While certainly some of the disabled are likely to live in continuous physical pain, many do not. It is not clear what this means in terms of equality. In addition, the unrecognized utilitarian element is associated with the weighing of benefits. This notion of balancing the benefits derived from certain treatment of the disabled against the cost to everyone else, a comparison within Rawls that is necessary at least to some extent, would seem to gravely undermine the very egalitarian objective of the theory. The likely outcome of this process is a restricted form of equality for those with disabilities.82 Finally, Rawls seeks to use value-neutral principles as the foundation for his original position and, as part of the procedure for formulating and justifying the principles of justice, he seeks to use a reflective equilibrium.83 His theory pretends to be committed to value-neutral liberalism, a political pluralism84 that can provide a broad-based equality for the least advantaged class. This would seem, at first blush, to include those with disabilities. A more in-depth analysis suggests that Rawls’ justice would largely ignore those with disabilities.85 81

Rawls, Political Liberalism, at 182. An alternative way of looking at this set of arguments might lead us to a very different result; it could be argued that an expanded rendering of what makes up a primary good might be thought to broadly extend benefits to those with disabilities. Rawls’ effort to broaden the scope of primary goods certainly suggests a great sensitivity to issues of disability. To the extent that primary goods might be analogous to the concepts of major life activities under the ADA, then a wide scope of what constitutes a primary good may support the idea of an generous interpretation of what constitutes a major life activity. 83 This reflective equilibrium balances first impressions about what justice requires with working out their consequences. See, Stephen Utz, Tax Policy, An Introduction and Survey of the Principal Debates, (St. Paul, MN: West Pub. Co.,1993) at 65 (discussing the workings of Rawls’ analysis). 84 Rawls has also called this primary goods neutralism “reasonable pluralism,” see, John Rawls, Political Liberalism (1993) at 181, 187 (this interest in pluralism is consistent with a broad interpretation of congressional intent with respect to the scope of the ADA, subject to the qualification of being “reasonable”). 85 See generally, Stein, Redistribution. (describing Rawls’ theory as vacillating 82

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This same liberalism assumes that all people make their own rational choices based on self-interest. Then behind a veil of ignorance, without knowing whether one has a disability, or the nature of the disability, it is possible to arrive at principles of justice that accommodate a wide range of both physical and mental disabilities. Rawls assumes that people will, through education and knowledge about political rights, arrive at, endorse and act upon impartial and generous human perspectives. This is simply unrealistic. He is much too confident that people will act in accord with ideologically fair-minded values. If such benevolence was so common, people with physical disabilities would not be treated differently, people with mental disabilities would not be regarded as having no rights, and those with learning disabilities would not be stereotyped as unintelligent.86 The primary goods theory does not appear to proffer arguments that adequately protect the equality rights of the disabled. Under the Rawlsian theory of justice, the disabled are apparently unable to successfully convert resources into useful results that permit the acquisition of equality. Rawls is most interested in creating a list of primary goods, and not so much interested in the use of the goods to create equality.87 The foremost feasible alternative discussed above, the utilitarian approach, differs quite significantly. It deals with the reaction of people to the delivery of goods: satisfaction, not equality. Accordingly, what appears to be most missing in each of these theories is a wider human sensitivity; the idea of what some term as human capabilities.

Capabilities As An Approach to Equality Amartya Sen has suggested that it is possible to construct a theory of equality that is based on a combination of utilitarian and Rawlsian theories of equality. He recognizes that the Rawlsian list of primary goods is between two extremes of excessive distribution to the disabled and insufficient distribution to the disabled. Stein says that using the “proper” definition of least advantaged class, those with severe disabilities, would lead to an excessive redistribution and the alternative definition, the poor, would produce an insufficient benefit for those with disabilities). 86 In fact, some people with physical disabilities are much more active and perhaps, even more physically fit than those who might be regarded as the nondisabled in society. 87 Stated in another way, it seems that Rawls is focusing exclusively on the distribution of resources, not the production of resources. 33

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defined broadly, to be so inclusive as to properly encompass rights. Rights are also seen as an important foundation for the capabilities approach. Nevertheless, Sen sees the primary goods approach as “being concerned with good things rather than what these good things do to human beings.”88 He has called his improved alternative "basic capability equality" which seeks to convert goods into something that can be used to successfully establish equality. Sen sees such basic capabilities as those that enable one to do certain things including, for example, the ability to physically move around beyond one’s immediate space freely, to care for one’s own nutritional, clothing, and shelter requirements, and the capacity to participate in the social life of the community.89 Sen feels there is a notion of urgency associated with the kinds of items that would fit into his focus on basic capabilities and there is a need to ensure that the resources can be utilized to reduce the impact of a disability by an “interpretation of needs and interests.”90 The capabilities approach recognizes that all persons should have certain basic entitlements. It is structured upon the language of rights: that people deserve protections irrespective of where they are situated in life. Some argue that such rights should be based on sentience,91 others argue in terms of natural rights,92 while others contend that all rights derive from the state and still others assert that rights depend in some way on the 88

Amartya Sen, Equality of What? at 160. Equality of What? at 160 (Sen’s identification of items to be included within the concept of basic equality, his “list”, seems strangely similar to Rawls’ list of primary goods, however, Sen distinguishes his basic items by saying that his focus is on“shifting attention from goods to what the goods do to human beings”). Ibid. at 160-61. 90 Ibid. at 160 (it is interesting to note that sensitivity to “needs” and “interests” may suggest that an element of the capabilities approach might include aspects of the environmental and experiential approaches discussed in the following sections of this paper; to take into account the needs and interests of the disabled would presumptively require some endeavour to obtain the life experiences of the same disabled persons). 91 Peter Singer, Animal Liberation, (New York: 2d Edition, Random House, 1990); see generally, Singer, Peter, ed. The Great Ape Project: Equality Beyond Humanity, (New York: St. Martin’s Press, 1993). 92 Immanuel Kant, “The Metaphysics of Morals,” In Kant: Political Writings, Hans Reis ed. H. Nisbet translator, (Cambridge: Cambridge Univ. Press, 2nd ed. 1991). 89

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possession of capacity to reason.93 The capabilities approach to equality attempts to combine each of these sources of rights with an acknowledgment that people are entitled to a certain material and social equality. In broad terms, these rights are human rights and are those claims essential to the fulfillment of important needs.94 Such rights are also a “claim to something (whether a freedom, a good, or a benefit) of crucial importance for human life.”95 This is the foundation upon which the capabilities approach is structured. The concept of capability described by Nussbaum is virtually identical to that portrayed by Amartya Sen.96 She articulates a view of capability that was based in part on the Aristotelian notion of human capability and human functioning to describe the goals of "good" political organization.97 Sen also focused his views about basic capability on similar attitudes in ancient writings about rights.98 Accordingly, the 93 T. Paine, Rights of Man - Common Sense, (New York, N.Y.: Alfred A. Knopf, 1994) at 80-85 (on the French declaration of rights of man and citizens). 94 Alan Gewirth, “The Epistemology of Human Rights,” in Human Rights, Paul, E., Paul J., Miller F. eds.(Oxford: Basil Blackwell, 1984) (an attempt to describe a basic framework for human rights and to describe how far they should extend). 95 Susan, Moller, Okin, “Liberty and Welfare: Some Issues in Human Rights Theory,” in Nomos XXIII: Human Rights, ed. J. Roland Pennock and John W. Chapman (New York, NY Univ. Press, 1981) at 235. (listing three types of important human needs: basic physical goods, physical security and being treated with respect). 96 See, Shelley Tremain, An Anti-Ableist Re-examination of Disablement and Social Justice, (Toronto, Ontario: York U. Phd Thesis, 1998) at 96, 125, 134-6 (hereafter “Tremain”) (distinguishing between Nussbaum and Sen saying that Nussbaum emphasizes the roots of her interpretation of the basic capabilities approach in the Aristotalian conceptions of the human being and good human functioning in harmony together with political institutions and political planning; Tremain is critical of Nussbaum’s belief that a procedure that uses “human functionings’ as a means of improving Sen’s equality of capabilities). 97 Martha Nussbaum, “Nature, Function and Capability: Aristotle on Political Distribution,” in Oxford Studies in Ancient Philosophy, Supplementary Volume, Annas & Grimm eds. (Oxford U. Press, 1988) at 145; see also, Ann Hubbard, “Meaningful Lives and Major Life Activities; Symposium: Disability Law, Equality, and Difference: American Disability Law and the Civil Rights Model” (2004) 55 Ala. L. Rev. 997 (Hubbard provides an overview of Nussbaum’sapproach to capabilities starting with basic human functionings, foundational capabilities and cognitive capabilities). 98 Amartya Sen, Inequality Reexamined, (New York N.Y.: Russell Sage 35

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capabilities approach has been structured around a discussion of basic entitlements for all persons. The heart of the approach is on one's abilities to assume and undertake tasks considered valuable. According to Nussbaum, Sen has focused his capabilities approach on the general defense of the capability space.99 She argues that Sen has not offered any tangible account of what the most central human capabilities consist of. Sen does acknowledge, to some degree, that he identifies the most central human capabilities by focusing on some areas of human life and not on others.100 This might be the most significant problem with Sen’s basic capabilities approach. This difficulty is analogous to the selection of primary goods problem within the Rawlsian approach to equality. Because people are different from each other, they are likely to disagree about what is most important in life, but it is also this same difference that poses the greatest challenge to equality theory.101 Sen recognizes this predicament. He calls it a problem of “indexing basic capability bundles.”102 Some ordering of capabilities is necessary and some must be undertaken on the basis of a “broad uniformity of personal preferences,” however, some “personal preferences must be supplanted by certain established conventions of relative importance.”103 In broad terms, the capabilities approach must provide something that people from many different traditions can agree upon as the foundational basis of a good life.104 The individual elements of this foundational Foundation,1992). 99 See, “Capabilities and Human Rights,” at 285. 100 United Nations Development Programme, Human Development Report 1996; see also, United Nations Development Programme, Human Development Report 1993. 101 This would appear to also present a difficulty for those with disabilities because the range of disablement and the capabilities of these persons differs quite significantly. Because people and disabilities are different, it is difficult to develop theory (and law) flexible enough to ensure adequate protection. 102 Sen, Equality of What? in “Liberty, Equality and Law” (1987) at 161. 103 Ibid., (Sen sees the basic capabilities approach as being unavoidably culture dependent, especially in the weighing of capabilities, a problem shared with Rawls’ work; however, it avoids the “fetishism” of being afflicted with a focus on primary goods). 104 Nussbaum at 287 (arguing for a list of human capabilities as being the essential components of a good life; the list consisting of life, bodily health, bodily integrity, senses, imagination, thought, emotions, practical reason, affiliation, friendship, respect, play and control over one’s environment).

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structure need not be entirely congruous with each other as reasoning itself will necessitate a selection from among alternative capabilities. If dissonance occurs, then liberal compromise should take place. What is much more critical is the need to ensure an extensive and open-ended identification of capabilities.105 This open-endedness is the pivotal factor.106 Without it the capabilities approach will likely suffer many of the same failings as the culturally dependent utilitarian approach.107 In fact, Nussbaum regards functionings as inherently valuable, and that if one does not have all of the functionings, then that person is not “fully human.” Her essential functionings are the five senses, the ability to move about, avoid unnecessary pain, be able to form a conception of the good, be able to engage in critical reflection on one’s life, and be able to laugh, play and participate in recreation.108 People who lack these 105

Tremain, at 124-5, 159 (saying Sen sees such flexibility as a virtue, but Nussbaum sees it as exposing a need for a procedure of objective evaluation for the assessment of the way disparate functionings contribute to the good life; Tremain sees both writers focusing on capabilities and human functioning (as well as the moral urgency described by Sen) as an effort to transform disabled people so as to, in effect, make them equal with the non-disabled; Tremain believes that Nussbaum correctly recognizes it is not self-evidently true that it is better to have more money and possessions than less, but she fails to recognize the applicability of the same argument to various human functionings). 106 Jerome Bickenbach, Physical Disability and Social Policy, (Toronto, Ontario: University of Toronto Press, 1993) (Bickenbach sees this flexibility as desirable, arguing that disabilities are limitations on an individual’s positive freedom and that Sen’s capabilities approach provides a plan of distribution that should maximize one’s positive freedom; he calls Sen’s theory “immediately attractive” as a “normative basis for disability policy”) at 267. 107 The tricky question is whether the basic capabilities approach to equality can avoid culture dependence. If it can, then the self imposition of costs, assessment of benefits and similar decision-making considerations made on the basis of trading-off on a wide variety of quantitative and qualitative information. The process could be entirely quantitative or completely qualitative, but would most probably be a combination of the two. Politics is also unavoidably part of this process. Disabilities alone do not produce disablement. The surrounding environment is part of this identification as well. Neither Sen or Nussbaum address this question of environment. Environments are created and maintained by people and for people who function largely at ease within the dominant customs. Traditionally, those who are not a good fit within predominant conventions find themselves neglected. 108 Martha Nussbaum, “Human Functioning and Social Justice: In Defense of 37

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capabilities in life are regarded as not fully human.109 But, to be effective this theoretical approach must be made sensitive to the capabilities of nondominant groups. The theory needs to focus on the abilities of the disabled, not on their disablement.110 If dominant culture defines and selects the relevant basic capabilities, then it is unlikely the capabilities approach will broadly accommodate the needs of the disabled.111 But, if the dominant culture is the “normal” culture, then how can any kind of approach to equality produce sufficient agreement acceptable to those not fitting in the dominant “normal” culture.112 How can we create a theoretical approach to equality that will actually incorporate the needs of marginalized groups? We need to look to them and hear their voices.113 Environment is closely connected to the issue of dominant culture. Aristotelian Social Democracy,” (1992) 20 Political Theory 202, at 215, 220, 224. 109 Tremain, at 157-8 (Tremain describes Nussbaum’s internalist essentialism, self interpretations and self evaluations and doubts whether Nussbaum actually endorses use of cultural conversations and stories about human functionings; such stories would be in disagreement with Nussbaum’s argument that such stories constitute a lack of humanness). 110 Michael Ashley Stein, “Under the Empirical Radar: An Initial Expressive Law Analysis of the ADA” (2004) 90 Va. L. Rev. 1151 (discussing Rights of Inclusion by Engel and Munger and the failures of the classical rights and critical rights theories with respect to including the needs of those with disabilities and postulating the need for a new rights theory). 111 Ibid., at 146 - 152 (arguing that Nussbaum’s “essential human functionings, can deny justice to people who possess some of the “functionings” but who do not possess all of the allegedly essential human functionings; Nussbaum herself concedes the process requires that we select certain human functionings as more basic than others; this problem is serious as it exposes Nussbaum’s and Sen’s work to the same issues connected to selecting primary resources under Rawls approach, a ranking of primary resources, or of bundles of capabilities, or of human functionings; each still contributes to the disvaluing of disabilities and a loss of self worth). 112 Ibid., at 123, 160 (even if ‘cripples’ have access to and ownership of resources (social power), they still are unequal; so even if people can be normalized in some way, transformed, they still will not be normal and hence will still be unequal). 113 Ibid., at 160 (Tremain seems to fear that stories, experiences, as part of equality process, will actually perpetuate the problem of differences, by reinforcing stereotypes; there is truth in this fear, but it can also be an effective means of battling the imposition of stereotypes - the critical issue is who is telling the story, the disabled or the “normalizers”).

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Culture creates environment, influences capabilities and magnifies disability. These problems can be addressed, at least in part, by looking more broadly to the interactive experience of persons within our society; and as discussed herein, examining experience with a particular focus on needs, wants, rights, work, social interaction, and identity. In particular, these factors impact those with disabilities and raise significant issues of experience.114 Experience is closely associated with employment, full 114

I have sometimes referred to an approach that actually incorporates the needs of the marginalized groups as experiential capabilities. This refers to the lived experience of persons with disabilities, their daily encounters with obstacles to perform common tasks as well as the actions they take to overcome such barriers. The focus of such an approach is upon the need to see life through the eyes of the disabled. The experiential capabilities approach would try to draw on the basic capabilities approach of Sen and Nussbaum while also trying to avoid its failings, particularly its culture dependence. It would also, of course, place limited importance on economic efficiency and emphasize an expansive interpretation of basic capability bundles and basic rights. With respect to experience, Harlan Hahn has identified a number of important environmental and fundamental considerations at work in disability law. Harlan Hahn, “Disability Policy and the Problem of Discrimination,” (1985) 29 Amer. Behav. Scientist 293, at 294; see also, R. Bales, “Libertarianism, Environmentalism, and Utilitarianism: An Examination of the Theoretical Frameworks for Enforcing Title I of the Americans with Disabilities Act” (1993) 1993 Det. C. L. Rev. 1163 at 1190. He and others have argued that the law is not neutral and that it “legitimizes and protects prior distributions of property.” R. Bales, at 1190; see also, Morton Horwitz, The Transformation of American Law, 1880-1960, (New York, N.Y.: Oxford Univ. Press, 1992) (explaining that the law is not neutral and that it strengthens prior property distributions). Hahn has also argued that there was no reason why the law and prior distributions could not be changed. His assertion is that disability is a social construct, a view consistent with that described by Bales. Ibid., at 1191; see also, Tremain, at 194. Hahn’s view is abstracted well in Accommodating the Spectrum, as is noted by Bales: “[the environmental view] emphasizes that societal actions and prejudice restrict opportunities for people with mental and physical limitations; the selection of architectural options other than ramps, elevators, or wide doors is the cause of handicap discrimination. Proponents of this view hold that there are no handicapped people - that it is society that “handicaps” people. Ignorant of their abilities and designed to operate without them, societal choices are seen as excluding people handicaps.” Harlen Hahn, United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, (Washington, D.C.:1983) at 86; see also, Anita Silvers, David Wasserman, Mary Mahowald, 39

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participation in society and identity. Equality: Acknowledging the Role of Experience Disability laws are intended to fulfill aspirations to enhance equality. The nature and degree of equality is often controversial. Above I have sketched a wide range of theoretical approaches to the concept of equality. These justify a range of policy approaches from no or limited protections and a reliance on market principles to work out a form of equality to more significant interventions aimed at achieving egalitarian objectives. The efficiency theorists, such as Posner, seek to maximize wealth. Equality is subservient to efficiency. Utilitarianism also seeks to maximize total benefit; efficiency can sometimes be a factor. Utilitarian efforts to equalize welfare are also plagued by the problems of expensive tastes and sometimes offensive tastes. Should needs always trump wants? An equality of primary resources is really an equality of basic course-oflife needs. Is this really enough? Rawls’ difference principle suggests that inequalities are justified when they improve the lot of the disabled to a point where they are as well off as such persons can possibly be. Total utility also creeps into his analysis.115 Sen’s capabilities and functionings Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy, (Lanham, MD: Rowman & Littlefield Publishers, 1998) at 298-302. Harlan Lane’s work about the experience of the deaf community and the efforts by government and society to dispense assistance are excellent examples of this need to include the lived experiences of the disabled. Harlan, Lane, The Mask of Benevolence, Disabling the Deaf Community, (New York, N.Y.: Alfred A. Knopf, 1998). Decisions regarding disability were based on stigma and stereotype. When dealing with rights, equality and the disabled, the process calls for much more than reliance upon the broad use of utility as a measure of value, or any balancing of costs and benefits or the identification of primary goods, or even basic capability bundles and their subsequent ordering. It calls for listening. It calls for exposure to experience. 115

The introduction of efficiency includes a utilitarian measure. Rawls is not alone among the more egalitarian legal theorists to use utilitarianism as a means of dealing with questions of distribution. Sen and Dworkin seem to do so as well. The question really is whether the balancing of benefits to the disadvantaged (irrespective of whether they are measured by income or severe disability) against the costs to the rest of society should have any place in egalitarian theory? I have no intention of providing any detailed answer to this question because a thorough response is beyond the reach of this book. Costs and benefits may be part of the

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may supplement Rawls’ analysis, but may be indeterminate. What are life’s basic needs? And if the most basic needs are met, should there be an equality of wants? If so, how much? I am not saying that legal theorists should end efforts to distinguish between wants and needs, but, perhaps the notion of what constitutes needs should be expanded. It is essential that any principled theory also include the lived experiences of the disabled. Madame Justice L’Heureux Dube of the Supreme Court of Canada has notably recognized the validity of this viewpoint. She says that in the assessment of discrimination claims, it is necessary to put the discrimination first and focus the analysis on the lived experience of marginalized groups.116 She elaborates by noting that we will never address the problem of discrimination completely, or ferret it out in all it forms, if we continue to focus on abstract categories and generalizations rather than on specific effects. By looking at the grounds for the distinction instead of the impact of the distinction on particular groups, the risk is undertaking an analysis that is distanced and desensitized from real people’s real experiences. Furthermore, in defining the appropriate categories upon which findings of discrimination may be based, we risk relying on conventions and stereotypes about individuals within these categories that, themselves, further entrenched a discriminatory status quo. More often than not, disadvantage arises from the way in which society treats particular individuals, rather than from any characteristic inherent in those individuals.117 An understanding of the lived experiences is critical, not only as a component of legal theory, but as a realistic connection between theory and practice. If legal theory cannot find a way to incorporate lived experience, then legal theory itself becomes less relevant as a structure upon which practical legal solutions to discrimination and equality can be built.118 And then discrete and insular minorities will continue to be subject to stereotyping and marginalization. If legal theory can

analysis, however, an undue reliance on costs and benefits may be used consistently as a basis for denying almost all accommodations of any significance. 116 Egan v. Canada, (1995) 2 S.C.R. 513, 551. 117 Ibid, at 551-52. 118 See generally, Ruth Colker, Pregnant Men: Practice, Theory, and the Law, (Indiana University Press, 1994), 185-196 (Colker argues for an equality theory that incorporates practice; it is an argument that appears to be somewhat analogous to the above described need to find a way to include experience within a rights based theoretical construct). 41

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incorporate the wide range of theoretical concepts discussed herein in one theoretical construct called experiential capabilities, then should not such a theory be considered as a prototype of pluralism or legal pluralism?119 I do not answer these questions here, but simply ask them to invoke further thought. Such answers are beyond the scope of investigation intended for this book. Nonetheless, it remains indispensable to acknowledge work which significantly advances thought within this area. The recent research and analysis of David M. Engel and Frank W. Munger in Rights of Inclusion deals with some of these issues of experience and theory.120 Engel and Munger interviewed people with a variety of disabilities who have not brought legal claims to ascertain their rights. They decided the mere existence of the ADA changed peoples’ perspectives of themselves by creating a vision of work capable employees when provided with opportunity and accommodations. They call for a “new theory” of rights that can account of the experience, identity and life stories of those with disabilities.121 I do concur that this process of identity formation must become part of the theoretical foundations of disability law and hence, a call for a new rights based theory is appropriate. Rights of Inclusion demonstrates that disability rights become operative in both formal and informal contexts. The formal is provided through the judicial system and informal via the identity formed by ADA motivated rights formation. There is no doubt that the perception of rights can empower. This enables people with disabilities to seek accommodations, acquire education and participate in life in a manner that they would not otherwise do. However, Engel and Munger ignore the reality of false rights. In the subsequent chapters of this book, I have articulated in some detail, the

119

Flagg, Barbara, “The Algebra of Pluralism: Subjective Experience As A Constitutional Variable,” (1994) 47 Vand. L. Rev. 273, 323 (discussing problems associated with the subjective experience and the normative bias connected to it; but, also recognizing that when one’s objective is inherently pluralistic, then subjectivity may be appropriate). 120 D. Engel, F. Munger, Rights of Inclusion, Law and Identity in the Life Stories of Americans with Disabilities, (Chicago and London: University of Chicago Press, 2003). 121 Ibid. at 81 - 97 (Engel and Munger review classical rights theory and critical rights theory from the perspective of disability issues and conclude there is a need for a new theory of rights).

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insufficiencies of the ADA. When plaintiffs bring claims, defendants almost always win. I believe that if challenged by legal action though the judicial system, each of the disabled persons interviewed by Engel and Munger would lose their claims in the same way. This would be especially true of those with the so-called hidden disabilities. When plaintiff’s cannot win, then there is disempowerment and a different perception of rights. This experience needs to also be incorporated into any “new theory” of rights related to the ADA. 122 Working through these accounts of equality is a complex task. Each approach has attractive features and deficiencies. However, it is beyond the scope of this book to either answer the above questions or detail these attributes here.123 I am simply interested in presenting the issue of equality and a range of theoretical approaches to distributional equity as a foundation for disability laws in both the United States and Canada. Ideally, for those with disabilities, we should seek an equality that makes everyone equally well-off at the highest level that can be achieved, while simultaneously ensuring a potential for an elevated level of universal well being. This effort must be structured on some type of a rights-based foundation. Theoretical approaches that reject state intervention cannot form a basis for human rights protections. These theories are arguments for rejecting them and not ensuring any real measure of equality. Law and economics and efficiency arguments do not necessarily argue against rights; they just limit them. Law and economics does this while seemingly cloaked in a language of neutrality and scientific fairness. Justice Brennan warned the language of economic analysis can have a “narcotic” effect, creating “an illusion of technical precision and ineluctability.”124 Legislatures may seek goals other than wealth maximization or net benefit in their statutes. The interpretation of such 122

Peter Blanck, “Justice for All? Stories about Americans with Disabilities and Their Civil Rights” (2004) Journal of Gender, Race,& Justice, 8, 1-30 (Blanck relates the stories of people with disabilities to the effectiveness of the ADA; legal theories need to understand these stories). 123 Any detailed discussion about equality and the theoretical foundations for laws protecting persons with disabilities is beyond the scope of this work. However, in Chapter VI, after the comparison of US and Canadian law, some additional comments are offered on the theoretical basis for disability law in light of the comparison undertaken in Chapters IV and V. 124 United States v. Leon, 468 U.S. 897, 929 (1984) (Brennan, J., dissenting). 43

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statutes should reflect this intent,125 not some fetishic attachment to efficiency. Genuine protections call for an expansive equality of opportunity as well as some assurance of equality of result. Costs and benefits can not be ignored, but, they should not be dispositive.126 Nor should welfare, primary resources, capabilities or functionings. Nevertheless, with respect to disability, an amalgam of the above concepts of equality might foster both legislation and judicial interpretations that erroneously overemphasize cost and efficiency considerations. Also, the focus on capabilities and functionings may endorse a biomedical conception of disability. The result? Restrictive definitions of disability that narrow the scope of protections and limit the range of remedies. Moreover, all of the theoretical approaches fail in same respect; they do not recognize the significance of experience. Disability is a social condition, not just a biomedical affliction. In summary, the theoretical perspectives discussed in this chapter can be classified, generally, as consisting of two broad views. First, libertarian, market-based arguments, law and economics, and efficiency theorists, fit into a broad category of theoretical viewpoints where markets, costs, benefits and efficiency predominate. Secondly, Rawlsian, capabilities, environmental and experiential approaches to equality tend to focus less on economics and markets and more on basic rights and needs. While there are significant disagreements among the theorists in each of these two groups, there is a more fundamental tension between the advocates of the market and economics and those arguing for basic rightsbased protections. In the subsequent comparison of disability law in the United States and Canada, this tension between economics, on one hand, and rights on the other, is quite evident. American statutes and the judicial interpretations are often consistent with the more conservative themes 125

Susan Rose-Ackerman, Rethinking the Progressive Agenda, (New York, N.Y.: Free Press, 1992) at 78 (arguing that judges should “interpret regulatory statutes against a background of net benefit maximization” and that Congress could make exceptions, consistent with democratic values but, that such exceptions should be a “clear statement.”). 126 Michael Walzer, “Response” in Pluralism, Justice and Equality, (New York, N.Y.: Oxford University Press, 1995) at 295-96 (efficiency itself is a moral principle, a ‘truncated utilitarianism,’ only a part of the process; equality has meaning only after we know the meaning and value of the goods involved).

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common in law and economics. However, when the scientific pretensions are stripped away, the justification for the economic analysis of law is “found in conservative ideology rather than in the science of mathematical deduction.”127 The ensuing law limits the scope of protective coverage, all seemingly for the purpose of efficiently limiting costs and maximizing wealth. Similarly, reasonable accommodations and undue hardship are subject to a weighing of costs and benefits, often restricting the reach of reasonableness.128 In Canada, there seems to be somewhat less emphasis on costs and benefits.129 The language of rights-based protections are built into Canadian human rights statutes and the statutory coverage is deliberately expansive. Judicial decisions tend to reflect this expansive coverage. Strictly speaking, there is no real significant difference in observations concerning legal theory in the United States and Canada.130 Nevertheless, 127

Robin Paul Malloy, Law and Economics: A Comparative Approach to Theory and Practice, (St. Paul, MN: West Publishing Co., 1990) at 66 (noting that even in the extreme cases of fundamental human rights, the wealth maximization theory looks to a cost and benefit analysis to determine the appropriateness of legal action). 128 Jacqueline Vaughn Switzer, Disabled Rights, American Disability Policy and the Fight for Equality, (Washington, D.C.: Georgetown University Press, 2003) at 109 (Switzer argues that while the ADA seemingly received overwhelming support in congress, there was actually tremendous opposition surrounding its passage, all aimed at reducing the impact of the ADA). 129 There is one critical exception to this statement. In the United States, the ADA has specified precise requirements for the elimination of architectural barriers. The elimination of architectural barriers is a specific statutory requirement. New real estate development must comply with the barrier free design requirements of the ADA. Also, existing buildings have been required to make the changes necessary to comply with the barrier free mandates. Exceptions to the requirements are limited. In Canada, the individual provinces have provided no statutory requirements for the elimination of architectural barriers. Instead, disabled persons must individually take their complaints to human rights commissions and argue there cases each barrier at a time. Defendants can defend on the basis that barrier elimination is too costly. In Ontario, the provincial government fears that such statutory requirements will be too costly for business. 130

The sources of legal theory and the relevant discussions are the same in the two countries as they are in many countries. However, in Canada the courts seems more friendly to positions consistent with more generous models such as those more consistent with equality rights such as capabilities and environmental / 45

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legal theory and public policy view and political ideology are inexorably intertwined. The followers of particular theoretical perspectives can invariably be categorized by ideological preference. In the United States, the prevalent judicial ideology tends to be more conservative. In Canada, it leans to a more fair-minded outlook. I think that it is not so much that Canadian judges and their decisions are liberal, but rather, US decisions are often so conservative, they tend to make Canadian decisions appear progressive, when in fact they are really just moderate judgments.

experiential theories; in the United States, the economic analysis of law, so-called ‘freedom’ models and similar conservative paradigms often have more influence in judicial decision making.

CHAPTER III

Constitutional, Statutory And Legal Framework Introduction Any discussion of disability law and issues of discrimination requires a synopsis of the relevant statutes and the foundational law. The purpose of this chapter is to provide a brief overview of both US and Canadian statutes and law relevant to the analysis of disability questions. In the United States and Canada, much of the early legislation regarding disabilities was based upon providing for the veterans disabled during WWII. In the United States, it was not until the 1960's that a wider range of equality seeking groups became more publicly prominent and Title VII of the Civil Rights Act of 19641 was enacted. This Act was based on a desire to provide equal opportunity to traditionally disenfranchised groups, but unfortunately, persons with disabilities were not included at the time.2 A decade later, the United States adopted the first federal disability antidiscrimination legislation with the passage of the Rehabilitation Act of 1973. This was followed by passage of the Americans with Disabilities Act in 1990. In Canada, human rights legislation emerged from modest and piecemeal statutes designed to prevent discrimination in specific instances such as the delivery of insurance and social services and in employment.3 1

See, 42 U.S.C. §§ 2000e to 2000e-15 (1991). Even today Title VII protections for the disabled are only based on precedence. But, more importantly, Section 705 of Title VII provides for the Equal Employment Opportunity Commission (EEOC) and defines a legal process that is used in many section of the ADA. See, 42 U.S.C. § 2000e-4 (1991). 3 S. Chotalia, The 1997 Annotated Canadian Human Rights Act, (Toronto: Carswell, 1997) (in the introduction to his book, Chotalia provides a general historical overview of human rights legislation in Canada); see generally, W.S. Tarnopolsky, J., Discrimination and the Law, rev. by Pentney (Toronto: Carswell, 1993). 2

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The first detailed statute dealing with human rights was the Saskatchewan Bill of Rights Act in 1947.4 Thereafter, Canadian provinces began to enact human rights laws and in time, protection for persons with disabilities from discrimination was added as prohibited grounds to existing codes. In addition, Canada adopted a new constitution in 1982 which specifically guaranteed equality rights to persons with disabilities. In response to the new constitution, new and amended human rights laws were passed by the Government of Canada and the provinces.

The Constitution of the United States The US constitution does not specifically protect the rights of persons with disabilities. However, the equal protection clause and the due process clause of the Fourteenth Amendment state that: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the law.5 Under the Equal Protection Clause, the government must treat all similarly situated persons alike. A person who claims a violation of the Equal Protection Clause must show 1) that a government action was based on an impermissible classification, or 2) that there has been a denial of a fundamental constitutional right. The standard rule is that all government actions are presumed to be constitutionally valid if the categorizations made by the government are rationally related to a legitimate state interest.6 However, when government differentiates on the basis of national origin or race, the highest level of scrutiny, strict scrutiny, is applied to the legal analysis.7 Interestingly, gender is considered a quasi4

S.S. 1947, c. 35. The Constitution of the United States, Fourteenth Amendment. 6 Plyler v.Doe, 457 U.S. 202, 216 (1982) (providing an articulation of the lowest level of scrutiny that presumes constitutionality of government classifications if the government legislation or conduct is “rationally related to a legitimate state interest.” Note: it is extremely difficult to show that a government action is not related to a legitimate state interest). 7 Ibid. (strict scrutiny provides a high bar, making it difficult for government 5

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suspect class and, thus, is held to an intermediate level of scrutiny, termed heightened scrutiny.8 Unfortunately, because disabled persons are not considered a suspect class under the U.S. constitution, claims of discrimination will be restricted to the lowest level of scrutiny, the rational basis level of review. As a result, there has been very little constitutional litigation in the United States based on disability rights. One of the few constitutional cases which raised disability issues was City of Cleburne v. Cleburne Living Center.9 A zoning ordinance prevented the construction of a group home for the mentally disabled in a residential neighbourhood. It was challenged as a violation of the equal protection clause. The Supreme Court affirmed a lower court decision and invalidated the ordinance, but did so on grounds other than disability discrimination. The court clearly articulated that the disabled were not a suspect class10 and, therefore, not under the protective cover of any special constitutional provision.11 to justify differentiation. Such different treatment impacting suspect classes will be upheld only if the government action is “narrowly tailored to serve a compelling state interest;” strict scrutiny is also applied when government differentiation infringes on all fundamental rights protected by the constitution; unfortunately for people with disabilities, employment is not a fundamental right). 8 Heightened scrutiny is an intermediate level of analysis and calls for gender classifications to be “substantially related to a sufficiently important governmental interest”). 9 473 U.S. 432 (1985) (also explaining levels of scrutiny analysis). 10 The US Supreme Court strongly supported the notion that the disabled were not a suspect class and governed by the rational basis level of scrutiny. But, they then went on to describe how the zoning ordinance, in this particular instance, was not rationally related to a legitimate state interest. Thus, the lowest level of scrutiny was used to invalidate an ordinance, an event which is indeed very rare. The rational basis test usually rubber stamps government action. See, B. Tucker, B. Goldstein, Legal Rights of Persons with Disabilities: An Analysis of Federal Law (Horsham, PA: LRP Publications, 1994) (a loose leaf binder collection), (describing a different view, that the test in Cleburne is slightly better than the usual rational basis test). 11 Justice Marshall, the lone dissenter, strongly argued in favour of providing a strict scrutiny level of review to questions involving disability. The majority in this pre-ADA decision determined that disability related classifications only warranted a rational basis level of scrutiny. The court said that this was a difficult and often technical matter best reserved for legislators instead of “ill-informed opinions of the judiciary.” See, Cleburne at 442-43. It is noteworthy that the ADA rejection of the Cleburne standard in fact suggests that people with disabilities are exactly the kind of class that the Fourteenth Amendment was 49

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Federal Legislation Federal statutes governing access to employment for persons with disabilities include the Rehabilitation Act (§ 504) of 1973 which was followed by the Americans with Disabilities Act (ADA), passed in 1990. Employment in the federal government is governed by the Rehabilitation Act, the precursor to the ADA. Under Section 504, the obligation of "reasonable accommodations" for disabilities applies to public educational institutions and private schools that receive public financial assistance. Section 504 also requires that disabled persons be "otherwise qualified" in order to qualify for the reasonable accommodation mandated by law. The ADA extended the requirements for reasonable accommodation found in Section 504 to the private sector and much of the ADA mirrors the requirements found in the Rehabilitation Act. This is noteworthy because most of the litigation involving accommodations for disabilities is quite recent and most claims are based on the ADA. Consequently, much of the following revolves around the ADA. Nonetheless, occasional references are made to Section 504 as some cases were brought prior to the passage of the ADA, while other suits were initiated under both the ADA and Section 504. In addition, the courts sometimes look at Section 504 decisions for distinguishing facts and precedents. In 1990 the United States Congress estimated that there were 43 million Americans with disabilities and it found that many of these persons have been isolated, segregated, faced serious restrictions and limitations, occupied an inferior status in life and were seriously disadvantaged.12 To remedy this problem, the ADA comprehensively prohibited discrimination on the basis of disability. The ADA contains five Titles which prohibit discrimination: in employment (Title I); by public entities including public colleges and universities (Title II); public accommodations including private educational institutions (Title III); telecommunications (Title IV); and miscellaneous areas (Title V). Title I is relevant to the analysis of employment discrimination issues discussed herein.13 Title II and III are applicable to the analysis of access to higher designed to protect. 12 42 U.S.C. § 12101 (outlining the purpose of the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and to "provide clear, strong, consistent enforceable standards addressing discrimination against individuals with disabilities"). 13 Title I can also be an important factor within the educational process at times,

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education. Title II also prohibits discrimination on the basis of disability by government and public institutions. Title III prohibits discrimination by disability according to twelve categories of public accommodation by private facilities. Education is one of the twelve categories. Consequently, the ADA, applies equally to public and private universities and colleges.

Defining a Covered Disability A definition of a protected disability is central to determining the group of individuals covered by the law. Should only persons with severe impairments be covered? Or should the law protect persons with any degree of impairment? Lawmakers in the United States recognized the significance of this question and, as a result, US laws focus on the level of impairment necessary to be eligible for statutory protection in some detail. The first statute regarding disability, the Rehabilitation Act of 1973 (RA), Section 504,14 defined disability as follows: (A) Except as otherwise provided in subparagraph (b), the term “individual with a disability” means any individual who (i) has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment and (ii) can benefit in terms of an employment outcome for vocational rehabilitation services provided pursuant to subchapters I, II, III, VI, VII, of [the Rehabilitation Act]. (B) Subject to paragraphs (C), (D), (E) and (F) the term "individual with a disability" means, for purposes of Sections 501, 503, and 504, any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

especially where licensing examinations are the last step in the educational process prior to full time work. This is because there are different tests for analysing Title I discrimination and discrimination under the other titles. This is discussed in detail in the subsequent portions of this thesis. 14 29 U.S.C.A § 706(8) (A) and (B) (West Supp. 1991), as amended by the Rehabilitation Act. 51

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The definition provided by the Americans with Disabilities Act (ADA) is essentially the same as Section 504, but the ADA provides a more detail on what constitutes impairment. Under the ADA several snags must be cleared for an impairment to qualify for protection. First, one is required to show that he or she has a disability as the term is defined within the statute. The ADA defines disability as follows: "the term `disability' means, with respect to the individual – (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."15 As a result, the statute provides potential plaintiffs with three distinct means of showing the presence of a disability. The evaluation of the first requirement (A), can be quite complex. It creates what amounts to a three part test. The first requires showing an "impairment," the second, demonstrating that it "substantially limits" and the third, proving it limits a "major life activity." Each of these components is pivotal in the tests used by the courts to ascertain whether one in fact has a disability and whether the impairment in question is covered by the ADA.16 Items (B) the record of an impairment and (C) regarded as having an impairment, tend to be used less frequently and with little effectiveness by plaintiffs. They are not frequently relied upon as a means of showing a disability, although they are sometimes added to complaints based on (A). The courts have largely depended on the requirements given in (A) to evaluate claims of disability.

Defining Impairment An impairment is simply an element within the definition of disability. To determine whether a person with disablement has an impairment, the court will first look to the definition of an impairment. The statute does not 15 16

42 U.S.C. § 12102 (2) (a) (Supp. IV 1992). Actually, the preliminary requirement for a showing of discrimination is qualification for the sought employment or other objective. For the RA it is “otherwise qualified” and for the ADA the term used is “qualified individual.” Courts explore this qualification even before examining the degree of disability or any assessment of biomedical impairment.

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define impairment and, thus, the courts tend to look to the interpretation given by executive agencies, such as the EEOC and the Department of Justice, in their respective regulations. EEOC interpretive guidance on this question states that a "physical or mental impairment" is defined as: (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems; neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.17 The assessment of impairment often calls for expert testimony. Sometimes both sides in a dispute rely upon experts. The experts often take opposing view about whether the disability exists. If all acknowledge its existence, then debate shifts to the degree of impairment. This may lead to a classic battle of experts and very expensive litigation. The costs of this kind of challenge can deny disabled individuals the very justice supposedly protected. Nonetheless, even when an impairment has been adequately supported, the next step considers of the level of impairment. The identified impairment must place a substantial limitation on a major life activity.

Substantial Limitation of a Major Life Activity The concept of substantial limitation under the Americans with Disabilities Act (ADA) clearly plays a vital role in assessing who is qualified for any special accommodations mandated by the Act.18 The limitation presumably has the purpose of assuring that only persons with significant impairments are protected from discrimination. The term

17

29 C.F.R. § 1630.2 (h). For the purpose of analysing disability problems in this note, it is important to notice that there are no significant legal distinctions between the ADA and the Rehabilitation Act Section 504. The courts sometimes look to Section 504 decisions for precedence in ADA decisions. 18

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"substantially limited" is defined as: 1) unable to perform a major life activity that an average person in the general population can perform, or 2) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.19 This process requires an assessment of whether the impairment in question substantially limits at least one "major life activity." The major life activities are thought of as the ordinary physical and mental activities that an average person does on a daily basis in order to function. These are also activities that the general population has little difficulty undertaking. The regulatory guidance also provides some direction on the kinds of activities that are considered major life activities. These are identified as follows: (i) Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.20 The courts will examine achievement in the plaintiff's life, their demonstrated capacity to work, learn, walk, etc., and compare, for example, the manifested level of working to that of the average person in our society, within a class of jobs. If one has exhibited a level of working greater than the average person in society in the view of the court, then the person will likely be found not substantially limited and not disabled within the meaning of the ADA.21 This dismissal might take place without any regard to the findings of medical professionals or the extent of any such disability as demonstrated by learning disability testing.22 These 19

29 C.F.R. § 1630.2 (j) (l) (ii). 29 C.F.R. § 1630.2 (I). 21 A number of courts have followed this line of reasoning; see Price et al, v. the National Board of Medical Examiners, 966 F.Supp. 419 (1997) (three students with learning disabilities were denied accommodation because they had demonstrated previous academic success). 20

22

If the courts are making determinations on whether a person is "substantially

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expert diagnoses may contribute to the legal assessment, but, they are not necessarily part of the comparative test used by the courts. As a result, the courts sometimes engage in a very cursory comparative evaluation that can be quite damaging to those seeking protection under the ADA. The EEOC regulations promulgated under Title I complicate this problem further. Although suits involving learning disabilities and education are generally brought under Title II and Title III, the Title I regulations are notable for their use of a slightly different approach to assessing the "substantially limited" part of the analysis. This different approach only applies to the major life activity of working. This distinction is of some importance because it applies a somewhat different standard to the evaluation of disability discrimination involving questions of employment. The EEOC regulations explain this distinction by describing "substantially limited" for working as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities."23 These regulations go on further to say that "the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”24 Thus, one is substantially limited if one is "unable to" or "significantly restricted in" performing a range of tasks rather than a specific single task. The regulatory guidance provides additional factors for use in assessing whether one is substantially limited and significantly restricted under Title I employment claims. These are: 1) the nature and severity of the impairment; 2) the duration of the impairment; 3) the permanence or long-term impact of the impairment.25

Establishing Discrimination The ADA forbids direct discrimination, where disparate treatment takes place on the basis of an individual’s disability. It also proscribes employment actions that have a discriminatory effect on disabled persons.

limited", are they not making conclusions about medical evaluations, and making conclusions they are often poorly equipped to assess? As part of this process, the courts often try to simplify the process by creating very narrow rules. 23 29 U.S.C. § 16000 (3). 24 29 C.F.R, § 1630.2 (j)(3)(I). 25 29 C.F.R. § 1630.2 (j)(2). 55

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The following paragraphs describe the burdens of proof necessary to establish discriminatory conduct in a disparate treatment claim as well as the respective burdens associated with a disparate impact claim. Under the ADA, for a claim based on disparate treatment,26 an individual must establish impairment by a disability as defined by the legislation and show that she is a “qualified individual with a disability.” This means that an individual with a disability is qualified if she can, or without a reasonable accommodation, perform the essential functions of the particular employment position held or applied for.27 Once an individual has established coverage by the ADA, she still has the burden of proving by a fair preponderance of the evidence that the discrimination in question was, in whole or in part, because of her disability.28 When this has been demonstrated, the burden shifts to the defendant employer to rebut the presumption of discrimination. The defendant has the burden of coming forward with evidence of a legitimate non-discriminatory reason for their action. The plaintiff then bears the responsibility of showing that the employers reasons are pretextual.29 This evaluation process is designed to ascertain whether the different treatment by an employer of an employee or potential employee is based on the disability in question. The ADA also proscribes actions by an employer that have a discriminatory effect. Intent has no bearing on the conduct in an effect case. The issue is that the complained of conduct has a disparate impact on the disabled. The ADA specifically defines the term “discriminate” to 26

In the absence of direct evidence, that the employer was motivated by the plaintiff’s disability, an inference of illegal discrimination can be supported by showing that the employee or applicant had; 1) a disability; 2) was qualified; 3) applied for a vacancy and was rejected; and 4) the employer hired a person without a disability or continued to seeks applicants. 27 ADA § 101(8)(9) (a reasonable accommodation can include architectural changes, improved access to facilities, but may also include restructuring the job, part-time work, modified work schedules and reassignment to another position; this is discussed further in the subsequent sections of this note). 28 Under the precursor legislation, the Rehabilitation Act, the plaintiff had to establish that the discrimination was “soley” because of a disability. The ADA does not use the word “solely”, and thus, it introduces a mixed motives type of analysis where the disability may have been a motivating factor, but the action complained of was based on other factors as well. The holding may turn on a showing of whether the said action would have taken place in the absence of the illegal factor. 29 Norcross v. Sneed, 755 F.2d 113 (8th Cir. 1995).

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include “utilizing, standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability.”30 Specifically, with reference to disparate impact, discrimination includes: (6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test, or other selection criteria ... is shown to be job related for the position in question and is consistent with business necessity; and (7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs the sensory, manual, or speaking skills such test accurately reflects the skills, aptitude, or whatever other factors of such applicant, or employee that such test purports to measure, rather than reflecting, the impaired sensory, manual or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).31 In these cases, the employment practice is found to be discriminatory when the action causes a disparate impact32 and the defendant is unable to show that the practice is job related and consistent with business necessity. In addition, it is important to note that, under the ADA, a disabled person does not have to show that the challenged selection criterion has a disparate impact on a group or class of disabled persons; the plaintiff only needs to show that the selection criteria affected the individual in question. The Equal Employment Opportunity Commission (EEOC) has issued a technical assistance manual that provides some guidance on this issue. It states that: Under the ADA the standard may be applied to an individual who is screened out by a selection procedure because of 30

ADA § 102(b)(3). ADA § 102(b)(6,7). 32 The ADA legislatively adopts the judicially created impact analysis used within Title VI of the Civil Rights Act of 1991, § 11.01 which is referenced by the courts in their holdings as disparate or adverse impact. 31

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Perspectives on Disability disability, as well as to a class of persons. It is not necessary to make statistical comparisons between a group of people with disabilities and people who are not disabled to show that a person with a disability is screened out by a selection standard.33

Consequently, even if the employer can show that the selection criteria are related to the job and are a business necessity, the claimant may still rebut the employer’s defense by establishing the availability of alternative selection criteria. This is an appropriate rejoinder where it can be shown that alternative standards with less of a significant impact are comparably cost efficient and comparably effective in realizing the employer’s legitimate purposes. In fact, requests for alternative selection criteria are like reasonable accommodations. As discussed above, under the ADA a “qualified” person with a disability is one who has the “requisite skill, experience, and education requirement of the employment position, and who, with or without reasonable accommodation, can perform the essential functions of such position.”34 Being able to do the essential functions of the job is part of the process of being qualified. If the employee cannot do some secondary functions, they still remain “qualified” for the position. Even if some essential functions cannot be performed by the employee or applicant, the person may still be “qualified” if “reasonable accommodations” would enable the person to perform the essential functions of the job. The ADA states that an employer discriminates against an individual with a disability by: (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

33

Equal Employment Opportunity Commission, “EEOC Technical Assistance Manual on the Employment Provisions of Title I of the ADA,” January 28, 1992 § 4.3(2). 34 ADA § 101(8).

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(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.35 The ADA also asserts that reasonable accommodation may include (1) making existing facilities accessible to individuals with disabilities; and (2) job restructuring, part-time, modified schedules, reassignment to vacant positions, acquisition or modification of equipment or devices, modification or examinations and training materials, as well as the provision of interpreters or readers.36 Thus, it involves accommodations which enable equal access to the advantages and privileges of employment. The EEOC further elaborates on the subject of reasonable accommodation by noting that it includes (1) modification or adjustments to the job application process, to the work environment, to the circumstances under which the job is held or customarily performed; or (2) modification that permits a disabled employee the same benefits as the non-disabled so long as the modification does not impose an undue hardship on the employer’s business.37 In addition, it is important to note that employers are required to accommodate only those disabilities that are known to the employer. In other words, if the disabled individual does not inform the employer, and the employer has no other way of knowing about the disability, then the employer cannot (and is not required to) provide the assistance necessary to do the job. The employee bears the responsibility of making sure the employer is aware of the disability and the need for accommodations.38 An employer has several defenses to a prima facie charge of discrimination. The employer may argue that the action in question was based on a “legitimate non-discriminatory reason.”39 They may also argue that accommodation of the employee will constitute a “direct threat,” to

35

ADA § 102(b)(5)(A), 42 U.S.C.A. § 12112 (b)(5)(A) (1991). ADA § 101(9) and 45 C.F.R. § 84.12 (b) (1991). 37 29 C.F.R. § 1630.2(o)(I)(1993). 38 ADA § 102 (b)(5)(A) and 29 C.F.R. § 84.12 (1991) (employers must make reasonable accommodations to known physical and mental limitations of an otherwise qualified individual with a disability). 39 29 C.F.R. § 1630.15(a). 36

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others and thereby create an unsafe environment in the workplace.40 In addition, if the employer can demonstrate the existence of “undue hardship” if forced to accommodate the plaintiff, then the actions by an employer will be deemed non discriminatory.41 Also, if a plaintiff declines a reasonable accommodation, this refusal may also be used by the employer as a defense to discrimination.42 The ADA permits employers to use ‘qualification standards’ that require that an individual not pose a direct threat to the health and safety of persons in the workplace.43 A direct threat is defined by the ADA as “a significant risk to the health or safety of others that cannot be eliminated by a reasonable accommodation.”44 The issue of whether one is a direct threat to others is relevant to whether one is “otherwise qualified.”45 Then once an employee or potential employee is shown to be a direct threat, they will also be considered as “not qualified” to fill the essential functions of the job. Undue hardship is a widely used defence.46 An employer is required 40

ADA § 103 (b). ADA § 102(b)(5)(A). 42 29 C.F.R. § 1630.9(d). 43 ADA § 103 (b). 44 ADA § 101 (3); see also, 29 C.F.R. § 1630.2(r) (EEOC regulations provide further detail in noting that the evaluation of direct threat needs to be based on reasonable medical judgment that considers such factors as the duration of the risk, the nature of the risk, the nature and severity of the potential harm, and the imminence of the potential harm; of course, in such situations, the burden is on the defendant to establish that the presence of the person, with or without accommodations, will constitute a direct threat). 45 See, School Board of Nassau County v. Arline, 480 U.S. 273 (1987) (setting direct threat precedence for ADA litigation, this Section 504 case considered a situation where a teacher with a history of tuberculosis was “otherwise qualified” to be an elementary school teacher - the analysis was based in large part on an individualized evaluation of whether she would pose an unacceptable risk to the health of her students). 46 ADA § 102 (b)(5)(A); 29 C.F.R. § 1630.15 (d) (the ADA specifies several factors for use in the evaluation of undue hardship. These are: 1) the nature and cost of the accommodation; 2) the overall financial resources of the facility, number of employed persons at the facility, effect on expenses and resources, and the impact of the accommodation on operations; 3) the overall financial resources of the covered entity and the overall size of the covered entity; number, type and location of facilities; and 4) type of operations of the covered entity, including the composition, structure and functions of the workforce of the entity; geographic 41

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to provide reasonable accommodations unless the “covered entity” can demonstrate that the accommodation would impose an undue hardship on it.47 The term undue hardship means “significant difficulty or expense” considered in light of the overall resources of the facility, the number of persons employed, the effect on expenses or resources, and the impact of the accommodation upon the operation of the facility.48 The structure of the ADA places the burden on the employer to prove that the requested accommodations would constitute an undue hardship.49 For example, a sound amplification system for a hearing impaired persons would not likely impose an undue hardship. Similarly, a large print monitor for a person with a sight impairment should not be an undue hardship for most employers.50 In addition, an employer would likely be obligated to “explore” accommodating a qualified blind person to be a social worker, even if that person cannot read legal documents. But, if the provision of a reader would have to be on a full time basis, then that might be undue hardship. However, if the reader was only needed occasionally, the accommodation would not impose an undue hardship.51 It is also notable that even if an accommodation imposes a significant cost, the employer must consider the voluntary offer of an applicant or welfare agency to underwrite the costs of the accommodation.52 Thus, there is a close relationship between undue hardship and the provision of “reasonable accommodations.”53 The plaintiff has to show separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity ). 47 Ibid. 48 ADA § 101(10). 49 Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985) (following Rehabilitation Act) (in the consideration of undue hardship, the Rehabilitation Act identified three evaluative factors: 1) size, number of employees, number and type of facility and budget; 2) type of operation and composition of workforce; and 3) the type and cost of accommodation sought) 34 C.F.R. § 104.12 (b). 50 Ibid. 51 Nelson v. Thornburgh, 567 F. Supp 369 (E.D.Pa. 1983) (Rehabilitation Act setting out undue hardship precedence for the ADA; blind worker charged discrimination in hiring, found that if “otherwise qualified” with the assistance of readers, then discriminatory; if costs of accommodation are a minute fraction the of Department’s budget, there is no basis for undue hardship). 52 Ibid. 53 See, Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993), cert denied, 114 S. Ct. 138 61

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that the requested accommodation is effective and that it is reasonable in terms of the burden it imposes on the typical employer in the same industry. The plaintiff has the burden of production which may be met by showing the existence of a possible accommodation where “the costs ... do not clearly exceed its benefits.”54 Then the burden shifts to the defendant to show that the requested accommodation is unreasonable.55 A Second Circuit court decision visualized a merging between the unreasonableness of an accommodation and undue hardship, but also acknowledged the issue of degree of hardship, noting that the ADA does not say anything about how much hardship must be endured before it reaches the undue point.56 As part of the process of ascertaining this point, the court concluded that the employer must take a “refined analysis” of the relative costs and benefits of the accommodation considering both “the industry to which the employer belongs as well as the individual characteristics of the particular defendant-employer.”57 The court further remarked that this cost benefit evaluation process did not require “mathematical precision” or “complex economic formulae” but, rather, called for “a common-sense balancing of the costs and benefits in light [of the listed evaluation factors] is all that is expected.”58 In Vande Zande v. State of Wisconsin59 Judge (1994). 54 See, Borkowski v. Balley Central School District, 63 F.3d 131 (2d Cir. 1995) 55 Ibid. at 138. 56 Ibid. at 139. 57 Ibid. 58 Ibid. at 140; In Vande Zande v. State of Wisconsin, 44 F.3d 538 (7th Cir. 1995), Judge Posner used a somewhat similar cost-benefit analysis as was described in Borkowski. He also noted that the provision of accommodations did not mean limiting the undue hardship to a “failing company” defense. He also suggested that the financial position of the company could be a factor in the calculation of undue hardship. Undue hardship might be interpreted to as permitting firms with above average costs and financial difficulties, to demonstrate that although accommodations might be reasonable for a “normal” employer, a request for accommodation might fit into the undue hardship category on the basis of a particular employer’s financial instability. 59 44 F.3d 538 (7th Cir. 1995) (Posner argues in favour of a cost benefit analysis in the evaluation of whether a requested accommodation constitutes undue hardship); see also, Steven Epstein, “In Search of a Bright Line: Determining When an Employers’s Financial Hardship Becomes “Undue” Under the Americans with Disabilities Act,” (1995) 48 Vand. L. Rev. 391 (arguing for the use of a bright line rule, a precise mathematical model in calculating undue hardship).

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Posner argued in favour of a somewhat more rigorous approach to assessing employer benefits and costs. Hence, it is clear that costs and benefits are important factors in the assessment of undue hardship in the United States. The employer defences of undue hardship and direct threat call for individualized analysis of the particular job in question, the particular disability as well as the accommodations requested. This means that they are more suited to use as defences to disparate treatment discrimination. This is quite different from employment practices which produce a disparate impact on those with disabilities. The ADA specifically proscribes the use of employment practices which have a disparate impact on the disabled.60 An employer has a defence to a charge of disparate impact discrimination if it can be shown that the employment practice is job related and consistent with business necessity. The employer must also show that the job cannot be done with reasonable accommodation.61 The ADA also covers the special problems of discrimination when the issues involve illegal drugs, alcohol usage and medical examinations. The provisions dealing with these issues are quite detailed. Most noteworthy is the fact that any current, ongoing or casual use of illegal drugs or However, reasonable alcohol is not covered by the ADA.62 60

ADA §§ 102 (b)(3), 102 (b)(6); 29 C.F.R. §§ 1630.7, 1630.10. 29 C.F.R. § 1630.15(b)(l)(c) (Note: the ADA has no Bona Fide Occupational Qualification Defense (BFOQ) provision, but does allow the exclusion of a person with disabilities if the person, with or without accommodations, cannot perform the essential functions of the job. This is a business necessity defense that is a concept similar to the BFOQ. The ADA regulations specifically identify the disparate impact discrimination as subject to job relatedness and a business necessity defense. EEOC Interpretive Guidance provides an additional commentary noting that selection criteria that “do not concern an essential function of the job would not be consistent with business necessity.” The EEOC further states that the ADA provisions apply to all types of selection criteria, including, safety, walking, vision and hearing requirements as well as employment tests. However, production standards will not generally be subject to challenge under these provisions of the ADA) 29 C.F.R. pt. 1630, app. § 1630.10. 62 ADA § 104(a) (b) (c) (however, alcoholics and drug users who are rehabilitated or who are not currently using may be covered by the ADA; nevertheless, even in such cases, the employer is given a number of special defenses that almost entirely eliminate the need to make any reasonable accommodations. They are held to the same qualification standards as other employees, even if any unsatisfactory performance of behavior is related to the 61

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accommodation for a self-help program or for leave by one’s own initiative to seek rehabilitation might be warranted.63 Even so, if the employee appears at work with alcohol in their system, the employee can be discharged so long as the standard is applied consistently to nonalcoholic employees.64

Summary In summary, the process of determining who has a qualified disability and whether the disability constitutes an impairment which substantially limits a major life activity is a complex and highly individualized analysis, making it difficult to establish a claim. First, one has to show that they really do have an impairment. Second, they must demonstrate that their specific disability is an impairment that "substantially limits" a "major life activity” and, for employment purposes, the limitation is measured by comparison to the average employee in class of jobs, not a specific job or task, and the nature of the impairment must be long term.

Canadian Statutory Background We have seen that the laws in the United States provide a fairly detailed statutory scheme for the evaluation of disabilities and the determination of employer responsibilities. In this section we will see that Canada relies less on statutes and more on judicially developed rules and interpretation. The Canadian approach is structured upon a very broad equality clause contained in Canada’s constitution, as well as human rights laws that define disability quite broadly.

drug use or alcoholism of the employee. In addition, according to the EEOC Compliance Manual, the ADA does not require an employer to provide an opportunity for rehabilitation in place of discipline or discharge (EEOC Compliance Manual, Section 8.7 (on Efforts to Prohibit Drug and Alcohol Use in the Workplace). 63 Schmidt v. Safeway, 864 F. Supp. 991 (D.Or.1994). 64 Despears v. Milwaukee County, 63 F.3d 635 (7th Cir. 1995) (Judge Posner evaluated the disability discrimination claim of an alcoholic employee who was demoted to a non-driving position and found that it was inappropriate to lighten the sanction to an alcoholic by letting him keep his job, where similarly situated criminals would lose it; moreover, Posner also found it important to note that the employee’s alcoholism was not the “sole cause” of his demotion).

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These laws were gradually erected after the Second World War and other prohibited grounds of discrimination have been added that now include: age, sex, colour, race, religion, disability (or handicap) as well as other classifications is all contributed to a gradual process that has ultimately advanced to the passage of human rights legislation across Canada, actions prohibiting discrimination on the basis of age, sex, colour, race, religion, disability (or handicap) and other classifications as well. The division of powers in Canada is quite different from that in the United States. In Canada, the Federal government has exclusive jurisdiction over matters such as the administration of the public debt, currency, taxation, national defense, banking, commerce and navigation. The provinces deal with issues such as education, hospitals, local taxation and commerce. More important, for subject of this discussion, the constitutional division of powers in Canada generally confers authority over civil rights to the provinces. The federal jurisdiction in this area is limited to the federal government, federal crown corporations, other federal government operations and federally regulated business. However, provincial and local laws must meet the equality standards given in Canada’s Constitution. The courts have the power to both ensure and enhance equality of treatment by striking down legislation which is in violation of the equality provision of Section 15 of the Charter. Also, like United States, workers’ compensation and grievance arbitration laws are covered by these protections. The Charter’s equality provisions have also been a catalyst for improved human rights legislation, employment equity laws and for further amendments to both provincial and federal legislation generally dealing with discrimination and equality issues. Over the past decade, most provinces and territories have amended much of their human rights legislation to better address the area of discrimination against persons with physical and mental disabilities.

Charter of Rights No analysis of physical and mental disabilities can be undertaken without a discussion of Canada’s Constitution, the Canadian Charter of Rights and Freedoms. It was officially enacted in 1982 and it recognized the legal equality rights of disabled persons along with the rights of women, racial minorities and other protected classes. It has great significance for all equality seeking groups. Every federal and provincial law must comply 65

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with the Charter. If it does not, then the law may be found invalid and struck down. Under Section 15, every person is equal under the law and the Charter specifically identifies persons with physical and mental disabilities as being protected under this provision of the Charter. Section 15 (1) of the Charter provides that: Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.65 The Charter provides no definition of the phrase "mental or physical disability." However, early in the equality rights debate it was expected that the classes identified in the Charter would be broadly defined by the courts.66 In addition to Section 15(1), Section 15(2) preserves the constitutionality of affirmative protection programs and other activities focused on the alleviation of disadvantage because of race, religion, or the other characteristics enumerated in section 15(1).67 Moreover, section 1 of the Charter declares as constitutional any “reasonable limits” on the Charter rights which are “prescribed by law” and which “can be demonstrably justified in a free and democratic society.”68 Implementation of the equality guarantees under Section 15 was 65 Constitution Act 1982, Part I. 66 Lepofsky, and Bickenbach, "Equality Rights and the Physically Handicapped", in Bayefsky and Eberts (eds.), Equality Rights and the Canadian Charter of Rights and Freedoms (Agincourt, Ontario: Carswell, 1985), (noting that an "important factor in determining whether a particular condition amounts to a disability is the principle that the Charter guarantees should be given a broad and liberal construction, and not be interpreted in an unduly technical, contorted or restrictive manner", ibid. at 381). 67 Section 15(2) of the Charter provides: “Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex age or mental or physical disability. 68 Section 1 of the Charter provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

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delayed for three years, until 1985, to allow government, provinces and other public agencies the time necessary to make appropriate changes to their laws.69 Nonetheless, early ligation supported the view that the courts would adopt an expansive liberal interpretation of the classes protected by s. 15. Even before s. 15 rulings came into force, rulings from the Supreme Court indicated a commitment to human rights equality guarantees. The Court emphasized the need to liberally construe constitutional protections, as such an interpretation was central to the goal of advancing equality.70 However, some of the early decisions by the lower courts tended to follow a ‘wait and see’ attitude with respect to the Charter’s equality guarantees,71 and narrowly construed equality protections until the Supreme Court directed otherwise.72 Some early decisions argued that s.15 only required "that those who are similarly situated be treated similarly"73 when government acts. This reasoning produced a number of tests that focused on the purpose of any differentiation between groups and whether the law in question was unreasonably, irrationally or unfairly connected to its means.74 This early jurisprudence threatened to bog down equality rights with a variety of tests that resembled the “rational basis” level of scrutiny used in the United States. As described earlier, this standard is connected with extreme judicial deference to government conduct. In Canada, this kind of “rationality review” produced unpredictable results.75 Thus, the early 69

Charter Section 32(2). Regina v. Oakes, (1986) 1 SCR 103, 136. 71 David Lepofsky, “The Canadian Judicial Approach to Equality Rights: Freedom to Ride or Roller Coaster?” (1992) 55 Law & Contemp. Problems 167, 174. 72 Ibid. See examples cited by Lepofsky as demonstrating the tendency of early lower court decisions to narrowly construe equality; Re Regina and Potma, (HCJ 1982) 37 OR (2d) 189; R. v Morgentaler, (Ont SC 1984) 12 DLR (4th) 502, appeal quashed, (Ont CA 1984) 14 DLR (4th) 184; R. v. Banville, (NBQB 1983) 145 DLR (3d) 595, varying (NB Prov Ct 1982) 141 DLR (3d) 36; Re Global Communications and Canada (Attorney general), (CA 1984) 44 OR (2d) 609; Re Cromer and BC Teachers’ Federation, (BCA 1986) 5 WWR 638. 73 See, Re McDonald (Ont. CA 1985), 16 C.R.R.361 at 381; see also, R.v Century 21 Ramos Realty Inc. (CA 1987) 58 OR (2d) 737; R.v Ertel, (Ont CA 1987) 35 CC(3d) 398. 74 Wilson v. British Columbia Medical Services Commission, (BCSC 1988) 30 BCLR (2d) 1, rev’d on other grounds, (BCA 1988) 53 DLR (4th) 171. 75 Lepofsky, at 176. 70

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jurisprudence held little hope for equality seeking groups, including those with disabilities.76 The Supreme Court broke through this narrowing of the equality provisions in two prominent 1989 decisions.77 The court determined that the equality guarantees should not be defined in a way that embroiled the courts in reviewing the merits of all legislative distinctions between individuals and groups, and was not a mandate for a consummate judicial review of all statutes and their rationality. The Supreme Court also categorically rejected the “similar treatment for similarly situated” test as unsuited to achieving the equality objectives of the Charter.78 These decisions demonstrate a commitment by the court to a broad interpretation of the Charter’s equality provisions, which includes an expansive account of equality guarantees for people with disabilities. In addition, the Andrews Court found that the grounds of discrimination enumerated in the Charter did not constitute an exhaustive list and the courts could add other “unenumerated” grounds. Thus, equality rights were to be determined not only by the listed classes, but might also be based on other "grounds considered to be analogous" to the protected classes identified in the Charter.79 The court acknowledged that not all grounds of distinction are discriminatory. In Andrews, the Supreme Court said that the distinction had to be one where the impugned distinction had a discriminatory effect in the sense that it imposed burdens on individuals or groups which were not imposed on others, or that it withheld advantages available to others, based on irrelevant personal differences.80 Discrimination on the basis of analogous grounds pertains to the identification of a personal characteristic and whether that attribute 76

Judith Mosoff, “Is the Human Rights Paradigm “Able” to Include Disability: Who’s In? Who Wins” What? Why?” (2000) 26 Queen’s L. J. 225. 77 Law Society of British Columbia v. Andrews, (1989) 1 S.C.R. 143, 36 C.R.R. 193 (striking down a provincial statute categorically excluding non-citizens from the practice of law in British Columbia); Turpin v. the Queen, (1989) 1 SCR 1330. 78 Andrews, at 168. 79 Ibid, at 182. 80 While some courts have held that discrimination is contrary to s.15(1) only if it is unreasonable or unfair. See Rebic v. Collver Prov. J. (BCCA 1986) W.W.R. 401; Re Andrews v. Law Soc. of B.C. (BCCA 1986) D.L.R. (4th) 600; (supporting the view that justification may be part of the s.15 analysis). An alternative and more liberal view followed by the courts more recently is that the issue of reasonableness goes to the issue of justification under s.1 and not the question of breach of equality rights, which would be evaluated under s.15(1) of the Charter);

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relates to a discrete or insular minority which has suffered from stereotyping and political or social disadvantage.81 The approach to identifying analogous grounds of discrimination also demonstrates a broad commitment to equality. For example, people with learning disabilities are covered by the Charter, even if some might argue that they do not precisely fit within the enumerated group of disability.82 The holding in Andrews, manifests great promise for all equality seeking groups. Not only is purposeful discrimination proscribed, but so too is “adverse affects” discrimination (which corresponds to the disparate impact discrimination label used frequently within American jurisprudence). This makes Section 15 much more powerful than the equal protection clause in the US Constitution which is limited to purposive discrimination.83 Moreover, as discussed previously, the disabled are not within the groups provided higher levels of scrutiny and, therefore, afforded greater protection under the US Constitution.84 The Supreme Court of Canada, through its decision in Andrews and Turpin, rejected a US levels of scrutiny approach to equality rights, an approach which ultimately allows some to have more equality than others. Consequently, there appears to be a stronger commitment to constitutional equality rights in Canada than in the United States.85 A very recent Supreme Court of Canada decision seems, on the surface, to undermine this broad commitment to equality.86 Nonetheless, I 81

Andrews, at 183. Arnold v. Canada, (1997) 1 F.C. 582 (the ALJ wondered if the plaintiff’s learning disability was covered within the enumerated class “disability” as stated in Section 15 of the Charter. However, the judge concluded that even if it was not, people with learning disabilities were clearly a protected group as a class analogous to the enumerated groups). 83 Washington v. Davis,426 U.S. 229 (1976) (involving race discrimination). 84 City of Cleburne v. Cleburne Living Center, 473 US 432 (1985). 85 This view is further supported by holdings in Canada showing a commitment to equality in hate propaganda cases. See R. v. Keegstra, (1990) 3 SCR 697; R.v. Andrews (1990) 3 SCR 870; Canadian Human Rights Commission v. Taylor, (1990) 3 SCR 892; the same cases in the United States would be decided quite differently where equality takes a back seat to a heightened constitutional protection for free expression. See, Village of Skokie v. National Socialist Party of America, 51 Ill App. 3d 279, 366 NE2d 347 (1977). 86 Auton (Guardian ad litem of) v. British Columbia (Attorney General) (2004) – SCR -- , (decided on November 19, 2004, on appeal from the British Columbia Court of Appeals – a child with autism was denied insurance coverage for a 82

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believe the Canadian commitment to a broad based constitutional equality is firm. The case involved health insurance coverage for a disabled child. The treatment in question involved controversial therapy, what the court called a “non-core” treatment. The court reasoned that comparative “noncore” treatments for non-disabled children were treated in the same fashion and also denied insurance coverage. Consequently, the court found that there was no constitutionally based discrimination by British Columbia. While the plaintiff did lose, the case clearly demonstrates the constitutional mechanism for disability protections in Canada. It also shows that absence of any levels of scrutiny in the analysis.

Human Rights Legislation The Canadian Human Rights Act is the federal anti-discrimination legislation in Canada. Its application, however, is limited to the federal government, and federally regulated organizations such as banks, airlines, the armed forces and other government owned operations.87 The legislation was first enacted in 1977. Prior to its passage, human rights in the federal jurisdiction were partially protected by a patchwork of statutory provisions. Also, most provinces have also passed their own legislation to deal with human rights under provincial jurisdiction. These statutes extend human rights protections more widely than the protections that are offered under the Charter of Rights and its jurisprudence because they apply to private action. The Canadian Human Rights Act88 prohibits discrimination in five general areas: 1) accommodations and services available to the public;89 special unproven treatment; court determined action was non-discriminatory because the treatment was not different when compared to the appropriate comparison group, non-disabled children, because non-disabled children are also denied coverage for questionable treatments; while this is an interesting case, it is not discussed in the subsequent chapters of this book because it is out of scope, as it does not deal with employment or access to higher education). 87 See generally, Shirish Chotalia, The 1997 Annotated Canadian Human Rights Act, (Agincourt, Ontario: Carswell, 1997). 88 Canadian Human Rights Act, R.S.C. 1985. 89 Chotalia, Shirish (citing Berg v. University of British Columbia, (1993) 2 S.C.R. 353, 18 C.H.R.R. D/C10, 102 D.L.R. (4th) 665, 152 N.R. 99, additional reasons at (June 30, 1993), Doc. 22638, 22640 (S.C.C.) (concluding that the provision for public accommodations must be treated broadly enough to include services and facilities provided by universities and residential accommodations).

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2) the furnishing of commercial and residential accommodations; 3) employment, including hiring, termination, wages and advertisements for use in the hiring process; 4) membership and services offered by unions and employer organizations; and 5) the use of publications, notices, and advertisements cannot indicate any discriminatory intent.90 Any alleged discrimination must be shown to be based upon a prohibited ground identified within the act. Section 3 (1) identifies: race, national or ethnic origin, colour, religion, age sex, marital status, family status, disability and conviction for which a pardon has been granted.91 As in the Charter, the protected classes are precisely identified. The Supreme Court of Canada has found, on a number of occasions, human rights codes do indeed have a quasi-constitutional status and have adopted the same liberal approach used to interpret the Charter.92 Canadian provinces have followed the guidance conveyed by the Charter of Rights and the Canadian Human Rights Act and have enacted or amended their own human rights legislation. With respect to disability issues, this legislation differs somewhat from province to province, however, there is conformity with the Charter and the Canadian Human Rights Act with respect to the liberal application of such protections.93

Employment Equity Legislation Historically, the first federal employment equity law passed in the 1980's. The Federal Employment Equity Act was amended in 1995 to provide a new enforcement provision and to strengthen its equality provisions. Like the Federal Human Rights Act, this law only applied to Federal Government employees and other employees within the jurisdiction of the Federal Government. It also gave the Canadian Human Rights 90

Ibid at x1ix. Ibid at 1i (citing Haig v. Canada, (1992) 9 O.R. (3d) 495 for the addition of an additional protected group based on sexual orientation - based on analogous grounds arguments). 92 See, Berg v. University of British Columbia, (1993) 2 S.C.R. 353. 93 The consistency among the protections covered by the human rights laws in the various jurisdictions in Canada is discussed further in Chapters IV and V; of course, the focus on the protective coverage offered to those with disabilities. The human rights laws go into varying degrees of detail with respect to defining disability and discriminatory conduct, however, they do appear to conform with the expansive interpretations given to the Charter. 91

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Commission new enforcement powers in respect of anti-discrimination legislation.94 However, the Employment Equity Act is unlike the Constitution and the Human Rights Act in that it does more than delineate rights. It also imposes proactive obligations on federally regulated employers to find solutions to the problems of discrimination and implement policies designed to remedy discrimination. The Employment Equity Act obligates employers to identify and eliminate discriminatory employment practices and promote a proper representation of four equality seeking groups, including those people with disabilities, within the federally regulated workforce.95 In addition, the Act specifically defines four separate groups of disabled persons. These are: 1) individuals with disabilities; 2) individuals who consider themselves to be disadvantaged; 3) individuals who believe that their employer considers them to be disadvantaged because they have an impairment; and 4) individuals who identify themselves or agree to be identified by employers as disabled.96 Without doubt, this is a very liberal view of the class of disabled persons. Also noteworthy is the absence of any process for evaluating bio-medical conditions. Only one province has attempted legislation in this area. The Province of Ontario passed an Employment Equity Act during the New Democratic Party (NDP) administration (during their term in office from 1990-95). It called for proactive remediation of discrimination. It also imposed similar obligations on both public and private sector employers in Ontario. However, the succeeding Conservative government in Ontario has largely repealed the Employment Equity Act. Now any possible remedial action is in the hands of a new Liberal government elected in 2004.

94

See, Lisa Waddington, “Reassessing the Employment of People with Disabilities in Europe: From Quotas to Anti-Discrimination Laws” (1996) 18 Comp. Lab. L.J. 62,78. 95 Ibid. (the four protected groups are: women, colour, aboriginals, and disability). 96 Ibid. at 79.

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Statutory Definitions of Disability The Canadian Human Rights Act and all its provincial counterparts specifically proscribe discrimination against those with disabilities. In some jurisdictions, the human rights act identifies specific physical and mental disabilities or handicaps within the groups protected from discrimination. Sometimes physical impediments are identified, such as diabetes, amputation, lack of physical co-ordination, disfigurement, epilepsy, blindness, deafness, muteness, visual impairments, the need for a guide dog, wheelchair or other remedial instruments and alcohol or drug dependency.97 In six provinces, Ontario, Alberta, New Brunswick, Newfoundland, P.E.I., and Saskatchewan, the physical disability must be caused by a bodily injury, birth defect or illness. The language employed to define mental disability also varies from jurisdiction to jurisdiction. The variations range from very general definitions to more precise listings of disorders.98 Saskatchewan has one of the most general definitions of a mental disability, a “disorder of thought which impairs judgment.”99 Despite these differences, there are also some important similarities. For example, the definitions of disability used in each instance, signal a desire to be broadly inclusive. Where differences do exist, they are not designed to exclude those with 97

Ontario Human Rights Code, RSO 1990, c.H19, s.10(1); Alberta, Citizenship and Multiculturalism Act, R.S.A. 1980, c. H-11.7, s.38(1)(i) (am. 1985, c.33,s.2); Newfoundland Human Rights Code, RSN 1990, c.H-14, s.2(1); Nova Scotia Human Rights Act, RSNS 1989, c.214,s.3(1)(rep and sub 1991, c. 12,s.1); Manitoba, Human Rights Code, S.M 1987-88, c.45 (CCSM c. H175),s. 9(2)(1); New Brunswick, Human Rights Code, RSNB 1973, c.H-11, s.2;rep & sub 1985,c.30,s.4(c); Prince Edward Island Human Rights Act, PSPEI 1988, c.H-12, s. 1(1)(1); Saskatchewan Human Rights Code, S.S. 1979, S.2(1)(i.1)(en. 1989-90, c.23, s. 3(2)). 98 See G. Robertson, “Mental Disability And The Law In Canada” (Agincourt, Ontario: Carswell, 1987) (noting that neither Alberta or Saskatchewan identify mental or physical disability as a prohibited ground in their human rights legislation - Robertson cites Quaere as suggesting that such an omission is a violation of the Charter of Rights s.15(1) based on analogous cases arguments). Ibid at 261. (interestingly, since Robertson wrote these words, both Saskatchewan and Alberta have made changes to their human rights legislation and both provinces have added general definitions of mental disability). 99 Saskatchewan Human Rights Code, S.S. 1979, S.2(1)(i.1)(en. 1989-90, c.23, s. 3(3)). 73

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disabilities from protective coverage. The Canadian Human Rights Act defines disability in Section 25 as: Any previous or existing mental or physical disability which includes disfigurement and previous or existing dependency on alcohol or a drug.100 The provincial human rights codes appropriately follow this expansive direction. For example, the Ontario Human Rights Code, prohibits discrimination because of handicap in services, accommodation, contracts and employment. Nonetheless, a more detailed definition of “because of handicap” is provided. It includes a person who has or had, or is believed to have or have had: a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device, b) a condition mental retardation or impairment, c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, d) a mental disorder, or e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act,101 1997.102 In Ontario, the Act does not specify Bona Fide Occupational Requirement (BFOR) as a defence for discrimination on the basis of disability. However, it does allow a similar kind of defence if the 100

Canadian Human Rights Act, RSC 1985, c. H-6, s.25. The Workplace Safety and Insurance Act is the Workers Compensation Act in Ontario. 102 Human Rights Code, RSO 1990, c.H 19, s.10(1) (as amended). 101

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employer has a legitimate non-discriminatory reason for its conduct, such as the person is “incapable of performing or fulfilling the essential duties or requirements ... because of [their] handicap.”103 The Code also states that a court shall not find a person incapable of doing the essential functions of the job unless the needs of the employee (or prospective employee) cannot be accommodated without undue hardship, “considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”104 The Quebec Charter of Human Rights and Freedoms, offers similar protections. It proscribes discrimination because of “a handicap or the use of any means to palliate a handicap.”105 The Charter does not specifically define the word “handicap.” However, the Charter does mention that the handicapped includes “a person limited in the performance of normal activities ... [and] is suffering, significantly and permanently, from a physical or mental deficiency, or who regularly uses a prosthesis or an orthopedic device or any other means of palliating his handicap.”106 A recent SCC decision on appeal from Quebec Court of Appeal107

103

Ibid, Section 17(1). Ibid, Section 17(2) (it is interesting to note that the exclusion of BFOR from the Code with respect to employer defenses suggests that the intent of the law is to impose more responsibility on the employer to engage in accommodation effort if at all possible. However, just because the BFOR defense is not articulated in the statute, this itself does not mean that the employer cannot raise it as a defense. Of course the plaintiff can always raise the point that the law provides specific defenses, and BFOR is not one of them. In addition, it is noteworthy that for other reasons for discrimination, such as age, sex, record of offenses and marital status, the law specifically gives employers the BFOR defense). 105 Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, s. 10. 106 Ibid, R.S.Q. c. E-20.1,s.1(g). 107 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); and, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City),(May 3, 2000) 1 S.C.R. 665 (hereafter Boisbriand) www. lexum.umontreal.ca/ csc-scc/en/rec/ thml/ boisbria.en.html (Montreal refused to hire plaintiff 1 (p1) as a gardener horticulturalist and the CUM refused to hire plaintiff 2 (p2) as a police officer. P1 and p2 were denied employment on the basis of a pre-employment medical exam which reveal an anomaly of the spinal column. P3 had Crohn’s disease and as a result the City of Boisbriand dismissed him as a police officer. However, p1, p2 and p3 had no functional limitations and both could perform the duties of their respective positions. The Supreme Court found denial of employment on such grounds was 104

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dealt with the issue of what constitutes a disability under the Quebec Charter of Rights. The Supreme Court acknowledged that the Charter did not provide a definition of the term “handicap.”108 In view of this deficiency and the quasi-constitutional nature of the law, the Court said that the Charter had to be interpreted in light of its context and objectives. The Court noted that the rules of interpretation did not support the argument that the term “handicap” meant “a physical or mental anomaly that necessarily results in functional limitations.”109 The court found that a “liberal and purposive interpretation and a contextual approach support a broad definition of the word ‘handicap’, which does not necessitate the presence of functional limitations and which recognizes the subjective component of any discrimination based on this ground.” The court further articulated that “handicap must not be confined within a narrow definition that leaves no room for flexibility.”110 Nonetheless, the Court noted that to prove the existence of a handicap, one must show a medical deficiency manifesting a physical or mental impairment. However, the handicap should be viewed not only from a medical perspective, but also a social viewpoint. The emphasis is on the integration of the person into society.111 The focus needs to be on the obstacles created by society and the environment which obstruct a person’s social and professional integration into society. The Court stated that the accent must be on the “effects of the distinction, exclusion or preference rather than the precise cause or origin of the handicap.112 But, the Court also recognized that the employer is not without defenses. The appropriate defense to a charge of discrimination is justification based on aptitudes or qualifications required for the job.113 Ontario and Quebec provide the most detailed definitions of disability. The other provinces provide varying levels of precision in their definitions. However, each province proscribes discrimination on the

discriminatory. Further, the Court found that the burden of proving the distinction and the “impugned measure is justified” is on the employer based on aptitudes or qualifications required for the job). 108 Ibid. 109 Ibid. 110 Ibid. 111 See, Bogonesse v. Ecole Secondaire du Mont-Bruno, (1996), 30 CHRR D/61 (Que. Trib). 112 Boisbriand, at 3 of 30. 113 Ibid.

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basis of disability and, in each case, an expansive definition of disability is understood. The human rights codes offer persons with disabilities considerable protection from discrimination in both employment and access to education. This means that every person should have an equal opportunity. The only exception to these rights in employment is where there is a “bona fide occupational requirement” (BFOR) or a “bona fide occupational qualification” (BFOQ).114

Assessing the Degree of Impairment The broad language used within the Charter and human rights codes underlines the intent to define broadly the meaning of disability. Even where disabilities are specifically enumerated within the legislation, such as is the case in Ontario, Quebec and Saskatchewan, the language used notes that the list is inclusive, not exclusive. Judges and tribunals have acted in concert with this intent and have interpreted the term disability expansively. In a recent Supreme Court of Canada decision,115 the court clearly articulated the need for such an expansive interpretation. The court said:

114

See, Binder v. CNR (1985) 2 S.C.R. 561 (suggesting that requirement may be less encompassing than qualification; however, my impression after reading a number of cases in Canadian and US jurisdictions is that there is no substantial difference among jurisdictions with respect to whether the defense is a BFOQ or a BFOR or some other form of analysis; also broadly stated, these requirements or qualifications mean that if someone has a disabling condition that prevents him or her from undertaking the tasks required to perform a job, the employer can refuse to hire or promote the person without being in violation of the human rights codes. In addition, safety is always an important aspect of this evaluation process. It is important to note that all jurisdictions, even those within the United States, require that the evaluation of BFOR(Q) and safety issues be undertaken after the use of efforts to provide reasonable accommodations have been attempted.). 115 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); and, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City),(May 3, 2000) 1 S.C.R. 665 (hereafter Boisbriand); http://www.lexum.umontreal. ca/csc-scc/ en/rec/ html/ boisbria.en.html (Supreme Court of Canada overtuning in part and affirming in part the Court of Appeal in Quebec and remanding to the Tribunal des droits de la personne for decision consistent with the Supreme Court findings). 77

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Perspectives on Disability [in its interpretation of the Quebec Charter of Rights] the Charter must be interpreted in light of both its context and its objectives. The rules of interpretation do not support the argument that the word "handicap" means a physical or mental anomaly that necessarily results in functional limitation. A liberal and purposive interpretation and a contextual approach support a broad definition of the word "handicap," which does not necessitate the presence of functional limitations and which recognizes the subjective component of any discrimination based on this ground. The ground "handicap" must not be confined within a narrow definition that leaves no room for flexibility. Instead, courts should adopt a multidimensional approach that considers the socio-political dimension of "handicap." The emphasis is on human dignity, respect and the right to equality rather than merely a biomedical condition. A handicap may be real or perceived, and a person may have no limitations in everyday activities other than those created by prejudice and stereotypes. Courts will, therefore, have to consider not only an individual's biomedical condition, but also the circumstances in which a distinction is made. A "handicap" may exist even without proof of physical limitations or other ailments. The emphasis is on the effects of the distinction, exclusion or preference rather than the precise cause or origin of the handicap.116

Nonetheless, the courts also recognize that the law should not be interpreted so broadly so as to include trivial disabilities that have a limited effect on a person’s life. The protection of those with trivial disabilities would undermine the purpose of the law. Therefore, courts and tribunals have found it necessary to limit the scope of disability coverage from time to time. In Ouimette v. Lily Cups Ltd.117 the plaintiff was discriminated against on account of a disability when her employment was terminated after she missed one day of work due to asthma and two other days because of the flu. These absences occurred during the initial probationary period of employment when the employer required full 116

Ibid. Ouimette v. Lily Cups Ltd. (1990) 12 CHRR D/19, 90 CLLC p17,019 (Ont Bd Inq). 117

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attendance. The Board stated that the claimed impairment was not a disability within the meaning of the Ontario Human Rights Code. In addition, the Board noted that a disability required an “ongoing and significant impairment”118 and not a minor or transitory condition.119 This does not mean that temporary disabilities are never covered under human rights legislation. Allergies have been found to be a disability, in spite of the fact that they were seasonal in nature.120 A thyroid condition with that sporadically affected the person’s capacity to work was found to be a disability.121 Alcoholism also has been found to be a disability. In that case, the Board stated that the condition did not need to be an ongoing ailment.122 In Willems-Wilson v. Albright Drycleaners Ltd., a British Columbia tribunal found that reactive depression disorder, a transient mental disability which caused occasional impairment, should be considered a disability under human rights law. The tribunal reasoned that since crohn’s disease, diabetes and epilepsy have been found by the courts to be disabilities under human rights legislation, there is no basis for excluding reactive depression from the same class of conditions.123 In fact, under the human rights legislation, employees without any disability who are harmed by actions taken by an employer on the basis of a perceived disability, are also covered by the protections of the law.124 Similarly, if an employer acts on a mistaken belief that a job applicant’s disability precludes him or her from doing the job, the employer has 118

Ibid, at D/33, pg 59 (stating that it is not the handicap that provide protection for the individual, but rather that the denial of equal opportunity is the issue; it is where the employer imposes a barrier to the handicap which is not connected to actual capability to do the work, with or without an accommodation). 119 See also, Nielson v. Sandman Four Ltd. (1986) 7 CHRRC/3329 (BCCHR) (temporary injury from fall not a disability within meaning of the Human Rights Code). 120 Morgoch v. Ottawa (City), (1989) 11 CHRR D/80, 89 CLLC p 17,026 (Ont Bd Inq). 121 Morrison v. O’Leary Associates, (1990) 15 CHRR D/237 (NS Bd Inq). 122 Entrop v. Imperial Oil Ltd. (1995) 23 CHRR D/196, 95 CLLC p230-022 (Ont Bd Inq). 123 Willems-Wilson v. Allbright Drycleaners Ltd., (1997) 32 CHRR D/71, 98 CllC p230-007 (BCHRC) (hereafter Willems-Wilson). 124 Davidson v. St. Paul Lutheran Home of Melville, Saskatchewan, (1991) 15 CHRR D/81, 91 CLLC p17,023 (Sask Bd Inq) (unlawfully discrimination on the basis of a perceived disability of obesity). 79

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unlawfully discriminated.125 Even a good faith belief cannot save the defendant from a prima facie case of discrimination because of handicap.126 Furthermore, an employer cannot claim that it was unaware of a disability at the time an employee was terminated if it reasonably should have been aware of its presence.127 In summary, the breadth of disabling conditions covered by the various human rights laws in Canada is quite wide, both in terms of the degree of disability, the nature of conditions covered and the kinds of disabilities entitled to legal protection.

Reasonable Accommodation Once one is able to show the presence of a protected disability, one has a right to reasonable accommodations. In Canada, a right to a reasonable accommodation has been held to derive implicitly from the general protection against discrimination.128 In Saskatchewan Human Rights Commission and Huck v. Canadian Odeon Theaters Ltd.,129 a handicapped person confined to a wheelchair was held to have the right to enjoy proper seating arrangements in a theatre. The court emphasized that a “physically reliant person does not ... acquire equal opportunity to utilized facilities or services which are of no use to him or her. Identical treatment does not necessarily mean equal treatment or lack of discrimination.” 130 The case clearly established that individuals cannot have true equal opportunity without reasonable accommodation. Nonetheless, recent history courts and tribunals have not always been kind to those seeking reasonable accommodations. In employment situations, Canadian courts have sometimes held that if a BFOQ / BFOR 125

Cameron v. Nel-Gor Castle Nursing Home, (1984) 5 CHRR D/2170, 84 CLLC p17,008 (Ont Bd Inq). 126 Ibid. 127 Willems-Wilson, (employer discriminated by termination action when employee was absent due to depressive condition; employer should have been aware of the condition and had a duty to inquire whether the absence was due to this condition). 128 Beatrice Vizkelety, “Proving Discrimination in Canada” (Agincourt, Ontario: Carswell, 1987) note 78, at 97. 129 (Sask. CA 1985) 6 CHRR D/2682; leave to appeal to SCC refused(1985) 18 D.L.R. (4th) 93. 130 Ibid.

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defense is established by an employer, it had the effect of eliminating the duty to accommodate.131 In addition, there was confusion for some time whether the burden of proof was on the plaintiff or the defendant to show the feasibility or lack thereof for a reasonable accommodation. These issues were finally resolved in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd.132 In O’Malley, the Supreme Court of Canada imposed the burden on the defendant / respondent. This decision, together with the recent Supreme Court decision in Meiorin,133 has more clearly articulated employer responsibility for reasonable accommodations as well as the operation of the business rationality standard, job relatedness, and employer defenses such as BFOR/Q. In Meiorin, the Supreme Court plainly reaffirmed an obligation to accommodate to the point of undue hardship. The Court also emphasized the need for courts and tribunals “to be sensitive to the ways in which individual capabilities may be accommodated.”134 Additionally, the Court noted that “[e]mployers, courts and tribunals should be innovative yet practical when considering how [accommodations] may be done in particular circumstances.”135 The Supreme Court endorsed substantial involvement by tribunals and the courts in the process of assessing whether sufficient efforts to accommodate have been offered. In so doing, it also imposed a considerable obligation on employers to make efforts to accommodate differences.136 131

See, Canadian National Railway v. Canadian Human Rights Commission and Bhinder, discussed in Vizkelety, at 99 (where the SCC held that a BFOQ when established eliminated the duty to accommodate). 132 (1985) 2 S.C.R. 536, 23 DLR (4th) 321, 7 CHRR D/3102. 133 British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.), (1999) S.C.J No. 46 (hereafter Meiorin) (Tawney Meiorin was the plaintiff in the case and the decision is commonly referenced by her name; although this case deals with sex discrimination issues and it does not involve a disability, it is critical to the evaluation of disability questions as both are covered by the same human rights protections). 134 Ibid at ¶ 64. 135 Ibid. 136 The Court stated “if individual differences may be accommodated without imposing undue hardship on the employer, then the standard is not a BFOR. Ibid at ¶ 67; see also, ibid at ¶ 65 (posing a listing questions that courts and tribunals may consider in the analysis of whether sufficient efforts to accommodate have been made). 81

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Establishing Discrimination As in the United States, the law in Canada traditionally recognized the existence of two broad types of discrimination: 1) direct discrimination, where the standard is discriminatory on its face; and 2) adverse effect discrimination, where a facially neutral standard discriminates in effect. The basic test for direct discrimination has been set out by the Canadian Human Rights Tribunal in Israeli v. Canadian Human Rights Commission137 and it described the basis of a prima facie case of direct discrimination in employment within Canada. The Tribunal made note of the McDonnell Douglas138 test, which is widely used in the United States, and embraced a similar approach. In this case, the court articulated the test for determining the prima facie discrimination: 1) the complainant belongs to one of the groups protected by the Human Rights Act; 2) the complainant applied and was qualified for a job the employer wished to fill; 3) although qualified, the complainant was rejected; and 4) thereafter, the employer continued to seek applicants with the complainant’s qualifications.139 The court noted that the circumstances relating to each of these requirements may vary from case to case, but, the complainant / plaintiff should never be required to show that the denial of the job opportunity was based on discrimination.140 Like the United States, the effect of this model is to shift the burden proof to the defendant, forcing the employer to rebut the prima facie charge of discrimination. If the defendant provides a credible rebuttal, the plaintiff can still show that the reasons are pretextual.141 Most of the discrimination taking place in Canada today does not fall into the class of direct discrimination. Rather, it falls into the adverse effect variety of discrimination, which is the same as the disparate impact discrimination language used by the courts in the United States. In Canada, adverse effect analysis is based on judicially developed rules and interpretation, rather than on any prescribed legislative origins.142 137

(1983) 4 CHRR D/1616 (Cdn HRT); affirmed (1984) 5 CHRR D/2147 (Cdn. HRRT). 138 McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792. 139 See, Beatrice Vizkelety, pp. 124. 140 Ibid. 141 Ibid. 142 In the United States, disparate impact analysis has a legislative basis in the civil rights laws, such as Title VII, as well as in the ADA.

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Legislatures have offered little guidance to the process of evaluating accommodations and proving discrimination and the courts have been left to sort through these issues on their own.143 To make a case of employment discrimination based on disability, the complainant must establish direct discrimination or that a rule or practice has a discriminatory effect on the individual. The respondent then defends by establishing that the complainant could not fulfil the essential duties or qualifications and that accommodations will impose undue hardship. Employers can also argue that the qualification or the rule is a bona fide occupational requirement (BFOR). In Canada, the employer traditionally had three types of defenses for charges of direct discrimination. First, the complained of action was based on a legitimate non-discriminatory reason. Second, proof that the case falls within a legislative exception or exemption (if any), and third, proof that the exclusion was justified under the BFOR exception. Under 143

An early case, provided the basis for proving discrimination where there was no intent. In Re Attorney General for Alberta and Gares, (1976) 67 DLR (3d) 634, the court noted that “even in the absence of present or past intent to discriminate on the ground of sex ... it is the discriminatory result that is prohibited and not the discriminatory intent. This approach to adverse effect discrimination was endorsed by the Supreme Court of Canada in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears, (1985) 2 S.C.R. 536, 23 DLR (4th) 321, 7 CHRR D/3102 (McIntyre J. stating that “it is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory). Ibid. at 23 DLR (4th) 321 at 329. The court also acknowledged the existence of some limitations. In cases of adverse effect discrimination, where a defendant argues that a qualification is “rationally connected” to the job tasks (or other proffered services), the defendant still must offer reasonable accommodations. This standard has been labeled by Canadian courts as the “business rationality” test. In an adverse effect discrimination case, the result of the test will not support striking down a qualification, unless the rule bears no rational relationship to the employment. However, employers still must seek to alleviate its effect on the complainant short of imposing an undue hardship on themselves. In other words, even if the qualification rule has a rational connection to the job, in disability cases, the employer still has an obligation to provide reasonable accommodations to the point of undue hardship. The job applicant is unqualified for the position only if he or she cannot perform the essential functions of the job after the provision of accommodations to the point of undue hardship. 83

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this analysis, discrimination cases did not require a duty to accommodate once the BFOR was established.144 Consequently, under the conventional approach, there also was no need for any defense of undue hardship. With adverse impact discrimination, the method was different. To avoid liability, an employer traditionally had to establish that the job requirement at issue had a “rational connection to the job,” and that he could not accommodate the claimant “without incurring an undue hardship.”145 If the employer was unable to substantiate a “rational connection” and efforts to accommodate without undue hardship, then the charge of discrimination succeeded. However, the discriminatory general standard remained valid and remains in effect because the standard adversely affected only one individual.146 The two different approaches required that a distinction be made between a standard that is discriminatory on its face and a neutral standard that is discriminatory in effect. Unfortunately, the distinction is not always clear. Consequently, different results and remedies could be produced by the particular classification of the discrimination.147 According to the Supreme Court, this caused confusion.148 In Meiorin, the Court found the distinction tended to legitimize systemic discrimination, sometimes tended to compromise the broad purposes of the Human Rights Code and was different in substance from the broad approach taken in 144

Ontario Human Rights Commission v. Simpsons-Sears Ltd., (1985), 13 CHRR D/397 (Ont Bd Inq), at p. D/401, para 30 (McIntyre saying there no need to continue with an assessment once BFOR is established and no need to see if an accommodation could be effected). 145 Alberta Dairy Pool v. Alberta Human Rights Commission, (1990) 2 S.C.R. 489, 12 CHRR D/417; an undue hardship has been defined as an “undue interference in the operation of the employer’s business or undue expense to the employer,” see Simpson-Sears, Ltd., (1985) 23 D.L.R.(4th) 321, 335. 146 Thus, the traditional “bifurcated analysis gives employers with discriminatory intention and the forethought to draft the rule in neutral language an undeserved clock of legitimacy.” Meiorin at ¶ 29. 147 For more on the confusion in the courts arising with the bifurcated analysis, see, David Lepofsky, “The Duty to Accommodate: A Purposive Approach” (1993), 1 Can. Lab. L.J. 1; M.C. Crane, “Human Rights, Bona Fide Occupational Requirements and the Duty to Accommodate: Semantics or Substance?” (1996), 4 C.L.E.L.J. 209, 226-29; K Watkin, “The Justification of Discrimination Under Canadian Human Rights Legislation and the Charter: Why So Many Tests?” (1993), 2 N.J.C.L. 63, 88. 148 Meiorin at ¶ 54.

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Section 15(1) of the Charter of Rights.149 As a result, the decision in Meiorin abolished the distinction and replaced it with a “unified approach,” thus avoiding legalistic distinctions that might be exploited to deny plaintiffs accommodations. Meiorin articulated a three part test to be used in assessing whether an employer has established, on a balance of probabilities, that a prima facie case of discrimination meets the specifications of a BFOR. First, the employer must show that it adopted the standard for “a purpose rationally connected to the performance of the job.” Second, the employer must establish that the standard was established in a “good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose.” Third, the “standard must be reasonably necessary to the accomplishment of that legitimate work-related purpose.” This language closely follows the language in the traditional BFOR foundational case Etobicoke.150 One difference is in the assessment of what is “reasonably necessary.” The Supreme Court said that “it must be demonstrated that it is impossible to accommodate individual employees sharing the same characteristics of the claimant without imposing undue hardship upon the employer.”151 This emphasized that it was not enough for a standard to be rationally connected to the job and adopted in good faith, the employer must also establish that it would suffer undue hardship if it was required to provide There must be an effort by the employer to accommodation. 152 accommodate to the point of undue hardship.153 The decision in Meiorin eliminated the confusion previously generated about what defenses were appropriate in discrimination cases by 149

Ibid. Etobicoke (Borough) v Ontario (Human Rights Commission), (1982) 132 D.L.R. (3d) 14, (1982) 1 S.C.R. 202 (the case traditionally used as providing the BFOR analytical framework). 151 Meiorin (the assessment of what is reasonably necessary must take into account the possibility that accommodations can successfully mitigate the need for the standards). 152 It is interesting to note that the language used in the first two elements of this test appear to use language that suggests a relatively easily standard, only a “rational connection” and a “good faith” belief. But, the third element is a powerful requirement - entailing a showing that it is “impossible” to accommodate and the effort to accommodate must be made to the point of undue hardship. 153 In Meiorin, the Court said that the government standard, while neutral on its face, the government had not established that it would experience undue hardship if a different standard was used. Ibid at ¶ 73. 150

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eliminating the distinction between direct and adverse impact discrimination and substituting a “unified approach.” Thus, after Meiorin, both direct and adverse effect analysis must be evaluated according to the same judicial principles.

Summary This chapter has described the basic statutory framework upon disability discrimination law rests within Canada and the United States. In Canada, the Charter and human rights laws broadly define disability. As a result, the courts and tribunals have generally conducted their assessments of disability and questions of accommodation and discrimination in a way that is consistent with the liberal intent of the Charter and the various human rights laws. Canadian statutes do not appear to encourage a meticulous examination of the scope of disability protection. Moreover, Canadian statutes and discrimination jurisprudence tend to focus on the more important issue of whether reasonable accommodations will give the disabled person the capability of undertaking the essential functions in a satisfactory manner. The next two chapters provide an in depth comparison of the above described statutes, the resulting jurisprudence as well as a commentary on disability and accommodation issues.

CHAPTER IV

Comparative Evaluation Of American And Canadian Employment Disability Laws Introduction The courts in the United States have undermined the protective coverage of the Americans with Disabilities Act by embracing extremely narrow interpretations of the law. These inordinately restricted readings have been fostered by a seriously flawed definition of disability. The essence of this flaw is contained within the statutory definition itself. By comparison, Canadian statutes have a more expansive outlook on disability and, accordingly, the courts have applied a broad definition of disability when evaluating issues involving disablement and employment. This chapter compares the laws dealing with disability discrimination in the two countries with a particular focus on the definition of disability, who is covered by the law and who is not, as well as the extent of employer obligations to accommodate persons with disabilities. This comparison is undertaken by first looking at the level of protection afforded to the disabled by the constitution in each country. The constitutional treatment of disability is important because it sends a message to the judiciary and the public about the relative importance of these issues. The discussion then compares the statutes dealing with questions of disability in each country. The American and Canadian approaches are quite different with respect to the definition of disability. The American definition uses a number of tests which have the effect of excluding a wide range of disabilities from the protective coverage of the law. Moreover, recent United States Supreme Court decisions have also had the effect of imposing additional restrictions on the coverage for individuals with disabilities. The Supreme Court of Canada has dealt with similar issues in a way that consistently supports a broader perspective on what constitutes a disability and, thus, Canadian holdings tend to furnish statutory protection to a broader range of individuals. 87

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The United States also narrowly interprets an employer's duty to provide reasonable accommodations. Canadian laws tend to support a broader interpretation of employer obligations to accommodate individuals with disabilities. The Canadian and American approaches are compared and constructively criticized. In addition, as part of this analysis of an employer's duty to provide reasonable accommodations, employer defenses are necessarily included as part of this discussion. These issues and others are introduced, as well as a range of possible changes to the laws in the two countries.

Constitutional Protections The constitution of a nation sets out a framework of relations and divisions of power, and it defines roles and responsibilities for various private actors and government.1 The priorities enumerated by the language used within the text of a constitution and by judicial interpretation of the law send messages to the lower courts and society at large about the relative importance of specific groups in a society, including people with disabilities. The most significant difference between the American and Canadian constitutions with respect to the treatment given to individuals with disabilities is that the Canadian constitution specifically incorporates protection for the disabled within the text of the Charter of Rights. Section 15 of the Charter gives people with disabilities "equal benefit of the law without discrimination." The Charter has far reaching effect and provides a national mandate for equality under the law. The provinces, territories and federal government must ensure that their legislation and actions are in compliance with the equality mandates of Section 15. Laws not in compliance can be struck down. In the United States, people with disabilities have no real protection under the American Constitution. The disabled are subject to the "rational basis" level of scrutiny, a constitutional law test which provides the minimal level of scrutiny on questions of equality under the 14th amendment equal protection clause. This rational basis level of scrutiny is associated with extreme judicial deference to government actions. By contrast, discrimination on the basis of race is given "heightened scrutiny," 1

See generally, Geoffrey Stone, Louis Seidman, Cass Sunstein, Mark Tushnet, Constitional Law, (Boston, New York, Toronto, London: Little Brown & Company, 3rd ed., 1996) (introductory remarks about the purpose of constitutional law).

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the highest level of analysis. Issues involving gender, specifically discrimination against women, are given "intermediate scrutiny," a lower level of analysis than race, but higher than disability. Under US constitutional analysis, race is the most serious kind of discrimination, gender is somewhat serious and disability is a much lesser concern. Consequently, under the equal protection clause analysis of equality, the courts in the United States engage in a kind of ranking of how much protection different groups should receive. The holding in the City of Cleburne v. Cleburne Living Center2 provides a good example of how this analysis deals with questions of disability. A group of individuals with mental disabilities sought protection from discrimination on the basis of the equal protection and due process clauses of the 14th Amendment to the Constitution. In the case, the Supreme Court set out the qualification criteria for heightened scrutiny. These criteria included having immutable characteristics, a history of unfair and discriminatory treatment, and political powerlessness. Then the court evaluated the claim and concluded that the disabled did not have immutable characteristics, did not have a history of unfair and discriminatory treatment and did not face circumstances of political powerlessness.3 According to the Supreme Court, people with disabilities have organized public support and have been able to procure the attention Apparently this "power" has allowed those with of lawmakers.4 2

City of Cleburne v. Cleburne Living Center, 473 U.S. 431 (1985) (Court of Appeals decision reversed, holding that mental retardation is a “quasi-suspect” classification and that under “heightened scrutiny” equal protection analysis, a land use ordinance was facially invalid because it did not substantially further an important government purpose” and consequently, the applicable equal protection standard for disability issues requires only that the legislation in question be “rationally related to a legitimate government purpose”); see also, Heller v. Doe, 113 S. Ct. 1409 (1993). 3 Cleburne at 445-46. It is quite interesting to note that the language used in the preamble to the ADA responded to the Supreme Court’s assessment in Cleburne and specifically identified the disabled as a “discrete and insular minority ... faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society.” 42 U.S.C. s. 12101 (a)(7). 4 Ibid at 445 (history of discrimination, powerlessness, possession of immutable characteristics are factors deemed essential for identification of suspect classes and heightened scrutiny within equal protection analysis; see, Cleburne v, Cleburne Living Center, Inc, 473 U.S. 432 (1985), Kimel v. Florida Bd. of 89

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disabilities the voice necessary to avoid any history of discrimination. The court then concluded that rational basis scrutiny was appropriate for people with disabilities.5 Thus, the message from the Supreme Court of the United States was clear. People with disabilities are insufficiently important to qualify as a protected class and so they may be afforded diminished protections under the law.6 The Supreme Court of the United States trivialized the hardship of people with disabilities. The decision in Garrett v. Alabama7 has re-enforced the trivialization perspective of disabilities by the US Supreme Court. The majority on the Court found that states cannot be required "to make special accommodations for the disabled, so long as their actions toward such individuals are rational." The Court noted the ADA's legislative history failed to demonstrate any pattern of irrational employment discrimination against the disabled. Professor Mayerson believes that the "decision sets a new low in equal protection law. A state can [now] exclude persons with disabilities based on 'negative attitudes' and 'fear' and still not violate the 14th Amendment guarantee of equal protection of the law."8

Regents, 528 U.S. 62 (2000), South Carolina v. Katzenbach 383 U.S. 301 (1965). 5 Stone, et al., at 782-784 (Supreme Court fearing that they will be facing a “discrete and insular minority” claim around every corner). 6 See, Martha Minnow, “When Difference Has Its Home: Group Homes for the Mentally Retarded, Equal Protection and the Legal Treatment of Difference,” (1987) 22 Harv. C.R.-C.L.L. Rev. 111 (Minnow presents a social relations theory for evaluating discriminatory treatment of groups such as those with mental disabilities, where difference should be accepted only if it does not validate the existing distribution of power). 7 Board of Trustees of the University of Alabama v. Garrett, (2001) WL 173556 (U.S.Ala.) (arguing the actions toward the disabled need only be rational; if special accommodations for the disabled are to be required, they have to come from positive law, not via the Equal Protection Clause because state immunity applies to state governments sued for damages under the ADA; the Court expanded the sphere of state immunity and in essence, struck down part of the ADA as unconstitutional - Title I which deals with employment). 8 Ibid; see, Disability Rights Education and Defense Fund, Press Release, “Civil Rights Advocates Decry Supreme Court Decision” (February 21, 2001) DREDF; (Mayerson notes that the majority decision ignores the voluminous legislative history supporting the ADA as well as the hundreds of pages of documentation submitted to the Court for consideration in the Garrett decision).

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The recent US Supreme Court decision in Tennessee v. Lane et al.,9 offers a further continuation of essentially the same approach. In this case, paraplegics Lane and Jones were unable to obtain access to second floor courtrooms because of the absence of elevators. Lane was defending criminal charges and Jones, a court reporter, was denied access to employment.10 At his appearance, Lane crawled on hands and knees to a second floor courtroom to defend charges. For a subsequent hearing, he refused to crawl and was cited for failure to appear. Jones lost work because she was not able to gain access to several county courthouses.11 They then brought claims against the State of Tennessee. Justice Stevens wrote for the majority in a 5-4 decision. He held that Title II of the ADA applied to claims implicating the fundamental right of access to the courts and such cases constitute a valid exercise of Congressional enforcement power under the Fourteenth Amendment. Further, the majority found that Title II of the ADA, which prohibits discrimination by a public entity, validly abrogated Eleventh Amendment immunity through enforcement of the Fourteenth Amendment, for cases implicating the fundamental right of access to the courts. Further, the court found the Due Process and the Confrontation Clauses require a "meaningful opportunity to be heard."12 While disability issues invoke the lowest level of scrutiny on constitutional questions, the levels of scrutiny approach in Tennessee was not crucial because of the court determined that there was a fundamental right to justice. Many may see Tennessee as a great victory for those with disabilities. It is not. It is at best, a very limited and narrow win. State courthouses will now be required to comply with the ADA and ensure appropriate physical access to courtrooms because access to justice is a fundamental right. Nonetheless, the majority did, for the purposes of Title II, acknowledge some history of discrimination against those with disabilities.13 Whether this finding will translate into wider protections remains open subject to additional litigation involving Titles II and III. It 9 124 S.Ct. 1978 (2004) (it is important to not that the decision in Tennessee was brought under ADA Title II - access to public services. The case was not brought on the basis of Title I -access to employment. Thus, the relevant employment issues have been already decided Garrett v. Alabama). 10 Ibid at 1982-83. 11 Ibid. 12 Ibid at 1988. 13

Ibid at 1987. 91

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is also noteworthy, that Justices Rehnquist, Thomas, Scalia and Kennedy prepared a strong dissent in Tennessee. They argued that there was no evidence of purposive discrimination against the disabled, no history of discrimination, no violation of due process or fundamental rights for the denial of access to judicial proceedings and further, that employers have the right to conserve scare financial resources by hiring the non-disabled.14 In Canada, the Supreme Court dismissed the use of a US levels of scrutiny approach to the analysis of equality rights in Andrews15 and Turpin.16 Naturally, such an approach would permit some groups to enjoy more equality than others and it would place the courts in the unacceptable position of judging for themselves whose claims to equality, among those recognized by Section 15, are more important. Furthermore, the approach articulated in Andrews and Turpin emphasized that the nine grounds enumerated in Section 15 did not limit the groups protected by the equality provisions. Rather, these decisions left it to the courts to add other non-enumerated grounds of discrimination on the basis of any new grounds that can be characterized as "analogous" to those stated in Section 15.17 By not limiting the extent of actionable grounds, the Supreme Court has permitted a level of equality protection that can serve those it was intended to protect without constraining either legislative or judicial endorsement of other groups also deserving of protection. It is a generous approach to equality rights that goes far beyond the rights afforded to Americans under US constitutional analysis. Section 15 also proscribes adverse effects discrimination as well as direct discrimination. The United States equal protection clause approach prohibits only purposive discrimination. This additional distinction is based on a recognition by the Supreme Court of Canada that systemic discrimination "is in fact more

14

Ibid at 2001-06, 2010-13. Law Society of British Columbia v. Andrews, (1989) 1 S.C.R. 143. 16 Turpin v. Queen, (1989) 1 S.C.R. 1296. 17 This broad approach permits the addition of more protected groups as necessary is consistent with the language contained in Section 1 of the Charter. This Section notes that the Charter “ guarantees the rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This very language suggests flexibility in the interpretation of the Charter. The identification of a list of protected groups or protected disabilities without any flexible mechanism to allow for addition would not be reasonable, at least in my view. 15

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pervasive than intentional discrimination in Canadian society."18 The message is clear. People with disabilities are to be given the equality protections necessary to be free from employment discrimination.19 The Canadian constitutional approach is preferable to the American equal protection clause approach because it clearly guarantees equality rights to persons with disabilities. The United States should amend its Constitution to introduce a flexible means of adding classes and protecting individuals with disabilities.20 The United States should also eliminate the levels of scrutiny approach and adopt a system that provides heightened scrutiny, or an equal level of scrutiny to all protected groups. One can always hope for such change, but such changes are not realistic, certainly not in the foreseeable future. The levels of scrutiny approach is deeply entrenched and widely accepted within American jurisprudence.

18 Lepofsky, David, “The Canadian Judicial Approach to Equality Rights: Freedom Ride or Roller Coaster?” (Winter 1992) 55 Law & Contemp. Probs. 167, 178 ; See, Canadian Human Rights Commission v. Taylor et al., (1990) 75 D.L.R. (4th) 577, 603. 19 The Section 15 analogous feature is significant in disability analysis because conditions that might not be covered as disabilities can be protected on analogous grounds. See Arnold v. Canada, (1997) 1 F.C. 582. In Arnold the court was unsure whether a learning disability was covered as a disability under Section 15. But, the court also concluded that it was inconsequential whether the learning disability was covered or not because it was clearly covered under analogous grounds. 20 An amendment is not essential to bring about the desired change, but, it is one means of ensuring that a specific group, the disabled, are given heightened attention in equal protection analysis. Nonetheless, I acknowledge that an amendment is very unlikely because of the probable difficulty in having sufficient agreement to enable passage by Congress and ratification by the states. This is particularly true in view of the recent Supreme Court decision in PGA Tour v. Martin, a case allowing a golfer to use a cart between holes while playing on the PGA Tour. The decision feeds the popular (mis)perception that the ADA is an extraordinary instrument for the rights of the disabled. Another alternative means of protecting the rights of the disabled might be to have different judges appointed to the Supreme Court, producing a Court more likely to agree with the vigorous dissent in Cleburne and the strong dissent in Garrett. 93

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The Definition of Disability This section compares the principal statutes dealing with employment discrimination for individuals with disabilities in the United States and Canada. One of the central questions involved in this kind of a comparison or in any analysis of disability issues relates to the definition given to the term "disability." The definition limits the scope of protective coverage. This discussion focuses on the definitions given to disability by the various human rights laws in Canada and compares the approach to that taken in the primary legislation in the United States, the Americans with Disabilities Act (ADA). By passing the ADA in 1990, the United States Congress intended to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."21 Notwithstanding this remedial objective, over ten years later confusion abounds in both the interpretation of this statute and its application. This confusion and uncertainty has pushed the courts toward very conservative interpretations of the law. Professor Ruth Colker has recently published the results of a statistical study that refutes the popular perception that "the ADA ... [is] a windfall for plaintiffs."22 Her study examined all of the ADA cases available on Westlaw between the date the ADA became effective in 1992 and July 1998.23 The findings of the study were quite “damning,” revealing that an “amazing” 94 percent of ADA cases involving employment discrimination are decided in favour of employers.24 The same study found that for the cases on appeal, 84 percent were decided in favour of employers.25 In the Tenth Circuit, the lower courts decided 21

42 U.S.C. s 12101(b)(1). Ruth Colker, “The Americans with Disabilities Act: A Windfall for Defendants” (1999) 34 Harvard C.R.-C.L.L. Rev. 99, 99-100 (Professor Colker states that “only prisoner cases fare as poorly” as ADA cases in the federal courts). Ibid. at 100 note 10. 23 Ibid at 103 (describing the methodology used in the development of the ADA case database; Professor Colker also supplemented the case database with some unreported cases and cases available from other sources). 24 Ibid at 100 (many ADA cases are dismissed before trial, often during summary judgment; the results of her study are summarized in Table 1 on page 107). 25 Ibid (Colker’s analysis was conducted prior to the Supreme Court’s trilogy of decisions during the summer of 1999, holdings which further restricted the definition of disability by requiring the inclusion of remedial measures within the 22

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every ADA case in favour of the defendant.26 These statistics point to grievous inadequacies in the law with respect to its remedial objective, protecting people with disabilities.27 Ruth Colker argues that judges have abused summary judgment rules to the disservice of the ADA.28 I agree with Colker that this abuse is one basis for this extreme deficiency, but I also argue that much of this failure to protect plaintiffs is due to the detailed and complex definition of disability given in the ADA and a subsequent further narrowing of its application by American courts.29 It is the restricted definition that allows cases to be dismissed on motions for summary judgment and other technicalities.30 The ADA unduly and severely narrows the definition of disability. It does this by attempting to create a precise definition that narrows the boundaries of what conditions qualify for protection as a disability under the law. The term 'disability' is defined and then the words used to define assessment of disability; due to this additional restriction, the percentage of proemployer decisions is likely to increase even further in coming years). 26 Ibid. at 107. 27 Cheryl Anderson, “‘Deserving Disabilities’: Why The Definition of Disability Under the Americans with Disabilities Act Should Be Revised to Eliminate the Substantial Limitation Requirement” (2000) 65 MOLR 83 (hereafter “Anderson, Deserving Disabilities” ) (arguing that Congress adopted an evaluation process for disabilities that undermines the purpose that the legislators had in passing the ADA by choosing to frame the inquiry around the question of whether an alleged impairment “substantially limits” a major life activity, and thus the legal evaluation process has perpetuated rather than resolved stereotyping problems). 28 Ruth Colker, at 110. 29 Ibid. at 160 (Colker rightly believes that if some of the employment cases could get before a jury, the proportion of pro-plaintiffs decisions would increase, but she also acknowledges that further investigation of these problems is necessary and that the definition of disability may increasingly play a role in denying plaintiffs a remedy); see also, ibid. at 153 (discussing mitigating measures and correctable disability rule problems). 30 Professor Colker’s work is supported by a 1998 American Bar Association (ABA) study. The ABA study examined 1,200 ADA cases and found that 92 percent of the employment discrimination cases before the courts and 86 percent of the administrative complaints before the EEOC were lost by the employees. See, R. Porter, “Employees lose most ADA suits, study shows” Trial, Sept. 1998, Vol 34, No. 9 at 16 (ABA study finds that most ADA cases are lost by employees); see also, M. Maslanka, “SOS for the Americans with Disabilities Act” New Jersey Law Journal, 14 Sept. 1998, Vol. 153, No. 11, at 28. 95

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disability are also defined, further narrowing the scope of disability under the ADA. Ultimately, the definition acknowledges that not all disabilities qualify for protection because they are either insufficiently serious or too severe to warrant workplace protection. Consequently, one might have a disability, but it might not be a disability that is covered under the law. This is because plaintiffs are often too disabled to do the job, or are insufficiently disabled to qualify for reasonable accommodations. Thus, plaintiffs must manoeuver on a narrow path between being too disabled or insufficiently disabled.31 Two renderings of the ADA statutory language have contributed greatly to the narrowing of what constitutes a qualified disability. First, the courts have interpreted the "substantial impairment of a major life activity"32 in a very restrictive fashion.33 The result has been that many genuine impairments do not qualify as sufficiently substantial to warrant statutory protection. Second, the courts have also narrowed the scope of disabilities qualified for protection by evaluating the degree of mitigated impairment, that is the disability after the use of palliative and remedial measures, rather than assessing the degree of unmitigated impairment.34 This comparison is undertaken by first considering the "substantial limitation" approach to disability law commonly used in the United States. Cases and hypothetical examples are used as illustrations. These 31

J.G. Frierson, “Heads You Lose, Tails You Lose: A Disturbing Judicial Trend in Defining Disability” (1997) 48 Lab. L. J. 419 (if an employee who suffered discrimination is healthy enough to perform the job, he or she is not disabled under the ADA, but, if a disability is severe enough to be covered by the ADA, the employee is also not covered by the ADA because they are then “not qualified” for the job - either way the plaintiff loses). 32 42 U.S.C. § 12102(2)(A). 33 See Steven Locke, “The Incredible Shrinking Protected Class: Redefining the Scope of Disability Law Under the Americans with Disabilities Act” (1997) 68 U.Col. L. Rev. 122. 34 42 U.S.C. §§ 12210-11 (although not specifically dealt with in this book, it should be noted that the ADA also narrows its statutory scope with a laundry list of statutory exclusions. Title V of the ADA identifies a list of conditions that are expressly excluded from legislative protection. These conditions are: homosexuality, bisexuality, transvestitism, transsexualism, paedophilia, exhibitionism, voyeurism, gender identity disorders, compulsive gambling, kleptomania, pyromania, psychoactive substance use disorders resulting from current illegal use of drugs, and any individual currently engaging in the illegal use of drugs).

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examples are compared to the broader Canadian approach. The Canadian approach is generally more concerned with the presence of a measurable abnormality.35 It is a much more expansive approach to the definition. Canadian disability law does not have nearly as many case examples simply because these issues have been litigated to a much greater extent within the United States. Nevertheless, some cases are significant. Second, the definitional issues of whether palliative or mitigative measures should be taken into account in the assessment disability are discussed and cases are used to demonstrate some rather substantive differences in the approaches used in the two countries.

Substantial Impairment versus Measurable Impairment Under the ADA, protection is extended only to those who are "qualified individuals with disabilities" and have the "requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position."36 To have a disability, one must have an impairment that "substantially limits" one or more major life activities, or have a record of the impairment or have been regarded as having such an impairment.37 Understanding the "substantially limited" clause of the ADA is central to understanding how disabilities are evaluated by American courts. Under the ADA, a disability must impair one to the extent that one is either unable to perform a major life activity that the average person in the general population can perform, or that one is significantly restricted with respect to the condition, manner, or duration in the performance of a major life activity, compared to the average person.38 The interpretive guidance contains an additional requirement for the major life activity of working, the activity which is most obviously relevant to employment. The instructions for the major life activity of working note that:

35

See, Dick Sobsey, “Disability, Discrimination and the Law” (1993) 2 Health L. Rev. No. 1, 6-10, Health Law Institute, University of Alberta. 36 29 C.F.R. § 1630.2 (m) (1997). 37 42 U.S.C. § 12102 (2) (1994). 38 29 C.F.R. s 1630.2(j)(1)(1996) (EEOC promulgated interpretive regulations for Title I employment discrimination questions). 97

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Perspectives on Disability [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.39

The language in the regulation is intended to preclude those persons with extraordinary talents, but who are facing a situation where, having lost those talents by injury, from seeking protection and accommodation under the ADA. The EEOC provides an example of a professional baseball pitcher disabled by injury.40 This appears to logically constrain the breadth of disability claims, however, one might also wonder why such a person might be better thought of as simply being not a "qualified individual" under the ADA on the basis that no reasonable accommodation would allow on-the-job performance. The result is that an employee has to show that he or she is substantially limited with respect to performance in a class of jobs, not just one position. This approach to the major life activity of working has been interpreted very narrowly and as a result the test has been particularly detrimental to the job security of disabled employees and the employment prospects of job applicants. In Gilbert v. Storage Tech.Corp.,41 an employer was granted summary judgment because the former employee's asthma did not constitute a disability under the ADA. The plaintiff, an engineer, had asthma all of his life, but never experienced any problems at work until his employer transferred him to a new workplace. He took action against his employer for employment discrimination after his employer terminated him due to attendance problems related to his asthma. The court determined that the plaintiff failed to show that he had a disability that was protected by the ADA. According to the court, his asthma did not limit any major life activity. In accord with the EEOC 39

29 C.F.R. s 1630.2(j)(3) (1996) (referred to by some courts and writers as the “single job” rule). 40 The regulations promulgated by the EEOC give an example to illustrate the purpose of this regulation. The guidance says that a professional baseball player who has developed a bad elbow which impairs his pitching performance would be precluded from having a claim under the ADA because he is no longer able to perform this particularly specialized and high performance job. See 29 C.F.R. pt. 1630 app. s. 1630 (2)(j) (1996). 41 Gilbert v. Storage Tech. Corp., No. 95-1060 (10 Cir. Oct. 11. 1996).

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interpretive guidance, the court reasoned that the inability to perform a single particular job does not constitute a substantial limitation on the ability to work. The court concluded that the plaintiff did not show that his asthma restricted his ability to perform a class of jobs or a broad range of jobs in various classes. Consequently, the plaintiff did not have a disability that was substantially limiting and, therefore, did not have a disability that was protected by the ADA.42 In Bolton v. Scrivner,43 the plaintiff also failed to show that he could not perform a class of jobs. Here the plaintiff worked as an order selector in a grocery warehouse when he suffered a work related injury to his feet. A reasonable accommodation could have been made to enable the plaintiff to perform his job. However, the court's focus was not on the feasibility of accommodation, but rather on the nature of the disability: whether it was substantially limiting, and whether the plaintiff was limited in undertaking a class of jobs. The court found that the plaintiff's "inability to return to his particular job without some accommodation does not demonstrate a substantial limitation in the major life activity of working."44 Consequently, because the plaintiff might be able to do other work in the same class of jobs, he is deemed not substantially limited, and excluded from protection under the ADA. Thus, his employer may legally terminate his employment without any liability for discrimination. In an interesting employment qualification testing case involving dyslexia, a Virginia federal court granted summary judgment to the state corrections department holding that the applicant's learning disability was not covered under the ADA.45 After failing the test twice, Burke, the applicant, sought accommodations for dyslexia, attention deficit disorder and hyperactivity disorder (ADHD). The court said that he was not substantially limited in a major life activity simply because he could not perform the test for this particular position for which he applied. In other words, there were other jobs, in the same class of jobs, that Burke was able to perform (although not addressed by the court, presumably these other jobs did not require qualification testing). Moreover, the court concluded that because of the applicant's learning disability, he could not undertake the essential job functions of a correctional officer: reading, writing and understanding oral instructions. The court was dismissive of 42 43 44 45

Ibid. 36 F.3d 939 (10th Cir. 1994). Ibid. at 493. Burke v. Virginia, 938 F. Supp. 320 (ED. Va. 1996). 99

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the plaintiff's claims that he could do the job in spite of his problems with the test, and concluded, in a very cavalier fashion, that the test was closely related to job performance.46 Moreover, the court was critical of the applicant's failure to request on-the-job accommodations, ignoring the fact that the applicant said he could do the job, and that the sought after accommodation was for the written test only. These cases are not isolated events.47 They are in fact quite common within American jurisprudence. I have read hundreds of cases and it is the same depressing story over and over. In case after case, the defendant is able to successfully challenge the plaintiff's claim that he or she meets the statutory requirement of having a physical or mental impairment that substantially limits a major life activity. In making these decisions, the courts carefully parse every word, every phase and sometimes even the tenses used within the definition. Individuals with impairments such as epilepsy, diabetes, manic depression and a wide range of other debilitating conditions have been found to have conditions not covered by the ADA.

46

Under the ADA, the test is “business necessity,” it is not a BFOR(Q) test, but it seems to operate in the same way as the BFOQ test used elsewhere in US employment law. 47 Elstner v. Southwestern Bell Tel. Co. 659 F. Supp. 1328 (S.D. Tex 1987), affirmed, 863 F. 2d 881 (5th Cir. 1988) (telephone service technician injured knee on the job and sought transfer and he was demoted; disability not substantially limited as other work can be found within the same class of jobs; court said substantially limits means the degree to which the impairment affects employability generally); Jasany v. United States, 755 F.2d 1244 (6th Cir. 1985) (postal employee with job related vision problems - eye strain sought reassignment; denied because not substantially limited in a range of jobs, finding that substantially limited relates to employability in general); Chandler v. City of Dallas, 2 F.3d 1385 (where insulin dependent diabetic driver of city vehicles presents a limited, but, still sufficiently significant risk to public; moreover, court stated that the plaintiff not substantially limited in employability generally, within a class of jobs, and therefore, is not covered by the ADA); Price v. Marathon Cheese Corp., 119 F.3d 330 (5th Cir. 1997) (because former employee with carpal tunnel syndrome was able to perform other jobs besides the one she sought accommodations for, the court concluded that she was not substantially limited in one or more major life activities, and thus not covered by the ADA); Nuzum Sr. v. Ozark Automotive Distributors, Inc., 2004 WL 1325765, — F. Supp. 2d — (2004) (plaintiff not limited in employment where not limited in a broad class of jobs, therefore plaintiff is not entitled to accommodations).

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An Illinois court found that an employee's heart condition was not a disability under the ADA because it did not substantially limit a major life activity.48 The condition only slightly limited his capacity to work (or carry out other major life activities) and so his firm was not liable for firing him because of his heart condition.49 By relying on a very narrow interpretation of the substantially limited in a major life activity test, the courts have been able to exclude many plaintiffs from statutory coverage, thus denying them from even reaching any analysis of reasonable accommodations. The courts appear to be interpreting "substantially limited" as meaning a severe restriction on a major life activity. As a result, a partial limitation does not require an accommodation. The harshness of this restricted interpretation of substantially limited is evident in many ADA cases. For example, in Williams v. Channel,50 the plaintiff, in consultation with his doctor, sought a 25 pound lifting limitation as an accommodation from his employer. The court denied the plaintiff's request on the grounds that a 25 pound limitation does not constitute a significant restriction on one's ability to lift, in comparison to an average person's abilities to work or conduct any other major life activities. This reasoning enabled the court to conclude that the plaintiff 48

Thompson v. American Hosp.. Association, No. 94 C 3271 (N.D. Ill. Sept. 30, 1996); see also, Weber v. Strippit, Inc. 9 AD Cases 961 (8th Cir. 1999) (absence of fully functioning cardiovascular system found to be not sufficiently disabling to warrant ADA coverage). 49 Ibid; see also, Baerga v, Hospital for Special Surgery, 2003 WL 22251294 (S.D. N.Y. Sept. 30 2003) (over failure to accommodate; court found his coronary heart disease did not substantially limit a major life activity and therefore, the impairment was not a covered disability under the ADA; also finding employee did not have a “record” of disability and mere notice of disability is insufficient to find the employer “regarded” the employee as having a disability; employee’s heart condition and accommodations did not demonstrate the employer regarded employee as disabled because, to prevail plaintiff had to show that his impairment(s) substantially limited working in “a broad range of jobs”). 50 101 F.3d 346 (4th Cir. 1996); see also, Nuzum Sr. v. Ozark Automotive Distributors, Inc., 2004 WL 1325765, — F. Supp. 2d — (2004) (as the result of tendinitis medical professionals imposed a lifting restriction on the plaintiff responsibilities at work; employee sought accommodations, requests were denied and plaintiff was terminated; court found that the lifting restrictions, a variety of light duty assignments as necessary to retain employment do not demonstrate the presence of a impairment that substantially limits a major life activity, not a limitation on a class of jobs and as a result the plaintiff does not have a disability that is covered by the ADA). 101

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was not "substantially limit[ed] ... in his ability to perform either a class of jobs or a broad range of jobs in various classes."51 Peter David Blanck52 interprets this narrow approach to the substantially limited analysis by observing that the substantially limited definition of disability does not mean that a covered individual must work at the job of his choice. Rather, to fall under the first prong [substantially limited] definition, the individual's "access" to the relevant labor market must be substantially limited by the impairment or condition. Put differently, an individual's failure to qualify for one job in a given labor market, even because of a substantial impairment, does not mean that an individual has a covered disability for the purposes of Title I [of the ADA] analysis.53 A plaintiff has to show that their particular bio-medical condition is substantially limiting, and they must also show that, because of their substantial limitation, they are being denied access to a class of jobs. If denial is only for one particular job, then the discrimination claim will be dismissed.54 While much of this discussion negatively portrays the ADA as an ineffective tool for remedying discrimination, there are some successes. Plaintiffs can win where there is no issue of “substantially limited” in a major life activity and where the discrimination is direct and acute. Some of these suits are gems. A case in point is the recent jury verdict in Brady v. Wal-Mart.55 A pharmacy employee with cerebral palsy 51

Ibid. Peter David Blanck, “The Economics of the Employment Provisions of the Americans with Disabilities Act: Part I - Workplace Accommodations,” (1997) 46 DePaul L. Rev. 877, 881. 53 Ibid at 881. 54 See, Steven Lock at 122. See, Robert Burgdorf, Jr. “Substantially Limited Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability,” (1997) 42 Vill. L. Rev. 409. 55 See, New York Times, “Wal-Mart Is Found Liable in Bias Against Disabled Man,” Section C3, Thursday, February 24, 2005 (jury awarded employee $7.5 million in damages when cerebral palsy employee was demoted due to biases related to his ability to work in the pharmacy; Brady and the Guckenberger case discussed in Chapter V put employers and colleges on notice of a need for sensitivity, understanding as part of the process of non-discrimination. It also puts them on notice in regards to being more sophisticated while engaging in any discriminatory conduct). 52

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was demoted to emptying garbage bins in the parking lot even though he demonstrated he able to do the work required in the pharmacy. The demotion was due to image and related bias. The substantial jury verdict, although rare, effectively sends a message that discrimination may have a very high price. Verdicts like Brady have an educational affect on those who would discriminate. Plaintiffs have sometimes tried to use the "regarded as" prong of the ADA to get around the above described difficulties. They have argued that even if they do not meet the requirements of having a disability that substantially limits a major life activity, employer's actions against them were made on the basis of regarding them as disabled. One of the areas where the "regarded as" prong has been somewhat successful is where people with facial disfigurements have been denied employment.56 However, outside of this one area, these "regarded as" arguments have almost always failed.57 The courts have used arguments that are similar to the ones described above to deny the disabled statutory protection. If one is found to be not substantially limited on the grounds that one can find other employment generally in the same class of jobs, then the employer is not "regarding them" as substantially limited.58 Such an 56

See, Comment, “Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basis of Physical Appearance” (1987) 100 Harvard Law Review 2035 (discussion of facial disfigurement and how it might be treated in a variety of employment situations; however, there has not been much litigation within this area of the regarded as clause). 57 Actually, there is very little litigation in this area; see, Chico Dairy Co. v. West Virginian Human Rights Commission, 181 W.Va. 238 (1989), 382 S.E..2d 75 (court upheld refusal of promotion to manager for an employee with a sunken eye socket because the condition was not protected); but see, Hodgdon v. Mt. Mansfield Co., 160 Vt. 150 (1992), 624 A.2d 1122 (toothless chambermaid protected because employer regarded her as disabled). 58 See, Witter v. Delta Air Lines, Inc. 138 F.3d. 1366 (11th Cir. 1998) (for an employee to be regarded as disabled the employer must believe that employee is unable to perform a class of jobs, not just a single job); see also, Jerry Goldstein, Robert Kellner, Bradford Warbasse, “ADA, Ten Years Later” (2000) 33 - Jun MDBJ 32 (describing some of the difficulties with the regarded as prong in the ADA, the narrow interpretation of the prong, finding that plaintiffs are not regarded as disabled because they are not substantially limited in a broad range of jobs in various classes; the authors also note that sometimes the courts do interpret this aspect of the ADA correctly and they give a few examples); see also, Merit v. Southeastern Pennsylvania Transit Authority, 2004 WL 945133 (E.D. Pa. April 30, 2004) (terminated employee not substantially limited in the major life activity 103

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interpretation of the law is extremely narrow and it completely undermines the very purpose of the ADA. Unfortunately, under the ADA, the core of the legal analysis is on the evaluation of the disability, a focus which encourages the courts and defendants to engage in a "second guessing" of the impairment in question so that certain claims are excluded from protection under the law. This "second guessing" amounts to little more than trivialization of the disability in question. The more relevant and probative question concerning discrimination is whether a reasonable accommodation would allow an applicant or an incumbent employee to perform the essential functions of the job. In most cases this question is never reached.59 Additionally, many of the cases lost by plaintiffs on this definitional criterion could be saved if only the courts would use the "regarded as" Where one is clause within the ADA as Congress intended it.60 perceived as having a disability and the employer demotes, denies employment or a promotion, the employer should be held accountable for discriminatory conduct. The plaintiff should not have to show that the disability or perceived disability in question denies access to a class of jobs. The approach is quite different in Canada. For example, in Ontario, the Ontario Human Rights Code, which provides the basis of protection for persons with disabilities, does not contain the "substantial limitation" language which is a decisive clause in the American law. Discrimination is simply based on adverse action "because of handicap." Nor is there any requirement for the disability in question to deny access to a class of jobs.

of breathing and working; plaintiff had migraine headaches, asthma, difficulty breathing and swollen blood vessels; alleged impairments did not substantially limit a major life activity; did not preclude employment in more than one type of job or a class of jobs and therefore, plaintiff was not disabled within the meaning of the ADA). 59 Catherine J. Lanctot, “Ad Hoc Decision Making and Per Se Prejudice: How Individualizing the Determination of ‘Disability’ Undermines the ADA,” (1997) 42 Vill. L.R. 327, 332 (today most ADA cases are dismissed at summary judgment); See, Colker, at 119, 123-26 (cases are dismissed before trial). 60 Arlene Mayerson, “Restoring Regard for the ‘Regarded As’ Prong: Giving Effect to Congressional Intent” (1997) 42 Vill.L.Rev. 587 (arguing that Congress intended the regarded as prong of the ADA to provide protections for those who were perceived to have a disability, and then on this basis treated in a discriminatory manner).

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The Ontario Code defines "because of handicap" as a situation where a person has, or is believed to have had "any degree of physical disability .... caused by bodily injury, birth defect or illness ... [various disabilities are listed, but protection is not limited to the list of identified aliments]."61 The "any degree of ... disability" language is clearly much broader than the "substantial limitation of a major life activity" language in the ADA. This language suggests that if the disability is measurable, then protection should be extended, at least to the extent of investigating the claim further. Further, the disabilities specifically covered by the Ontario Code include, "diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a guide dog or on a wheelchair or other remedial device."62 Mental disabilities are identified as "a mental disorder, mental retardation or impairment, and learning disabilities or a dysfunction in the ability to understand or use symbols or spoken language."63 The Code defines "because of handicap" in very broad terms and, as a result, a wide range of aliments and conditions have been found to be handicaps. In Nancy Eber's description of Ontario Human Rights Code, she notes that other conditions have also been found to be disabilities including, AIDS, allergies, asthma, cancer, cerebral palsy, Crohn's disease, hypertension and multiple sclerosis.64 She also observes that, in spite of the broad definition of disability, common sense has prevailed in the assessment of what ailments come within the meaning of "because of handicap" and, thus, common and trivial conditions such as flus and colds are not handicaps within the meaning of the Code.65 The Code is remedial legislation, intended to prohibit discrimination. Therefore, a broad and liberal construction of the term handicap is appropriate with 61

Ontario Human Rights Code, R.S.O., (1990) ch. H.19, § 10(1) (defining disability in a very different, and in a much broader way than is done by the ADA); see also, Dick Sobsey, “Disability, Discrimination and the Law” (1993) 2 Health L. Rev. No. 1, 6-10, Health Law Institute, University of Alberta ( describing an approach to the definition of disability that is quite broad, where an impairment is a “measurable abnormality in an individual’s anatomy or function”). 62 Ontario Human Rights Code, (1990) RSO Ch H.19 s 10(1)(a). 63 Ibid. 64 Nancy Eber, A Practical Guide to the Ontario Human Rights Code, (Aurora, Ontario: Canada Law Book Inc., 1995) at 9. 65 Ibid. 105

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respect to its scope of protection from discrimination.66 Janet Budgell, a lawyer with the Advocacy Resource Center (ARCH) in Toronto, has stated the scope of the protections [under the law] ... will continue to evolve along with our understanding of disabilities. In the employment context, the most important factor in terms of "defining" disability is to understand and appreciate the broad spectrum of abilities among people, and to respect and promote those abilities through equal treatment, including the accommodation of differences.67 For the most part, the courts and tribunals in Canada have followed this broader approach to defining disabilities. In Gill v. Canada,68 a learning disabled applicant to Revenue Canada asked for accommodations for an employment qualification test. Accommodations were offered, but the proposed accommodations were different and less than those requested. The plaintiff took action against the Public Service Commission (PSC) and was awarded the sought after accommodations. This case is especially interesting because the court focussed its analysis on the availability of a reasonable accommodation and whether such an accommodation might actually test the applicant's abilities rather then the applicant's disability. The legal analysis did not place primary attention on the issue of whether the applicant was really learning disabled or not. Nor did the analysis deal extensively with the nature of the biomedical condition or closely scrutinize the degree of the applicant's disability. 66

See, Janet L. Budgell, Advocacy Resource Centre for the Handicapped (ARCH), Insight Educational Services, The Duty to Accommodate: Insight Educational Services Examines the legal and practical aspects of integrating people with disabilities into your workforce, “Article I: Determining and Defining Disability” (Toronto, Ontario: Insight Press, 1992) at 13 (see also pages 17-33, discussing definitions and the need for a handicap condition to be the product of a birth defect, illness or injury, and acknowledging the need for the condition to be more than transitory, thus restricting but not precluding claims on the grounds of obesity and hypertension; also precluding minor handicaps; citing Horton v. Niagara (1988) 9 C.H.R.R. D/4611; Morgoch v. Ottawa (City)(No.2) (1990) 11 C.H.R.R. D/30; Ouimette v. Lilly Cups Ltd. (1990) 12 C.H.R.R. D/19; Ontario Human Rights Comm. v. Vogue Shoes (1991) 14 C.H.R.R. D/425). 67 Ibid at 34. 68 Gill v. Canada (Public Service Commission) (1996) 25 C.H.H.R. D/439, 96 C.L.L.C. p230-024 (F.C.T.D).

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Expert evidence regarding the nature of the disability was presented to the tribunal and it was found sufficient. The focus of the legal arguments was not about the nature or degree of the impairment. The Gill case does not stand for the position that every person with a learning disability should be awarded accommodations. In Manitoba Government Employees' Assn. v . Manitoba, an employee was allegedly terminated for just cause. She argued that her learning disability affected her capacity to undertake the administrative aspects of her job. Expert testimony was presented describing her learning disability as "a mild disability," and a similar admission was made by the plaintiff. This lead both the court and an arbitrator in the prior decision to conclude that "there had not been established a sufficient degree of diminished capacity to affect the grievor in doing her job [to warrant accommodations] ... [and thus] the dismissal was for just cause."69 Such a determination is consistent with the view that minor conditions do not warrant protection under the law.70 Where impairments are more significant, it is "not the handicap ... that results in protection for the individual. Rather, it is the denial of equal opportunity ... where an artificial barrier to employment because of handicap [is imposed] that in fact presents no real inability to do the job."71 Another factor that played a role in this decision was that the employer was not informed of the plaintiff's assertion that she had a disability until after the termination took place.72 Notice to the employer is also a component of this analysis.73 69

Ibid. at para 22-23. See, Ouimette v. Lily Cups Ltd., (1990) 12 C.H.R.R. D/19, 90 CLLC p 17,019 (Ont. Bd. Inq.) (minor or trivial conditions do not warrant protection; the protection of a minor condition would trivialize the purposes of the legislation; the disability in question must be more than transitory in nature with more than a limited impact on one’s ability to carry out life’s functions, such as the cold or the flu). 71 Ibid at p. D/33, para. 59. 72 See, Manitoba Gov’t Employees’ Assn. v. Manitoba, (1993) M.J. No. 573, DRS 94-08447 (notice of learning disability after dismissal, the grievor should have recognized the problem and the means necessary to correct it; employers must be informed or know of the condition in order to provide accommodations; if they have no knowledge then there may be no discrimination). 73 The employer has to be informed, have knowledge of the disability in order to award accommodations. See, Gloria Companion et al., v. Michelle Jones, (1999) 35 C.H.R.R. D/164 (Nfld. Trib) (employer must have notice of the disability, without notice or knowledge accommodations cannot be awarded). 70

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If the Gill case was evaluated within the American judicial system, the approach by the courts and the parties would have been quite different. These differences are imposed on the analysis by the statutory language and structure of the ADA. The ADA requires that the learning disability substantially limit a major life activity, in this case probably learning and /or working. In the US, the courts would engage in a detailed assessment of the plaintiff's disability and the degree of functional impairment compared to the average person. The level of detail explored might be extraordinary. A US court would look at whether the plaintiff could do other jobs in the same class of positions and compare his achievement to that of the average person. Under the ADA, the plaintiff would probably not even have a claim because his or her impairment would be insufficient to warrant coverage. On the issue of whether the plaintiff would be "regarded as" disabled, attention would be given to the availability of other jobs, for example, other positions where, perhaps, the application test in question was not used. If the plaintiff could work in other positions in the same general class of jobs, then the plaintiff would not be "regarded as" substantially limited in the major life activity of working.74 Another Canadian case which illustrates the degree of impairment issue is Zaryski v. Loftsgard.75 Zaryski worked in the office of an automobile sales operation for about two years. She was moody, irritable and had difficulties getting along with co-workers. At times she was confrontational. She offered her resignation and the manager refused it. She had another confrontation with a co-worker. She then visited a doctor and was diagnosed with depression. About the same time she was terminated from her job and her manager refused to reconsider the decision to terminate, even after being informed of the diagnosis. The human rights tribunal noted that her depression was "a disorder of her thoughts, feelings, and behaviour which affected her ability to associate with other persons and meet the ordinary demands of life." The tribunal regarded her condition to be within the meaning of the Code. Moreover, the tribunal acknowledged even though it was not a chronic condition, and that it might not be all that significant a disability, it was protected under 74

See, Steven Locke, at 122-23 (US courts appear to have developed an evidentiary standard requiring general unemployability in order to proceed with a claim of discrimination under the ADA). 75 Zaryski v. Loftsgard, (1993), 95 C.L.L.C. P 230-008 (Sask BOI); see also, Theo Opie, Lauren Bates, Canadian Master Labour Guide, 12th Edition (North York: CCH Canadian Ltd, 1998) at 467.

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the Code. Further, it was acknowledged that it might be difficult to find a reasonable accommodation under such circumstances. Nonetheless, the tribunal thought that the manager should have given some thought to or made some effort to identify possible accommodations, and thus found the defendant employer liable for discrimination and awarded modest monetary damages. Under the ADA, this plaintiff would not be found to be substantially limited and the case would be immediately dismissed. An analogous set of events occurred in Horton v. Regional Municipality of Niagara.76 A health care aid was employed for a two month probationary period and then terminated allegedly due to her work performance and absenteeism. A complaint was brought under the OHRC claiming discrimination on the basis of physical disability, specifically obesity and hypertension. The Board of Inquiry stated that, in order to have a finding of disability for obesity, it was necessary to have evidence showing that the obesity in question was because of bodily injury, birth defect or illness. The Board said that no such evidence was presented in this case, so it declined to rule on whether, in this instance, obesity was a disability. Nonetheless, the tribunal said that hypertension was an illness and, therefore, a handicap within the meaning of the Ontario Human Rights Code. The defendant was held liable for basing its refusal to employ, at least in part, on the plaintiff's hypertension. She was awarded damages for lost wages and humiliation. Under the ADA it is very unlikely that hypertension would rise to the level necessary to be substantially limiting and, even if it did, the complainant would then be deemed not qualified. Consider further the following Canadian case by comparison. In Boehm v. National System of Baking Limited,77 an employee at a bakery had a learning disability. He did his job and worked well with others. But, his difficulties and different mannerisms were evident to others. A new production manger was assigned to his work area. The manager focussed on him; he was subjected to greater supervision and criticism than others. The manager made remarks about his intelligence. The production manager was told that his conduct was upsetting to the plaintiff. Nonetheless, the production manager continued. The employee left work and did not return. The bakery offered him his job back, but he still did not return. The resulting harassment claim on the basis of 76

(1988), 9 C.H.R.R. D/4611. Boehm v. National System of Baking Limited, 87 C.L.L.C. p 17,013 (Ont.HRC).

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disability was won because the manager engaged in "vexatious comment and conduct because of the complainant's mental disability."78 In the United States, it is very unlikely that Boehm would have a disability qualified for protection under the ADA. First, he would have to prove by expert testimony that he had a learning disability. Then he would have to show that his disability substantially limited a major life activity. This would not be likely. He had proven that he could work at the bakery. It would seem that no major life activity was affected. Moreover, his learning problem was not so substantial. After all, he was able to learn to do the job, and it appears that he did so without any accommodations. In the United States, the testimony must demonstrate a significant learning disability and medical documentation showing the same, to show that he was substantially limited in a major life activity. The common theme throughout these cases should be evident. Canadian courts and tribunals use a broad definition of disability and focus on whether a reasonable accommodation was offered. By contrast, in the United States, even if the plaintiff is able to show the disability exists, the plaintiff still has the burden of showing that the disability "substantially limits a major life activity." This encourages defendants to engage in a process of trivializing the extent of the plaintiff's disability so as to show that it does not substantially limit any major life activity. If plaintiffs establish that they are indeed substantially limited, they must also show that they are not so substantially limited that they are no longer "otherwise qualified" for the job. The paradox created by this substantially limited clause in the ADA is that "employers are free to discriminate against not impaired enough plaintiffs who could be readily accommodated to perform their jobs."79 I believe the broader Canadian approach is more reasonable. It is less focused on the degree of impairment because any non-trivial degree of impairment is sufficient to warrant protective coverage. The US approach is overly fearful of extending unwarranted privileges to allegedly undeserving persons.80 This concern has produced a jurisprudence that does not protect the rights of 78

Ibid. Cheryl Anderson, “Deserving Disabilities.” at 87-88. 80 For more on the concern of extending unfair advantage to those with disabilities and other similar arguments for restricting the application of the ADA, see, Michelle Travis, “Leveling the Playing Field or Stacking the Deck? The “Unfair Advantage” Critique of Perceived Disability Claims” (2000) 78 N.C.L. Rev. 901. 79

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people with disabilities. It is, indeed, a paradox. The ADA is a remedial statute that fails to remedy. The degree of this failure is further demonstrated in the subsequent subsections of this chapter.

Mitigation Measures and Palliative Devices The substantial limitation paradox described above is further complicated in the United States by the treatment assigned to mitigation measures and palliative or remedial devices. As a result, the breadth of protections for those with disabilities has frequently been narrowed quite severely by recent judicial holdings. Where mitigation measures, devices and techniques are designed to assist those with disabilities and reduce the effects of an impairment, individuals with disabilities often do not qualify for protection under the ADA. The protection question turns on the whether the disabled person has a "substantial limitation of a major life activity" as discussed in the previous section. If the person is found to not have a "substantial limitation", then they are not a person or "individual with a disability" and thus, are not qualified for legal protection. An expansive definition of the term "substantial limitation" would evaluate the degree of impairment before the application of palliative or mitigation devices. A more narrow interpretation evaluates the impact of a disability upon functioning after the benefit of mitigation devices or remedial actions.81 The ADA itself provides no direction with respect to the question of whether degree of impairment should be evaluated before or after the employment of mitigation measures. Nevertheless, shortly after passage of the ADA, the Equal Employment Opportunity Commission (EEOC) published interpretive guidance on this question which follows the more liberal interpretation. The guidance stated that the "determination of whether an individual is substantially limited in a major life activity must 81

See, Erica Worth Harris, “Controlled Impairments Under the Americans with Disabilities Act: A Search for the Meaning of Disability” (1998) 73 Wash L.Rev. 575 (discussing the controlled versus non-controlled views of what disabilities should be protected and demonstrating difficulties with the inclusion of mitigation within the assessment of impairment); Timothy Stewart Bland, “The Determination of Disability Under the ADA: Should Mitigating Measures Such as Medications be Considered?” (1999) 35 Idaho L.Rev. 265 (discussing both sides of the mitigation measures issue and arguing that mitigation measures should not be included in the assessment of disability). 111

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be made on a case by case basis, without regard to mitigation measures such as medicines, or assistive or prosthetic devices."82 It is of some importance to note that Congress specifically gave the EEOC authority to prepare interpretive guidance and the courts often refer to these regulations in their holdings. Furthermore, the EEOC applied the legislative history of the ADA as well as Congressional intent in developing this interpretive guidance.83 Nonetheless, a number of courts have also felt free to reject EEOC guidance and its broader approach to assessing protective coverage.84 As a result, a variety of decisions produced a split of opinion in the lower courts that had to be addressed by the Supreme Court.85 82

29 C.F.R. pt 1630 app s. 1630.2(j) (1996) (EEOC interpretive guidance on the issue of whether the degree of impairment should be measured before or after palliative measures are used by an individual to lessen the impact of the disability). 83 See Amicus Brief, United States Department of Justice, “Amicus Curiae Supporting Petitioners in Sutton v. United Air Lines,” (No.97-1943), Amicus Brief at 1999 WL 95496 at 7 (articulating the legislative history of the ADA as well as the structure of the statute as a basis for an expansive interpretation of mitigating measures); see Sutton v. United Air Lines, 119 S.Ct. 2199 (1999); see also, Issac S. Greaney, “Note, ‘The Practical Impossibility of Considering the Effect of Mitigating Measures Under the Americans with Disabilities Act of 1990,’” (1990) 26 Fordham Urban L.J. 1267, 1273-74 (an early discussion of “correctable” disability issues at the time the ADA was passed by Congress; discussing the intent of Congress in passing the ADA and emphasizing that corrections should not be used in the assessment of who is covered by the statute); see also, Sutton, 119 S.Ct. at 2154-56 (Stevens J. dissenting opinion arguing against the inclusion of mitigation measures within the assessment of disability). 84 Ruth Colker, “Hypercapitalism: Affirmative Protections for People with Disabilities, Illness, and Parenting Responsibilities under United States Law” (1997) 9 Yale J.L. & Feminism 213, 231,232 (examples given where the courts have ignored the original EEOC guidance and included mitigation measures in the assessment of disability; the author strongly argues against the inclusion of mitigation measures within the evaluation of the level of impairment). 85 See, Lauren J. McGarity, “Disabling Corrections and Correctable Disabilities: Why Side Effects Might Be The Saving Grace of Sutton,” (2000) 109 Yale L.J. 1161, 1174 (hereafter “McGarity, Disabling Corrections”) (describing the split in the lower courts prior to Sutton over the issue of including an analysis of mitigation measures within the definition of disability; the author identifies which Circuits include and exclude corrections and cites to several cases on both sides of the issue).

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During the summer of 1999, the United States Supreme Court issued a trilogy of ADA decisions which further undermined the remedial goals of the ADA and considerably enhanced the "substantially limited" paradox by redefining the substantially limited analysis.86 The result has been a heightened focus on biomedical limitations and thus a need by the disabled to engage in the kind of functional limitations analysis that fosters a continued stereotyping of disabilities. In the three cases, the Supreme Court specifically addressed the issue of whether the assessment of the impairment should include palliative measures intended to lessen the impact of the disability. In each of its holdings, the Supreme Court firmly rejected the broader vision described by the pre-trilogy EEOC guidance.87

86 Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999) (myopic pilots mitigated by eyeglasses); Murphy v. U.P.S., 119 S.Ct. 2133 (1999) (medication mitigates disability such as diabetes); Albertsons Inc. v. Kirkingburg, 119 S. Ct. 2162 (1999) (monocular vision impaired persons need to prove disability on caseby case basis to show they are substantially limited, as in loss of depth perception or loss of visual field; individual adjustments by a person’s brain to compensate for the loss of depth perception are a mitigation measure). 87 The EEOC has since issued new regulations that reflect the recent Supreme Court directive, the consideration of mitigation measures within the substantially limited assessment of disability. 29 C.F.R. pt. 1630.2, app. §1630.2(j) (1999) (curiously, within the new regulations, internal inconsistencies have compounded and much more obvious; the guidance now gives an example of a person with a vision impairment who cannot fly a commercial airliner, but who can co-pilot the airliner or fly other planes, and the same old example of a baseball player with a bad elbow and can no longer throw. These examples should not be related to the “substantially limited” nature of ones disability. They are better connected to the assessment of qualifications for the position in question. If the job can’t be done, then these persons are unable to do the essential job functions of the job in question, it is not because their disability is insufficiently substantially limiting. In fact, the claim of vision impaired pilots seeking commercial airline employment should properly be argued on the basis of the restrictive rule being a “business necessity” for the airline. In the alternative, vision impairments mitigated by eyeglasses could be statutorily or judicially excluded as a disability. It is also noteworthy and troubling that each of the EEOC examples seems to in conflict with another directive, the single job rule of the EEOC, a rule used so effectively by the courts to deny coverage on the basis that one is not substantially limited from a class of jobs). 113

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In Sutton v. United Airlines,88 twin sisters with severe myopia, mitigated by corrective lenses, were also very experienced pilots. They were denied employment by United Airlines based on a company requirement that global airline pilots have uncorrected vision of 20/100 or better. The sisters' uncorrected vision was worse than 20/200. With glasses, their visual acuity was 20/20 or better. In this case, the Supreme Court resolved a split in the lower federal courts over the issue of whether mitigating measures, such as medication, palliative devices, and other means of reducing the disabling condition, are to be considered in determining if one is "disabled" within the meaning of the ADA. The Court answered in the affirmative and rejected the EEOC interpretive guidance that said the assessment of disability must be made without regard to the use of any mitigation measures. The Court stated that all mitigation measures must be considered in the determination of disability.89 The Court said that by failing to consider the mitigation of vision difficulties by eyeglasses, all persons with the same impairment would be considered disabled. For example, all persons with epilepsy would be considered disabled, even those on medication that prevents them from being substantially limited in a major life activity. The Court reasoned that the EEOC position would expand the number of disabled persons far beyond what Congress intended and beyond the 43 million persons stated in the introductory remarks to the legislation itself.90 The Court also stated that conducting an individualized inquiry into the impairment in its uncorrected state would be difficult, speculative and hypothetical.91 The majority reasoned that an uncorrected assessment would inhibit consideration of negative side effects from the use of mitigating measures.92 Therefore, the Court concluded that the plaintiffs were not

88

Sutton, 2139 S.Ct. at 2141. Ibid at 2142. 90 Ibid at 2147-49. 91 Ibid (the court noted that the term “substantially limits” as stated in the statute, was in the present tense, and so concluded that the disability must be a present one; the court argued that mitigated disabilities were not present disabilities and thus, should not be protected by the ADA; but the court did leave the door open for examining the negative side effects on major life activities produced by the use of mitigating measures). 92 Ibid at 2147 (the dissent doubted the majority’s deduction that consideration of disabilities in their unmitigated state would preclude consideration of the 89

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substantially limited in the major life activity of working and, therefore, were not disabled within the meaning of the ADA.93 The court also rejected the alternative grounds for discrimination claims on the basis of being "regarded as" disabled. The plaintiffs argued United Airlines regarded them as substantially limited in the major life activity of working. The court said this was not so because United Airlines did not preclude them from more than "one type of job, specialized job, or particular job choice."94 The sisters were not precluded from a broad range of jobs. They could apply for work at United as pilot instructors or local pilots. Thus, United did not regard them as disabled. In the second of the Supreme Court trilogy of mitigation cases, Murphy v. United Parcel Services,95 the respondent employer hired the petitioner as a mechanic, a position that sometimes required driving commercial vehicles. A Department of Transportation requirement specified a blood pressure level that does not exceed certain limits. However, despite the petitioner's high blood pressure level, he was erroneously certified by the DOT through no fault of his own. Two years later, after the employer discovered the error, the petitioner sought a waiver from the DOT. The employer then fired the petitioner. After the firing, the petitioner's waiver from the DOT was granted. The District Court granted the employer summary judgment and the Tenth Circuit Court affirmed the lower court decision.96 The United States Supreme Court, citing Sutton v. United Airlines, held that the determination of liability for discriminatory conduct depended on whether effects of disabling corrections; the dissent further argued that it would be a rare instance when side effects of treatments would not in of themselves be disabling; “it might fairly be said that ... side effects are symptomatic of a disability because side effects and a physical impairment may flow from the same underlying condition.”) Ibid 2159 (Stevens, J., dissenting). 93 Ibid at 2147; see also, Sutton, 130 F.3d 893, 902. (10 Cir. 1997) (lower court in the Sutton case argued that protecting those with correctable impairments in a fashion consistent with the original EEOC position, would debase the ADA, thereby allowing the extension of protections to those with relatively minor disabilities). 94 Ibid; see also, Sutton, 130 F.3d. at 895 (lower court arguing that because a correction is correctable, the plaintiffs have no grounds for a “regarded as” claim as they are not actually regarded as having disabilities for an entire broad category of jobs). 95 Murphy, 119 S.Ct. at 2134, 2135. 96 Ibid. 115

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the impairment substantially limited a major life activity, which in turn depended on whether the impairment could be mitigated.97 The court said that "substantially limited" meant "significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities." In Murphy, the petitioner was a mechanic and the court determined that he was generally employable as a mechanic. Therefore, discrimination in one particular mechanic's job, where driving was part of the job, did not deny him employment in a class of jobs. Therefore, because the petitioner failed to show that he was denied employment in a class of jobs, he was found to be "not disabled" within the meaning of the ADA. Moreover, the Court found that when one is claiming a disability under the ADA, the functional limitation should be assessed by taking into account any mitigating or corrective measures as per the analysis given in Sutton. The Supreme Court noted that the petitioner's own doctor testified that, when medicated, the petitioner functions normally in everyday activities. Thus, the petitioner is not "substantially limited" in the major life activity of working and not entitled to the protections given to the disabled under the ADA.98 In Albertsons v. Kirkingburg, the third decision in the trilogy of Supreme Court cases on correctable disabilities, the petitioner employee worked as a commercial truck driver.99 He had a condition referred to as amblyopia, an uncorrectable condition that left him with limited vision in one eye. In spite of this disability, a doctor certified that he met the Department of Transportation standards for work as a commercial truck driver. Two years later, the petitioner's vision was reassessed and found to be inadequate as per the DOT standards.100 As was the case in Murphy, a waiver was available from the DOT under certain conditions. Nonetheless, the employer fired the petitioner. The petitioner then sought a waiver and was granted one by the DOT. However, his former employer refused to re-hire him. The lower court said that it did not need to take into account the monocular individual's ability to compensate for the impairment.101 The 97

Ibid. Ibid at 2135, 2138. 99 Albertsons 119 S.Ct. at 2165. 100 Ibid at 2166. 101 Ibid at 2164, 2169 (mitigation measures include one’s own body systems capability to compensate; monocular individuals may meet ADA requirements, 98

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United States Supreme Court disagreed. Apparently the petitioner did not use palliative devices, but over time his brain had developed mechanisms for coping with the impairment and made adjustments for the way in which he sensed depth and peripheral objects. The Supreme Court said that his ability to compensate for his disability had to be taken into account. Thus, taking into account his monocularity and the fact that varying degrees of restriction can be associated with the condition, together with his learned capacity to adjust for his vision difficulties, the Supreme Court found that the petitioner was not substantially limited with respect to any major life activity and, therefore, not disabled within the meaning of the ADA. The Court also added that just because the DOT was willing to waive standards in some individual cases, the employer should not be forced to participate in the DOT wavier "experiment." The assessment of substantial limitation again included the use of palliative measures, and in this case, the assessment also included the individual's own learned capability to make adjustments for his limitations.102 Consequently, if those with disabilities, even by arduous efforts, are able to overcome some of the impacts of their disability with various coping techniques, they may then be deemed not substantially limited in a major life activity, adjudged not disabled and not covered by the ADA. What legal result is likely to follow from these three cases? The initial results have been documented in numerous commentaries and many analysts express alarm over what they regard as a severe restriction on the number of persons protected by the ADA.103 Others acknowledge a but they still have to show that their individual vision loss is substantially limited, taking into account the body’s capability to compensate). 102 Ibid. 103 Arlene Mayerson “Defining Disability in the Aftermath of Sutton: Where Do We Go From Here” (2000) 27-WTR Hum. Rts. 12 (saying that the Sutton trilogy of cases restricts ADA coverage, but also notes that the use of mitigating measures does not necessarily eliminate ADA protections); Linda Hamilton Krieger, “Foreward – Backlash Against the ADA: Interdisciplinary Perspectives and Implications for Social Justice Strategies” (2000) 21 Berkeley J. Emp. & Lab. L. 1 (documenting a trend from the inception of the ADA through 2000 of increasing resistence by the courts to those with disabilities); Wendy Parmet, “Plain Meaning and Mitigating Measures: Judicial Interpretations of the Meaning of Disability” (2000) 21 Berkeley J. Emp. & Lab.L. 53 (expressing alarm over the Sutton trilogy of cases); Diane Kimberlin, Linda Ottinger Headley, “ADA Overview and Update: What Has the Supreme Court Done to Disability Law?” (2000) 19 117

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narrowing in the definition of disability, but find a restricted approach desirable so as to ensure that the ADA only protects those with "real" disabilities.104 The EEOC has tried to put a positive spin on the Supreme Court decisions by saying that the side effects of mitigation measures may also substantially limit a major life activity.105 One author has tried to explain this side effects outlook further. Lauren McGarity has argued that the side effects analysis might be the saving grace of Sutton.106 Yet, she also concedes that the initial wave of post Sutton litigation has produced a sweep of results that undermines the protection of those with disabilities.107 McGarity contends that a complete understanding of the definition of disability as per Sutton can be "carefully tailored to eliminate Revlitig 579, 586 (discussing a broad range of restrictions on the definition of disability including mitigating measures); American Bar Assoc., “Employment: Disability Defined” (Jan/Feb2000) 24 Mental & Physical Disability L. Rep. 74 (documenting a number of Title I cases that involve the new mitigating measures rule including some where back injury and hepatitis C remain disabilities covered by the ADA, but also providing a long list of cases where the disability in question no longer substantially limits due to the corrective measures used); Luther Sutter, “The Americans with Disabilities Act of 1990: A Road Too Narrow” (2000) 22 U.Ark. Little Rock L. Rev. 161 (arguing that the decision in Sutton goes against the remedial purpose of the ADA). 104 Peter Marksteiner, “Supreme Court Limits Coverage of the Americans with Disabilites Act” (2000) 74 - Feb Fla. B. J. 32 (acknowledging that the new mitigation rule narrows the definition of disability law but saying that this is acceptable because these persons are often successful, not severely disadvantaged and not politically powerless, and thus are not deserving of protection) ibid at 38. 105 See, Timothy Bland, “EEOC Issues New Disability Guidance” (2000) 47Apr Fedrlaw 20, 21 (EEOC new instructions struggle to put the best spin possible on the three Supreme Court decisions in Sutton, Murphy, and Albertsons by emphasizing that the negative effects of mitigating measures can still be used to show a substantial limitation of a major life activity; for example, if a condition is mitigated by medication, the side effects of the medication, such as severe nausea, may substantially limit a major life activity). 106 McGarity, Correctable Disablities, at 1161, 1162 (the writer calls for a generous interpretation of the disabling corrections assessment so as to serve the larger goals of the ADA, to encourage persons with disabilities to participate in the workforce and the economy) Ibid. at 1174, 1190; (in my view, given the tendency of the courts to narrow the reach of the statute wherever possible, a change to more expansive interpretations is very unlikely). 107 Ibid. at 1173, note 74.

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only those plaintiffs that are manifestly beyond the class of citizens with disabilities that Congress meant to protect."108 She says that "by targeting the impact of correctable disabilities decisions in this manner ... [Sutton] ... will clarify, not destroy, the protections of the ADA."109 She fails to articulate how this might be done, especially in view of the already very restrictive interpretations of disability in use prior to this new Supreme Court directive. McGarity's saving grace is no grace at all. It is analogous to a life preserver being tossed at the Titanic. It may save a few souls or, in the instance of disabilities, assist a few plaintiffs, but most will go down with the ship. The impact on individuals with disabilities will likely be so severe as to justify a reworking of the statute by Congress. McGarity acknowledges the Sutton trilogy of cases might lead to the failure of the ADA's Title 1 workplace protections for individuals with disabilities.110 She also correctly warns that a narrowing of the statute is inconsistent with the pro-mitigation and pro-work policy goals of the ADA.111 But, she fails to recognize that the ADA's remedial purpose was already in grave doubt even prior to the Sutton trilogy of decisions. These cases may clarify, but only at the cost of further restrictions on the scope of coverage. The negative side effects argument for correctable disabilities is also troubling because individuals with impairments are not protected from discrimination because they have a disability. Rather, they may be protected because of the side effects of their medication, or the negative effects of other mitigation efforts. For example, under this current jurisprudence, a diabetic with an impairment controlled by medication will be found not substantially limited and therefore, not protected by the ADA. But, he or she might be protected if they can show that mitigation efforts substantially affect a major life activity such as eating.112 This reasoning is bizarre. People with disabilities should be protected from employment discrimination because they have a disability, not because of the disabling effects of corrective measures. 108

Ibid. at 1173. Ibid. 110 Ibid. at 1197. 111 Ibid. 112 Diabetics often have to follow a strict dietary regime. Under the negative side effects analysis, if an individual’s dietary schedule substantially limits a major life activity, then one might argue that they are substantially limited in the major life activity of eating or some other activity that may be impacted by such a dietary regime. 109

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Notwithstanding any of the above explanations, it seems clear that there is now in place a very severe restriction on those who qualify for protection from discrimination under the ADA. This restriction is superimposed over an already very restricted definition of disability under the "substantially limits" clause of the ADA. In all likelihood, a narrow definition of disability will continue to be applied to questions of disablement, providing very little, protection to individuals with disabilities.113 Shortly after the Sutton set of decisions by the Supreme Court, a federal district court in Texas applied the newly defined precedent in a case involving a person with epilepsy.114 The court determined that they were not protected from employment discrimination under the ADA. The court looked to the decisions in Sutton, Murphy and Albertsons for guidance on the issue of mitigation measures and the newly revised definition of disability. The court found that when an individual can mitigate the effects of epilepsy through medication and other methods, then that individual is no longer substantially limited in a major life activity. The court noted that, with medication, the plaintiff suffered only "light seizures once a week."115 Consequently, the court concluded that the plaintiff did not have a disability within the meaning of the ADA and his employer should not be liable for terminating his employment because of his epilepsy.116 113

Samuel Issacharoff, Justin Nelson, “Discrimination with a Difference: Can Employment Discrimination Law Accommodate The Americans with Disabilities Act?” (2001) 79 N.C.L. Rev. 307 (arguing that the ADA is a poorly crafted statute and that Congress needs to address head-on the wealth-redistributive aspects of the ADA, what will constitute a reasonable accommodation, and what constitutes undue hardship; this is necessary because several recent court decisions have blocked the majority of ADA claims). 114 Todd v. Academy Corp., No. H-98-1620, 1999 U.S. Dist. LEXIS 12133 (S.D. Tex. Aug. 5, 1999). 115 Ibid. 116 After Sutton and its two companion cases, the lower courts quickly followed the Supreme Court reasoning and began to narrow the coverage of the ADA; see, Spades v. City of Walnut Ridge, 1999 U.S. App. LEXIS 17894 (8th Cir. 1999) (plaintiff with depression controlled through medication and counselling found not disabled); Hurley v. Modern Continental Construction Co. 1999 U.S. Dist. LEXIS 11264 (D. Mass 1999) (plaintiff with heart problem, and resulting dizziness and loss of consciousness, was able to mitigate the condition with a cardiac defibrillator; upon medical advice sought to reduce stress by requesting another

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Another case where the court applied the same reasoning involved a plaintiff who suffered a head injury when brutally attacked by a patient. It happened while she was working in a facility caring for the mentally ill.117 She recovered, but suffered post-operative headaches, depression and cognitive problems involving memory and concentration. She tried to return to work and experienced some difficulties associated with her illness. Her employment was shortly thereafter terminated. She sought to return to work with accommodations. The principal accommodation requested was assignment to work schedules that did not involve cottage 606. This was where the most aggressive patients were housed and where she suffered her injury. In its analysis, the court followed the Sutton progeny of cases. The court noted that she used various techniques to cope with her cognitive problems. Accordingly, the court found that she was not substantially limited in her ability to learn. The court also analysed Shepler's limitations with respect to the major life activity of working and found she was not substantially limited. The court reasoned that she could only show that her condition made it difficult to perform her particular job, not other jobs within the same class of work. Moreover, the court noted that "Shepler and her doctors stated repeatedly that Shepler could return to work so long as she was not located in Cottage 606. This very specific limitation on her ability to work does not establish a substantial limitation on her ability to work. Therefore, the court determined her disability is not protected by the ADA. Similarly, she was not "regarded as" substantially limited in the major life activity of working, [because] one must be regarded as precluded from more than one particular job" and her mitigating efforts placed her outside the coverage of the ADA.118 position with the employer, but, he was terminated; court held he had not demonstrated he was substantially limited and therefore he was not disabled; he had not shown an inability to work in a “broad range of jobs in various classes.”); Taylor v. Phoenixville School District, 1999 LEXIS 21489 (3rd Cir. 1999) (principal’s secretary with bipolar disorder sought accommodations; she was terminated and court said she was not disabled because condition was controllable by lithium (currently under appeal). 117 Shepler v. Northwest Ohio Developmental Center, 205 F.3d 1341 (6th Cir. Ohio, 2000), 2000 WL 191496. 118 Ibid at 2000 WL 191496 5; court citing Sutton v. United Airlines, Inc. (1999) 527 U.S. 471, 119 S.Ct. 2139, 2151 (“significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. 121

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The difficulty with this reasoning is that many employees with disabilities, such as epilepsy, diabetes, cancer, heart conditions, mental disabilities and so on, who also take medication, and use palliative measures, coping strategies and other assistive devices, will almost always be precluded from challenging adverse actions by employers. A person on medication for diabetes will not be covered by the ADA. He or she will be excluded from the definition of disability because the mediation results in that person not being substantially limited in the major life activity of working. However, if a diabetic is on medication, but the best medication is not very effective, or it does not control the condition, then he or she will be found substantially limited in a major life activity. They will then qualify for protection from discrimination under the ADA. The problem with this kind of legal analysis is rather significant. If the medication and other palliative measures do not control the condition, the disabled person will often be unable to do the essential functions of the job. In other words, without medication they will not be "otherwise qualified" for the sought after employment and they will be again excluded from the protections offered by the ADA. With medication, they are not "substantially limited" and so they are also not covered by the ADA. An employer is then free to discriminate at will. Similarly, consider someone with a physical disability such as an amputation of a leg. Scientific advances have developed prostheses that are very effective. These instruments are continually being improved and will, no doubt, be even more effective in the future. If someone has a prosthesis and is able to use it effectively, they will most likely be found not substantially limited in a major life activity.119 If they are not able to The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”) Ibid. quoting 29 C.F.R. § 1630.2(j)(3)(i)); (the court also covered the rarely used “record of impairment” prong of the ADA by stating that Shepler could not have a record of impairment because she was not substantially limited and thus, could have no record of impairment) ibid at 5. 119 For further information on this issue, including a specific discussion on the loss of limbs see Justice Steven’s dissenting opinion in Sutton at 2149. According to the majority position, even if one mitigates the loss of a limb by a remedial device, they still have to show that they are substantially limited in a major life activity (such as walking). Ibid at 2142. Some courts have looked at the difficulty (or pain) in walking and considered how far a person can walk as an indicator of the substantiality of the disability in comparison to the average person. The analysis used by US courts is very troubling because it ignores the significant

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use their prosthesis well, they may be substantially limited in a major life activity, but they may be not "otherwise qualified." This same reasoning also applies to people with mental disabilities and learning disabilities. Consider an employee with a mental illness that is mitigated by drugs that control temperament. Under this scenario, the employee will not be protected by the ADA. If the employee stops taking the required medication, they will be substantially limited and may be covered by the ADA. But, by refraining from taking the required medication they run the risk that their conduct in the workplace will cause them to be classed as not "otherwise qualified" for protection under the ADA.120 These recent United States Supreme Court holdings constitute an attack on the disabled. The decisions dismember the ADA because employers will be able to disqualify job applicants on the basis of their disabilities and the victims of discrimination will have no legal recourse. If a mental disability is mitigated, and average functioning results, there is no legal claim if subject to discrimination. Yet, they remain disabled and remain stigmatized by their disabilities. The seriousness of this grievance is multiplied because cases are dismissed and the question of reasonable accommodations is never reached. Individuals with disabilities are turned away as victims of disability discrimination without any consideration of

determination that many with disabilities use as part of their effort to overcome (or mitigate) their difficulties. In 1980, Terry Fox ran 5,300 km on one leg of flesh and one leg of plastic and steel, running from St. John’s, Newfoundland to Thunder Bay, Ontario, before succumbing to spreading cancer. His accomplishment was far beyond what the average person could do. Similarly, individuals at the para olympics use a variety of remedial devices that permit extraordinary achievements. Should the nature of their disabilities be evaluated after the benefit of remedial devices? According to US Supreme Court doctrine, these persons might not be covered by the ADA. The Court’s thinking produces unsatisfactory results because it permits discrimination against those with disabilities. 120 These scenarios and resulting questions create a very confusing set of possibilities. United States does not have a public health care system. Many people do not have health insurance and many others have deficient insurance. If a disabled job applicant cannot afford the needed mitigating treatment for his or her disability, are they then substantially limited and covered by the ADA? The Supreme Court’s analysis of disability is indeed very curious. Perhaps the Court might say that if mitigation measures can reasonably mitigate the disability, then whether or not mitigation is used, the disabled person is not substantially limited and thus not covered by the ADA. 123

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whether reasonable accommodations will allow the successful undertaking of essential job functions. The Supreme Court has cut off disability discrimination claims "at the knees, and by doing so ... the Justices have created a default rule that warmly embraces the status quo."121 The "regarded as" prong of the ADA should be able to address some of these difficulties. However, the courts have also narrowed the "regarded as" analysis in a way that severely restricts its use. One cannot be regarded as unable to perform just one particular job; one must be precluded from a broad class of jobs to qualify for protection under the "regarded as" option of ADA.122 This restrictive interpretation will preclude many plaintiffs from claiming discrimination, unless they know about this restriction in the law, and specifically tailor their applications to employers in a way that sidesteps this problem and meets the "broad class of jobs" requirement.123 Consequently, the ADA can and often does have the effect of endorsing employer discrimination decisions made on the basis of disability. In the United States, carefully tailored legal arguments will continue to permit employers to treat disabled employees and job applicants in a discriminatory fashion.

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Aviam Soifer, “The Disability Term: Dignity, Default, and Negative Capability” (2000) 47 UCLA L. Rev. 1279, 1328 (much of Soifer’s argument echoes the concerns described herein about the impact of the Sutton mitigation rule upon disability discrimination claims; he points out that those with disabilities now must suffer the “direct personal indignity of exposing themselves to exquiste scrutiny before they can even begin to be heard” and even then their claims are often dismissed). Ibid. 122 See, Sutton, at 2147; see also, Murphy, at 2135: see also, Aviam Soifer, at 1309 (noting that in Murphy, the employer responded that it did not regard the petitioner “as substantially limited in the major life activity of working, but, rather, regards him as unqualified to work as a mechanic because he is unable to obtain a DOT health certification” even through he did obtain a waiver; Soifer sees this defense as a paradigmatic example of “slicing the salami extremely thin,” an argument bought by the court). Ibid. 123 One way around this problem for an individual with a disability might be to apply for several positions within a firm or government agency. By applying to several positions, the applicant might eliminate the devastating impact of the EEOC “one job” rule in the interpretive guidance. But, if only one job is advertized or only one job is available, tailoring an application process to avoid the harmful impacts of one job rule is impossible.

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Canadian human rights law approaches the question of mitigation measures in a very different way. In fact, the issue of whether remedial measures should be included within the assessment of whether an individual is protected by law has rarely been addressed by Canadian courts. This rarity is due in part to three factors. First, the broad definition given to the term disability by Canadian human rights legislation emphasizes the remedial nature of the protective coverage. Second, a number of the provincial human rights laws expressly state that the use of palliative and remedial measures should have no bearing on whether the disabled are protected by the statute. Third, in some provinces, the human rights legislation specifically identifies a number of impairments as covered disabilities including epilepsy and diabetes. In Ontario, the Human Rights Code clearly covers the insulindependent diabetic as this group is specifically identified in the human rights legislation as a protected class.124 It is also quite clear from the plain language of the law that the determination of whether one has a disability is made before the use of mitigating factors, not after. This is because reliance on mitigation measures is in itself evidence of the existence of a disability.125 As a result, the law in Ontario is interpreted by the courts in a way which is generally consistent with the broad definition of disability. If there are questions about coverage for a particular impairment, a court may decide to include the disability or look to federal statutes or the law in other provinces for guidance. For example, one arbitrator ascertained that a person with kleptomania would be covered by the statute in spite of its absence in the definition of disability.126 Another arbitrator determined that an alcoholic was covered by the Ontario Human Rights Code. The Ontario definition of disability did not specifically include alcoholics, so the arbitrator looked to the wording in the Canadian Human Rights Act for guidance on this issue and found language showing a direct intent to cover

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Ontario Human Rights Code, (1990) RSO Ch H.19 s 10(1)(a) (stating that code covers “those with diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a guide dog or on a wheelchair or other remedial device;” also noting that the coverage of protected disabilities is not limited to this list). 125 The US Supreme Court specifically rejects this view and states that reliance on assistive devices is not evidence of a disability. See, Sutton at 2141. 126 Re Canadian National Railway Co. & CAW, (1990) 43 L.A.C. (4th) 129. 125

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alcoholics.127 In these and other Canadian cases, the use of remedial devices, techniques, training courses, and other restorative efforts does not enter into the analysis of whether one has a disability protected by the relevant statute.128 The Quebec Charter of Human Rights specifically uses language in the text of the statute stating that a disability includes "a handicap or the use of any means to palliate a handicap."129 The plain language of the Quebec statute declares that the assessment of disability must be considered irrespective of the use of any mitigation measures by a disabled individual. Shortly after the trilogy of mitigation measures cases in the United States, the Supreme Court of Canada considered two companion cases on disability issues involving this very issue.130 The Court acknowledged the broad remedial purpose of disability protections as well as a need to provide a liberal interpretation of the definition of disability and found that such an interpretation was consistent with the constitutional standards set out in the Canadian Charter of Rights and Freedoms.131 In Montreal, the City refused to hire the respondent as a gardener-horticuluralist and the Communaute urbaine de Montreal (CUM) refused to hire an applicant for the position of police officer because, in both cases, pre-employment medical exams revealed an anomaly in the applicants' spinal columns. In Boisbriand, the City terminated a police officer's employment because he began to suffer from Crohn's disease. For each of the respondents, the 127

Re Babcock and Wilcox Industries Ltd. & USWA Loc. 2859, (1994) 42 L.A.C. (4th) 209. Bahlsen v. Canada (Minister of Transport), (1997) 1 F.C. 800 (a Federal 128 Court of Appeal held that a diabetic who was able to mitigate, control his hypoglycemic episodes before they became incapacitating, had a disability for the purposes of Section 15(1) of the Canadian Charter of Rights and Freedoms); see also, Cinq-Mars v. Transports Provost Inc., (1988) 9 C.H.R.R. D/4704 (human rights tribunal found that bilateral spondylolisis which can be controlled with medication and does not produce any functional limitations constitutes a disability under the Canadian Human Rights Act). 129 Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, s. 10. 130 Quebec ( Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City (hereafter Montreal); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), (May 3, 2000) 1 S.C.R. 665, 2000 SCC 27 (hereafter Boisbriand) (the SCC considered both the Monteal and Boisbriand cases in the same decision). 131 Ibid. para. 19.

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medical evidence demonstrated that each individual was able to carry out the normal responsibilities of the position in question and that they possessed no functional limitations.132 Each individual was able to successfully cope with their ailments and the conditions were considered asymptomatic.133 In the case of the officer with Crohn's disease, the condition required remedial action in the form of surgery following an intestinal attack.134 The complaints were filed with the Commission des droits de la personne et des droits de la jeunesse. In the holdings for the horticulturalist and the police officer with Crohn's disease, the Tribunal rejected the view that a handicap could be perceived subjectively. Judge Brossard held that the two complainants did not meet the definition of the term handicap because their conditions did not result in functional limitations. In the other case, the officer rejected for employment by the CUM, the tribunal under Judge Rivet found that the assessment of handicap could be objective or subjective and that the decision not hire was contrary to the Quebec Charter of Rights. Judge Brossard's decision was overturned by the Quebec Court of Appeals, and Judge Rivet's was pending in the Court of Appeals at the time the SCC considered this set of cases.135 In its analysis of the decisions of the tribunal and the Court of Appeals, the Supreme Court of Canada noted that a handicap may take the form of a loss, malformation, or abnormality of an organ, a structure or an anatomical, physiological, psychological or mental function. Such an anomaly is therefore an abnormal physical or mental condition, one which does not conform to a standard, a model or a general rule. The effect of this condition is to make an individual unique or conspicuous. [T]he cause of 132

Ibid at 666. Ibid at 671-73. 134 Ibid. (although the court did not address the issue of whether the officer’s condition was mitigated by medication, Crohn’s disease is commonly treated with a variety of medications designed to mitigate the affects of the condition; of course, the reason that mitigation was not an issue in this set of cases is precisely due to the fact that mitigation has no bearing on the outcome of the case. As note by the SCC in the case, the Quebec Charter of Rights specifically proscribes discrimination on the basis of “any means to palliate a handicap.”) Ibid at 674. 135 Ibid at 666 (Judge Rivet’s decision was pending in the Court of Appeals and the respondent, the officer rejected by the CUM, was given leave to intervene in the cases before the SCC). Ibid. 133

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Perspectives on Disability the anomaly which creates the handicap is immaterial. It may therefore have been present at birth (congenital cause) or arisen later, for example because of accident, illness or aging.136

Further, the court looked to the objectives of the Canadian Charter of Rights, noting that the Charter's objective "is to protect the dignity and equality rights of all human beings and, by logical extension, to eliminate discrimination."137 The court went on to quote Lepofsky stating that a "disability" within the meaning of s. 15 includes an actual or perceived "disability."138 The court concluded that a broad interpretation of the word "handicap", along with the contextual approach, which includes an analysis of the objectives of human rights legislation, the way in which the word "handicap" and other similar terms have been interpreted elsewhere in Canada, the legislative history, the intention of the legislature and the other provisions of the Charter, support a broad definition of the word "handicap", which does not necessitate the presence of functional limitations and which recognizes the subjective component of any discrimination based on this ground."139 The court further noted that, in its evaluation of a disability, decisions will have to consider the individual's biomedical condition, but, must also consider the employment circumstances as well as the broader purpose of ensuring opportunities for those with disabilities to take part in life equally with others. In addition, the court noted that "a 'handicap' also includes persons who have overcome all functional limitations and who are limited in their everyday activities only by prejudice or stereotypes that are associated with this ground."140 Consequently, the language of the 136

Ibid para 22. Ibid. 138 Ibid. para 49; see also, David Lepofsky. & Jerome Bickenback “Equality Rights and the Physically Handicapped,” in A.F. Bayefsky and E.M. Eberts, eds, Equality Rights and the Canadian Charter of Freedoms (1985), 323 at p. 346. 139 Ibid para 71. 140 Ibid. para 80. See also, British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), (1999) 3 S.C.R. 868, para 2. (quoted by the Supreme Court in the Boisbriand holding); see also, Eric Martel (Commission des driots de la personne du Quebec) v. City of Montreal, (1994) 24 137

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Supreme Court of Canada links the broad interpretation of disability to the Canadian Charter of Rights and its objectives. It firmly rejects an assessment of handicap that takes into account mitigating measures. Moreover, because its reasoning is Charter based, it applies to all of Canada, not just Quebec. Another recent Supreme Court of Canada decision, Granovsky v. Canada,141 also emphasized the need to employ a disability analysis that focuses not so much on the impairment or the functional limitations, but rather on the response to the circumstances. In this decision, the Supreme Court said that the concept of disability must therefore accommodate a multiplicity of impairments, both physical and mental, overlaid on a range of functional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called "disabled" individual may not be impaired or limited in any way at all.142 In Granovsky, the court further articulated that "where functional limitations do exist, they may be minor or immaterial."143 The Court commented on the problems of colour blindness and myopia and acknowledged that technology can eliminate these functional limitations, but corrections alone should not necessarily mean that they should fall outside protective coverage. The Supreme Court of Canada was critical of the United States Supreme Court decision in Sutton v. United Airlines.144

C.H.R.R. D/306 (in an earlier case similar to Boisbriand, the tribunal noted that abnormalities of the spine, as revealed by x-ray tests, are not related to performance as a firefighter and therefore, not a discriminatory basis for denying employment; apparently Montreal did not learn much from this failure to accommodate and consequently, the City was sued again in the Boisbriand set of cases). 141 Granovsky v. Canada (Minister of Employment and Immigration), (May 18, 2000) 1 S.C.R. 704, File No: 26615, 2000 S.C.C. 28 (hereafter Granovsky). 142 Ibid para 29. 143 Ibid para 36. 144 Ibid. (while the SCC does criticize the Sutton reasoning and argues against the establishment of a rule that includes the benefits of remedial efforts is the assessment of disability, it also does not entirely exclude the possibility that corrective measures might be taken into account, but does emphasize the need to use a flexible approach to the assessment of disability questions). 129

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The Canadian Supreme Court stated that the "notions of impairment and functional limitation ... are important considerations in disability analysis, [but, noted that] the primary focus is ... ultimately concerned with human rights and discriminatory treatment, not with the biomedical conditions."145 The Supreme Court of Canada has recognized that impairments mitigated by palliative measures should be included under the umbrella of protective legislation. The Court also supported a flexible approach to the assessment of disability rather than rigid rules, and emphasized the need to examine each individual case on its own merits.146 Of course, this more flexible approach does not mean that trivial disabilities are protected in Canada. Trivial disabilities are in fact not protected under either the ADA or Canadian human rights laws.147 However, in the United States, significant disabilities are also frequently excluded from protection under the ADA. The Supreme Court of Canada has also doubted whether it is possible to define the term handicap and has questioned the usefulness of any detailed definition of the term.148 Furthermore, the Court has stated that a detailed definition is not consistent with the objectives of human rights legislation or the legislative history of human rights in Canada.149

145

Ibid para 39. Montreal and Boisbriand at para 71 and 76. 147 Ibid. It is of some interest to note that the British Parliament specifically addressed the issue of mitigating vision problems with glasses in its disability legislation. While the statute protects people with disabilities, it also includes a clause excluding individuals with vision problems corrected by eyeglasses from the definition of disability. The United States Supreme Court could have considered making a similar rule in Sutton. Unfortunately, it did not do so and as a result Americans are faced with poorly thought out rules on mitigation measures. For the statutory exemption on eyeglasses, see, British Discrimination Act of 1995, Chapter 50, s. 6(3)(a); see also, Hammond Suddards, “Disability Discrimination, Legal Essentials” (London: IPD House, 2000) (providing a review of British disability discrimination law that suggests the law is in large part modelled on the ADA; on the issue of mitigation measures, holdings suggest a departure from the American approach articulated in the Sutton trilogy of cases as chronic fatigue syndrome, asthma, and epilepsy have been found to be disabilities) Ibid at 9. 148 Montreal and Boisbriand at para 72. 149 Ibid. 146

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The Supreme Court of Canada emphasized a need to move away from the traditional bio-medical functional assessment of disability and narrow or exhaustive definitions. The Court called for malleable guidelines instead of an exhaustive definition and suggested these guidelines be consistent with the socio political model proposed by Bickenback.150 The Court noted that this approach does not mean that the biomedical and functional considerations have no role in the assessment of handicap, but rather that assessments need to go beyond this one dimension and become multi-dimensional. The Supreme Court's position appears to be, in part, a response to the positions articulated by Ian McKenna's excellent critique of disability issues in Canada and the overused traditional biomedical model of disablement so often used in disability analysis.151 In summary, disability jurisprudence in Canada is evolving in a considerably different fashion than in the United States. It would be a serious error for Canadian jurisdictions to adopt an ADA type of model for use in Canadian provinces. This is particularly true with respect to the definition of disability.

Reasonable Accommodation This section compares the grounds that establish the basis for reasonable accommodation in the United States with those in Canada. Canada generally offers broad reasonable accommodation protection to persons with disabilities. The United States also offers similar protections, however, the reasonable accommodations offered in the US are often more restricted than is the case for accommodations offered in Canada. American courts often interpret the concept of reasonable accommodation is a miserly manner and accommodations must be relatively inconsequential, especially in terms of the total costs imposed on an employer. The prior sections identified salient differences between Canada and the United States in terms of their respective approaches to analysing the definition of disability and found these differences to be quite significant. Variations also exist with respect to the provision of accommodations, but, 150

Ibid. at para 77; see, Jerome Bickenbach, “Physical Disability and Social Policy,” (Toronto: University of Toronto Press, 1993). 151 Ian McKenna, “Legal Rights for Persons with Disabilities in Canada: Can the Impasse be Resolved?” (1997-98) 29 Ottawa L. Rev. 153. 131

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these differences are not nearly as marked as those identified in the prior discussion of definitional issues. Nonetheless, they are significant and worthy of discussion. The role of costs and benefits in reasonable accommodation, the extent of reasonable accommodations generally and the use of reassignment to another position as a reasonable accommodation are each used to illustrate some of the differences in the treatment given to the provision of accommodations in Canada and the United States.

The Role of Cost Benefit Analysis One of the more prominent and frequently cited cases in the United States on the level of effort necessary to meet the reasonable accommodation requirements of the ADA, 152 is the decision by Judge Posner153 in Vande Zande v. State of Wisconsin Department of Administration.154 In his holding, Judge Posner found the State had "bent over backwards" to accommodate the plaintiff.155 The plaintiff, Vande Zande, was a thirtyfive year old paraplegic woman who used a wheelchair. At times she was further impaired by the development of pressure ulcers that made it difficult for her to work in the office. She worked as a program assistant for the State of Wisconsin, a job which required preparing information for meetings, attending meetings, typing, filing, mailing and photocopying. The State's accommodations included the provision of adjustable furniture, improvements to facilitate bathroom access, paying for the cost of a cot

152

42 U.S.C. § 12111 (9) (reasonable accommodation may include: making existing facilities used by employees readily accessible to and usable by individuals with disabilities by job restructuring; part-time work or modified schedules; reassignment to another position; acquisition or modifications of equipment or devices; adjustment or modification of examinations; training materials, or policies; use of interpreters or readers. While many of these accommodations are specifically identified in the statute, defendants and courts have been often resistant to their application). 153 Judge Richard Posner is known for his views in legal theory and the role of economic efficiency in legal decision making. See generally, Richard Posner, “Economic Analysis of Law” (Boston: Little Brown, 3rd ed., 1986); see also, Richard Posner, “Economic Analysis of Law” (New York: Aspen Law and Business, 1998). 154 44 F.3d 538 (7th Cir. 1995). 155 Ibid at 545.

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and promises to provide design changes in a yet to be constructed office building. The State refused to make any additional accommodations. The basis of Ms. Vande Zande's complaint was that the State refused to accommodate her request to work full time at home for an eight week period while she recovered from a bout with pressure ulcers. She also requested a computer for use at home while she was recovering from her ulcers. The State denied her this accommodation and said that she would have to make up the difference for lost days and her full time schedule by subtracting from her sick leave. Ms. Vande Zande also sought accommodations in the office kitchenette. She had asked for a lowering of the kitchen sink to accommodate her wheelchair and to allow her to engage in normal kitchen activities in the office kitchenette.156 This request was also denied.157 The lowering of the kitchen sink would only cost $150. She was told that she could use the bathroom sink.158 Ms. Vande Zande claimed that having to use the bathroom sink for kitchen activities "stigmatized her as different and inferior."159 The Seventh Circuit Court of Appeals criticized the plaintiff's request for a computer at home saying that "most jobs in organizations ... involve team work ... rather than solitary unsupervised work."160 The court did not consider whether her duties could be structured in such a way that she could work at home on a temporary basis. But, the court recognized that the State and other large employers cannot use undue hardship as a defence in this kind of the case. However, the court also stated that, in meeting the reasonable accommodation obligations of the ADA, the employer "would not be required to expend enormous sums in order to bring about a trivial improvement in the life of a disabled employee."161 The court trivialized the benefit of accommodations to the plaintiff.

156

Ibid at 546. Ibid. Also, note, this office building was constructed prior to the passage of the ADA. If constructed after implementation of the ADA, the requested accommodation in the kitchenette would have been incorporated into the design of the new building as part of the compliance with the requirements of the ADA. 158 Ibid. 159 Ibid. 160 Ibid. at 544 (Posner’s decision to not favour working at home as a reasonable accommodation is consistent with other decisions where there is arguably some need to interact with others); see, Stubbs v. Marc Center, 950 F.Supp. 889 (C.D. Ill. 1997); Whillock v. Delta Air Lines, 63 F.3d 131 (2d Cir. 1995). 161 Ibid. at 542-43. 157

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Consequently, it appears that, if the employer regarded the sought after accommodations as trivial, and the court agrees, the employer is not liable. This is certainly a de minimis view of what makes a reasonable accommodation. The problem with this thinking is that accommodations trivial to the employer and the court, might actually be quite significant to the disabled employee. Each individual request for accommodations might seem trivial, such as the provision of a cot, building a ramp, the lowering of a sink, providing a shelf, the use of a computer at home, but the cumulative benefit might be very important to the performance of a disabled employee in the workplace.162 Nevertheless, in his decision Posner did not stop there. He continued to trivialize Vande Zande's request for accommodations stating that "we do not understand what she is complaining about."163 The court went on to ridicule her claim that she was "stigmatized" and felt inferior by having to use the bathroom for her kitchenette related activities, saying her use of the word "stigmatized" was "merely an epithet."164 There was no further analysis of the plaintiff's alleged stigmatization. The court seemed to be arguing that the employer did not have to lower the sink in the kitchenette for Vande Zande because they had already provided her with a wheelchair ramp and had provided a few other minor accommodations.165 Posner then proceeded to degrade the plaintiff 162

Lennard J. Davis, “Bending Over Backwards: Disability, Narcissism, and the Law,” (2000) 21 Berkeley J. Employment & Lab. L. 193, 202 (Davis discusses the Vande Zande holding with particular interest in the trivialization of the disability by Judge Posner. He notes that Posner acknowledges difficulty in defining reasonable accommodation. But at the same time he has no trouble labelling Vande Zande’s request for accommodations trivial. Lennard compares the disability request to the rights sought by African Americans during the civil rights era. He points to a Southern US judge’s analysis of a civil rights issues, arguing that lack of access to a drinking fountain for some when other fountain is nearby is a trivial request, and that being seated in one area of the bus and not another area is also trivial. Lennard states that attention to the trivial is essential because discrimination operates at the trivial level, and sometimes many trivial levels, all of which add up to a significant level of discrimination in the aggregate). 163 Vande Zande at 546 (it seems that accommodations imposing relatively minor additional costs, can be regarded as a trivial, if in the mind of the court, the accommodation only produces minor improvements in the life of the disabled person). 164 Ibid. 165 Posner appears to include the wheelchair ramp as an accommodation specifically provided to Vande Zande in his cost benefit calculus. This approach

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and further trivialize her requests. He suggested that the plaintiff might next be asking for massages and cappuccinos as reasonable accommodations. This comment about cappuccinos and massages clearly manifests the court's hostility toward the disabled plaintiff. Posner stated that it is "plain enough what [reasonable] accommodation means."166 He said that it means the employee must show that the accommodation is reasonable in the sense [that it is] ... both efficacious and proportional to cost. Even if this prima facie showing is made, the employer has an opportunity to prove that upon more careful consideration the costs are excessive in relation to either the benefits of accommodations or to the employer's financial survival or health.167 A cursory review of Posner's statement might suggest that it appears reasonable. However, when combined with the trivialization of the benefits of any one accommodation to the disabled, it severely mutes the prospect of obtaining reasonable accommodations. If the accommodation provides a trivial benefit to the employer (or employee), even if there is little cost involved, then the sought after accommodations may be denied. Benefit to the employee does not appear to be part of this evaluation. In his article on the trivialization of disabilities by the courts, Lennard Davis describes Posner's analysis as the "bending over backward" test.168 Costs and proportionality are used as inputs into the test in such a way that a bend backward need only be slight. Davis argues that the court sees reasonable accommodation as being based on "common sense." And what are the ingredients of common sense? It is cost and proportionality. is used tactfully by the judge, to heighten the appearance of great imposition, and wrongfully cause the plaintiff appear to be too demanding. It is true that the State of Wisconsin has more than 15 employees and is therefore subject to the reasonable accommodations mandates of Title 1 to remove architectural barriers for disabled employees, but it is also a place of public accommodation and is therefore subject to Title III requirements to remove architectural barriers to “the extent readily achieveable.” 28 C.F.R. § 36.304. Therefore, the wheelchair access should be regarded as a statutory obligation, not a reasonable accommodation. 166 Ibid at 542. 167 Ibid at 543. 168 Lennard Davis, at 204. 135

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Cost is put into a proportional equation with benefits to the employer, while the rights of the disabled are magically left out of the equation.169 It would seem reasonable to allow the plaintiff to work at home on a temporary basis while recovering from her ulcers. However, the court notes that "an employer is not required to allow disabled workers to work at home, where their productivity inevitably would be reduced."170 Davis argues that the largesse of the accommodating employer is placed in stark contrast with the trivializing, unproductive shirker using the ADA as a convenient shield to cover basic laziness.171 In a case that was brought under the Rehabilitation Act,172 the Second Circuit in Borkowski v. Valley Central School District,173 followed the reasoning used in Vande Zande. Judge Calabresi held that an accommodation is reasonable only if the costs are not clearly disproportionate to the benefits that it will produce.174 Calabresi goes on to say 169

Ibid. Vande Zande, at 545. 171 Lennard Davis, at 204; see also, Robert E. Rains, “Debating Disability Design: A Response” (2000) 47-May Fedrlaw 39, 50 (discussing Judge Meisburg’s proposals regarding legal policies for persons with disabilities and the prevalent attitude among judges which demonizes the disabled, trivializes their disabilities and stereotypes their attitude toward work; Meisburg is quoted, in reference to disability support payments in general, as saying it is “a ‘no brainer’ that if a [disabled] person ‘gives up’ and sits at home, watching TV, gaining weight, smoking 60 cigarettes a day, drinking a case of beer a day, smoking marijuana and using other illegal drugs ... they may always be disabled.” Ibid. at 50; it is very unfortunate that these kinds of stereotypical attitudes toward the disabled are actually quite common). 172 Although the Rehabilitation Act does not define reasonable accommodations, the regulations under that statute use language that is nearly identical to Section 101 (9) of the ADA. See also, 45 C.F.R. Section 84.12. As already noted elsewhere in this paper, the legislative history of the ADA indicates that the two statutes are to be interpreted in the same way. The ADA definition is open ended and so the courts have taken it upon themselves to define the limits of reasonable accommodation). 173 63 F.3d 131 (2d Cir. 1995). 174 Ibid. at 136. See also, Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995) (stating that reasonableness depends on the balancing of costs and benefits to both the employer and the employee, and that an accommodation is not unreasonable merely because it asks the employer to assume more than a de minimis cost. The court in this case did acknowledge that benefit to the employee 170

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the concept to reasonable accommodation permits the employer to expect the same level of performance from individuals with disabilities as it expects from the rest of the workforce ... But, the requirement of reasonable accommodation anticipates that it may cost more to obtain that level of performance from an employee with a disability than it would to obtain the same level of performance from a non-disabled employee ... and Congress fully expected that the duty of reasonable accommodation would require employers to assume more than a de minimis cost ... [and] it follows that an accommodation is not unreasonable simply because it would be more efficient, in the narrow sense of less costly for a given level of performance, to hire a nondisabled employee than a disabled one.175 According to Calabresi's decision in Borkowski, it is clear that a costbenefit analysis is central to the assessment of a reasonable accommodation. He states that both the plaintiff and the defendant must meet their reasonable accommodation burdens by offering a cost-benefit analysis of the proposed accommodations. He further states that while the plaintiff could meet her burden of production by identifying an accommodation that facially achieves a rough proportionality between costs and benefits, an employer seeking to meet its burden of persuasion on reasonable accommodation and undue hardship, must undertake an more refined analysis ... considering the industry to which the employer belongs as well as the individual characteristics of the particular defendant employer.176

is part of the analysis, however, the fact remains that the benefits to the employee arising from accommodation are largely ignored in legal analyses or are viewed as having little importance). 175 Borkowski, 63 F.3d at 136. 176 Ibid, at 139 (although a cost benefit analysis is central to the assessment of the reasonableness of an accommodation, a precise calculation, a quantified analysis not necessary; Posner’s and Calabresi’s cost / benefit analysis only calls for a broad generalized assessment of benefits and cost). 137

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Judge Calabresi also states that if an employer meets its burden of establishing, through cost benefit evidence, that the proposed accommodations are not reasonable, the employer will also have met its burden of establishing a defense of undue hardship.177 The language used by Calabresi in this disability case suggests that the reasonable accommodation requirement does require something more than a de minimis cost, but perhaps not much more. Posner's language insinuates a de minimis standard. This restricted interpretation is consistent with the Title VII holdings involving reasonable accommodation. The Supreme Court of the United States held in Trans World Airlines Inc., v. Hardison,178 under a Title VII claim, an accommodation creating more than a de-minimis cost constitutes an undue hardship. US courts have consistently interpreted reasonable accommodations in the restricted manner described in Hardison. Although the ADA articulated its own approach for determining reasonable accommodations, it is not surprising that accommodations sought under the ADA often follow the de minimis practice articulated in the pre ADA jurisprudence. One US court evaluated a request to work at home by focusing on so called expense, lack of supervision, "risks" to computer networks, equipment and possible compromises of confidential information.179 The court further argued that "most jobs, like the Plaintiff's here, cannot be performed at home without a substantial reduction in the quality and productivity of the employee's performance."180 The level of hardship imposed on the employer was not part of the analysis, but, it seems that inconvenience was considered and somehow factored into a comparison of costs and benefits. Another US court went further than Posner and imposed a cost benefit responsibility on the plaintiff. The court stated that the plaintiff has an obligation to ensure that the requested accommodation

177

Ibid. Trans World Airlines v. Hardison, 432 U.S. 63, 84 (1977); see also, Ansonia Board of Education et al., v. Philbrook et al., 479 U.S. 60 (1986); Banks v. Babbitt, 163 F.3d 605, 1998 WL 667448 (9th Cir. (Alaska)). 179 Whillock v.Delta Airlines Inc., 926 F. Supp. 1555 (N.D. Ga. 1995), aff’d mem., 86 F.3d 1171 (11th Cir. 1996) (following the kind of analysis indicated by Posner, considering costs and inconvenience rather than whether an accommodation can be made and whether that accommodation would impose any undue hardship on the employer). 180 Whillock, 926 F. Supp. at 1565. 178

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does not impose costs on the employer that clearly exceed the benefits of the accommodation.181 In the United States the courts are quite sensitive to the costs of any accommodations imposed on the employer. Reasonable accommodations are dependent on a cost-benefit analysis and only awarded where costs and benefits are roughly proportional to each other. It also appears that the cost and inconvenience to the employer must be relatively insignificant while the benefit of accommodations to the employer must be significant. Unfortunately, the benefit to the employee does not appear to be an important factor within this evaluative process. Therefore, an offer of any modest accommodation is most likely to be regarded as sufficient to meet the requirements for a reasonable accommodation. These kinds of disputes in Canada are sometimes decided in a much different way. In fact in 1992, the Supreme Court of Canada specifically rejected the "de-mininus" approach so commonly used in the United States. 182 The court stated that the Hardison de minimus test virtually removes the duty to accommodate and seems particularly inappropriate in the Canadian context. More than mere negligible effort is required to satisfy to duty to accommodate. The use of the term "undue" infers that some hardship is acceptable; it is only "undue" hardship that satisfies this test.183 In Canada, the duty to accommodate imposes a positive duty on the employer to accommodate the workplace to provide the employee with a disability an equal opportunity to perform a job for which he or she is otherwise qualified. This obligation by the employer, however, is not limitless.184 The employee's rights have to be balanced with the employer's right to conduct its business in a "safe, economic and efficient manner."185 This evaluation is done while also applying the concept of 181

Stone v. City of Mt. Vernon, 118 F.3d 92 (2d Cir. 1997). Renaud v. Board of School Trustees, School District No. 23 (Central Okanagan), (1992) 2 S.C.R. 970, 95 D.L.R. (4th) 577, 16 C.H.R.R. D/425. 183 Ibid. (please note that in some places herein, different spellings for deminimus are used because the courts themselves use alternative spellings). 184 D’Andrea, Corry, Forester, Illness and Disability in the Workplace, (Aurora, Ontario: Canada Law Book Inc., 2000) at 4-58. 185 Ibid. 182

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"undue hardship." An employer satisfies its burden when it establishes that it has provided accommodations to the point of undue hardship. The difference between the American and Canadian approaches is simply that Canadian courts tend to require more from the employer before finding undue hardship. American courts often require only a minimal amount of hardship, if any at all, before hardship reaches the point where it becomes excessive.186 In Gill v. Canada,187 a plaintiff with a learning disability sought employment with Revenue Canada as a collections officer. He was asked by the Public Service Commission (PSC) to write a test as part of the application process. He asked for a waiver, claiming that the test was a systemic bar to his employment in the sought after position. The PSC denied the waiver. In subsequent negotiations with the PSC, the plaintiff's psychologist recommended three alternative testing methods to more fairly assess the claimant's knowledge. The PSC rejected the doctor's recommendations and decided upon a different testing method, their own interpretation of reasonable accommodation. The psychologist stated that the newly proposed test would test the plaintiff’s weaknesses, not his strengths, and would not represent his real life performance capabilities. The PSC would not budge from its offer of accommodation. They said it would take too much time and would cost too much. In their holding, the tribunal said that an offer of any accommodation is not necessarily an offer of a reasonable accommodation. An accommodation must be a reasonable accommodation and it must be to the point of undue hardship. Costs to the PSC were minor, certainly nothing approaching 186

It is interesting to note that there may be important differences in the purpose of the ADA and Canadian Human Rights codes. The preamble to the ADA states that the purpose of the law is to provide for an equality of opportunity for the disabled. A Canadian court saw broader policy reasons for the duty to accommodate, stating that the “Ontario Human Rights code is meant to foster a society which will allow diversity to flourish ...[and] to accommodate the needs and interests of those who differ from the dominant majority group ... we want to make space within our communities for the comfortable co-existence of those who differ by ... [listing protected classes, including disability] ... and [acknowledging] ... there will be a commensurate cost to be borne by us all.” Janssen v. Ontario Milk Marketing Board, (1990) 13 C.H.R.R. D/397 (Ont. Bd. Inq.) at D/401 (also recognizing that undue hardship will inevitably involve inconvenience, disruption and expense for the employer). 187 Gill v. Canada (Public Service Commission), (1996) 25 C.H.H.R. D/439, 96 C.L.L.C. p230-024 (F.C.T.D).

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undue hardship. The tribunal also placed much value on the documentation and suggestions offered by the plaintiff's doctor. The evidence supported the doctor's suggestions for the requested alternative testing approach as a reasonable accommodation. Canadian provinces, like the EEOC, issue interpretive guidance to assist the courts and the public in understanding the law and in understanding employer responsibilities as they relate to those with disabilities. In Ontario, the Guidelines for Assessing Accommodation Requirements for Persons with Disabilities was written to assist employers and courts in understanding the Ontario Human Rights Code.188 Specifically, with respect to the costs imposed on an employer, the defense of undue hardship will be shown to exist if the financial costs that are demonstrably attributable to the accommodation of the needs of the individual with a disability, and/or the group of which the person with a disability is a member, would alter the essential nature or would substantially affect the viability of the enterprise responsible for the accommodation.189 The Guidelines also go into some detail on how the cost should be calculated and even include provisions on tax benefits to the employer. Unlike the Posner / Calabresi approach, it is clear that actual quantification is necessary. D'Andrea has stated that in Canada, "it is unlikely that employment practices which discriminate on the basis of disability will be upheld as BFORs if instituted solely or primarily for economic reasons."190 However, D'Andrea has also identified some cases involving age discrimination and others dealing with efficiency requirements that might have undesirable implications in the future for disabled persons in the workplace.191 With respect to the cost issue, the Supreme Court has 188

Ontario Human Rights Commission, “Guidelines for Assessing Accommodation Requirements for Persons with Disabilities” (Toronto, Ontario: Prov. of Ontario, 1992) page 7, contained as an attachment in, Insight Information, Inc. Human Rights and Disabilities in the Workplace, (Toronto, Ontario: Insight Press, 1994) page 219. 189 Ibid. 190 D’Andrea, at 4:4600, 4-58. 191 Ibid at 4:4600-4:4710, 4-58 to 59; citing, Jardine v. Ottawa-Carleton Regional Transit Commission, (1995) C.H.R.D. No. 6 (C.H.R.C.) (rejecting 60 141

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addressed this question recently and has stated that "cost is not always irrelevant to accommodation."192 However, to justify discrimination, cost must be excessive and the employer must consider all cost reduction alternatives. The SCC has also stated that "it is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment."193 In some circumstances excessive costs may justify the denial of equal treatment, but, the cited costs cannot be impressionistic.194 In Canada, costs and benefits remain a factor in the assessment of the accommodation and employer undue hardship. In the United States, costs are more important, and the relationship of costs to benefits can also play a dispositive role in the outcome of reasonable accommodation questions. As a result, "trivial" benefits may undermine modest requests for accommodation.

The Extent of Accommodation Courts and tribunals in Canada have frequently pushed the employer's obligation to provide reasonable accommodations to those with disabilities. The extent of this accommodation is due to the directive to provide accommodations to the point of undue hardship. My reading of cases over several years shows that plaintiffs win in the majority of their claims. Generally, these results are markedly different from those

year old bus driver applicant for safety and economic reasons, upheld apparently on the safety issue; but the Review Tribunal also cited costs associated with training and early retirement as important considerations); Lee v. British Columbia Maritime Employer’s Assn., (1989) 10 C.H.R.R. D/6526, 89 C.L.L.C ¶ 17,025 (C.H.R.T), affd 95 C.L.L.C. ¶ 230-020, judicial review denied, (1996) F.C.J. No. 661 (T.D) (longshoreman lacking in physical coordination justifiably denied employment for economic reasons, but for what might more accurately be thought of as efficiency reasons); Mack v. Marivstan, (1989) 10 C.H.R.R. D/5892 (Sask Bd. Inq.) (kitchen helper not be in the late stages of pregnancy). 192

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999) 26 C.H.R.R. D/129 (SCC) at para 41 (also citing Eldridge v. British Columbia (Attorney General), (1997) 3 S.C.R. 624 at para. 87-94 as rejecting a cost based argument, especially where the costs might well be fairly modest). 193 Ibid. 194 Ibid.

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obtained by plaintiffs in the United States.195 For example, a British Columbia tribunal found that employers have an obligation to accommodate the needs of the disabled and, while the plaintiff may make suggestions, there is no duty on the part of the plaintiff to find the solution.196 In fact the employer must initiate accommodation even in situations where the employee is not candid about the condition.197 The employer's responsibility to search for appropriate accommodations is heightened where the disability in question involves a mental disorder. In Allbright Drycleaners Ltd. the employee had been hospitalized for depression and, upon return to work, the employer noticed a distinct change in behaviour. A BC human rights tribunal found that she was suffering from a mental disability when terminated and the employer should have sought to accommodate her.198 Another BC human rights tribunal held that extreme emotional distress was a disability, even in the absence of a medical diagnosis, that called for the consideration of reasonable accommodations.199 In the United States, the EEOC interpretive guidance contemplates an interactive process between the employee and the employer for identifying reasonable accommodations, but places the initial obligation on the employee to propose accommodations. US case law has largely followed 195 My reading of about 50 Canadian disability cases published in the C.H.H.R, L.A.C. and D.L.R over the last 5 years showed that plaintiffs won about 75 percent of their cases. This compares markedly to Professor Colker’s study where ADA plaintiffs won only 6 percent of their employment cases between 1992 and 1998. See, Ruth Colker, “The Americans with Disabilities Act: A Windfall for Defendants” at 107, Table I. My reading of US disability cases since Professor Colker’s study suggests that this very low percentage of plaintiff wins has declined even further. When undertaking this research, I initially thought I would do an updated tabulation of Colker’s work. I decided against it for several reasons. Anyone who does a modest level of reading in ADA caselaw will realize plaintiffs lose almost all the time. Moreover, when rare wins occur, plaintiffs tend to lose on appeal. 196 Deborah Marc v. Fletcher Challenge Canada, Ltd., (1998), 35 C.H.R.R. D/112 (BC Trib). 197 Conte v. Rogers Cablesystems Ltd., (1999) 36 C.H.R.R. D/403 (Can. Trib). 198 Willems-Wilson v. Allbright Drycleaners Ltd. (1997), 98 C.L.L.C. 230-007 (BC Trib). 199 Mager v. Louisianna-Pacific Canada Ltd. (1998), 98 C.L.L.C. 230-032 (BC Trib) (the respondant knew or ought to have known that the complainant was in extreme emotional distress which caused her to have difficulty in performing her duties). 143

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this reasoning. In Monette v. Electronic Data System Corp., the court held that the "disabled individual bears the initial burden of proposing an accommodation and showing that the accommodation is objectively reasonable."200 The guidance also says that the employer should initiate the "interactive process" if it knows or has reason to know that the employee has a disability or is experiencing workplace problems due to a disability. But, in the United States, the courts often freely ignore EEOC guidance and, thus, they frequently create Circuit Court splits on interpretative issues. The Eleventh Circuit held that an employer did not have to offer accommodations to an employee who did not ask for one, even though the employer had knowledge of the employee's limitations.201 The Seventh Circuit has followed a different path, one consistent with the EEOC position, holding that the employer should have initiated the interactive process toward a reasonable accommodation when a custodian with a mental disability requested a less stressful job.202 In Canada, it 200

90 F.3d 1173 (6th Cir. 1996) (disabled have the burden of coming forward with a “reasonable” request for accommodations). 201 Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361 (11th Cir. 1999) (imposing on the plaintiff the obligation of presenting a reasonable accommodation to the employer); see also, Stone v. City of Mt. Vernon, 118 F. 3d 92 (2d Cir. 1997), cert. denied, 118 S.Ct. 1044 (1998) (ADA plaintiff has the obligation of coming forward with the suggestion(s) for reasonable accommodation and the request must “suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed the benefits”); Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996) ( informing employer about affliction of bi-polar disorder together with a request to investigate needs, without saying anything about his limitations, and as a result, the employer had no obligation to engage in the “interactive” process). 202 Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996) (employer had a responsibility to discuss an accommodation with employee’s doctor before refusal); other similar 7th Circuit cases impose some, albeit limited, responsibility on the employer to be involved in some way with the suggestions for accommodations, see also, Beck v. Univ. of Wisc., 75 F.3d 1130, 1135 (7th Cir.1996) (where one party holds information important to accommodation, failure to provide may breakdown ‘interative process’ for determining reasonable accommodations, constituting bad faith and produce findings that employers are not liable under the ADA); Feliberty v. Kemper Corp., 98 F.3d 274 (7th Cir. 1996); Vande Zande at 538 (Judge Posner’s opinion while not necessarily in disagreement with these other 7th Cir. cases, he does impose an additional obligation on the plaintiff, that being a separate “reasonableness” requirement on the employee’s requests before one claims a failure to accommodate).

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seems that the employer has the responsibility of initiating the search for accommodations and the employee, although not required to do so, may make suggestions. In the United States, more of the onus for finding accommodations rests on the employee. The courts frequently find that the primary responsibility for proposing solutions is in the hands of the disabled employee. Even if the employee suggests an accommodation, and the employer rejects it, the onus still remains on the employee to find a solution acceptable to the employer.203 In Canada, the employer has more responsibility with respect to finding solutions. In a British Columbia case, a worker injured his back while at work and, after a recovery period of six weeks, was denied employment upon his return to work.204 In spite of the fact that the employer found a replacement employee, the tribunal found discrimination and a need for reasonable accommodation because the employer considered and rejected the employee based on its perception of disability.205 An Alberta tribunal held that Safeway could accommodate disabled persons who missed a qualification deadline due to their disability, and found that their participation in a company buyout program would not impose undue hardship on the company,206 while a BC Human Rights Tribunal found that a complainant's absence from work due to depression could have been accommodated without causing the respondent undue hardship because temporary replacement help was easily available.207 These cases demonstrate that leave of absence is a reasonable accommodation and that the employer has an obligation to be part of the process of finding a reasonable accommodation. It must also be noted that leave alone is not 203

Whillock, 926 F.Supp. at 1565 (employee only offered one accommodation, defendant was not obligated to find a solution after rejecting the plaintiff’s solution; interestingly, the decision quotes Posner’s Vande Zande at great length, as do many cases involving reasonable accommodation). 204 James Johnman v. Chilliwack Furniture World Ltd., (1999), 35 C.H.R.R. D/307 (BC Trib); but see, Coleman v. Manto Holdings Ltd., (1999), 35 C.H.R.R. D/508 (NS Bd.Inq) (plaintiff suffered from pain and had to take time off work, replacement employee hired, and when plaintiff returned to work employer still had a duty to accommodate to the point of undue hardship, however, shortage of work and the firms financial situation were accepted as valid defences). 205 Ibid. 206 Starzynaki v. Canada Safeway Ltd. (1999) , 35 C.H.H.R. D/478 (Alta. H.R.P.). 207 Margaretha Willems-Wilson v. Allbright Drycleaners Ltd. (1997) 32 C.H.R.R. D/71 (BC Trib). 145

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sufficient as an accommodation where other viable alternatives exist.208 In general, Canadian courts tend to encourage employers to do more as part of a reasonable accommodation effort than do US courts. The additional obligation, to accommodate to the point of undue hardship, requires more than just having a duty to reasonably accommodate. The above discussion demonstrates that the courts and tribunals in Canada often employ an expansive view of reasonable accommodations in their analysis of disability claims.209 Unfortunately, this broad perspective has not always been taken and in some cases Canadian courts and tribunals have given a great deal of deference to employers. This deference has been based on freedom of contract and managerial discretion "rights" and it has impaired the enforcement of the quasiconstitutional legal rights contained within the human rights code. These so called "rights" have some currency in the legal community.210 Moreover, deference to these "rights", together with a series of cases211 208

British Columbia v. Tozer (No.2) (2000), 36 C.H.H.R. D/393 (B.C. Trib.). Michelle Jones v. Gloria Companion et al, (1997) 33 C.H.R.R. D/254 (rigid company rules regarding absence cannot be used to terminate an employee with a mental disability without first using a reasonable accommodation that must include an exploration of “all reasonable and practical alternatives”). 210 The view that freedom of contract and managerial discretion are “rights” has strong advocates in the legal community. Karen Selick in particular, has written very strong editorials in Canadian Lawyer. See, Selick, “Calling a Slave a Slave” (Oct. 1995) 19 CL 46 (criticizing a Human Rights Commission decision to force a chiropractor to construct a wheelchair ramp after a complaint was filed by a person using a wheelchair; Selick calls this reverse discrimination, a kind of slavery where business is subservient to and powerless against the interests of minority groups; she says that Human Rights Code creates an “involuntary servitude” on business and makes the minority “overlords”); Selick, “The Ramp to Hell” (Sept. 1995) 19 CL 46 (diatribe against the imposition of wheelchair ramps on private business owners); Selick, “Don’t Import This Bad U.S. Law” (Jan. 1999) 23 CL 54 (arguing against the passing of ADA type legislation in Ontario; she states that the law will actually violate human rights, the “rights” of freedom of contract and private property “rights”; she also exaggerates the impact of the ADA by citing a number of cases where preposterous claims were made without stating the claims were either dismissed or lost). 211 Bhinder v.CNR Co (1985) 2 S.C.R. 561, 23 D.L.R. (4th) 481 (no duty to accommodate where BFOR exists and thus no discrimination; producing confusion as to whether a duty to accommodate and BFOR applies to direct discrimination or just indirect discrimination); Ontario and O’Malley v. SimpsonsSears Ltd., (1985) 2 S.C.R. 536, 7 C.H.R.R. D/3102; Central Alberta Dairy Pool 209

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dealing with the duty to accommodate and the application of employer defenses, has lead to a decade of confusion and legalism, and sometimes produced detrimental judgments for persons with disabilities.212 Ian McKenna has acknowledged that a patchwork of cases has restored some of the damage done to the duty to accommodate by Bhinder and the subsequent bewildering jurisprudence. Nonetheless, he argues persuasively that the management rights doctrine still has much strength, citing a number of cases to support his position.213 In one example he v. Alberta (1990) 2 S.C.R. 489, 12 C.H.R.R D/417. 212 See A.M. Molloy, “Disability and the Duty to Accommodate” (1992) 1 Canadian Labour Law Journal 23, 33; Ian B. McKenna, “Legal Rights of Persons with Disabilities in Canada: Can the Impasse Be Resolved?” (1992) 29 Ottawa L. Rev. 153, para 56 (arguing that confusion about types of discrimination, accommodations and employer defences contributed to increased deference for employer positions). 213 Ian B. McKenna, at para 59; see also, Woolworth Canada v Human Rights Commission (1994) 114 Nfld & PEI 317, NJ No. 25 (disabled employee dismissed because he could not do all of the requirements of the job; court said employer had no duty to accommodate the employee up to the point of undue hardship because his inability produced an analysis different from the adverse effect discrimination, more like direct discrimination, and thus there was no duty for the employer, and no grounds for the plaintiff’s case; in making its decision, the court gave the employer full deference to their management decisions and did not explore the possibility that accommodations might permit the employee to work and be productive for the employer); see also, Bonner v. Ontario (Ministry of Health) (1992) 16 C.H.R.R. D/485, 92 C.L.L.C. 17,019 (disabled must be accommodated because of “handicap, not inability” and there is no requirement to “hire or retain employees who because of handicap are ... incapable of doing the work, simply because [the employer] has the resources to tolerate deficient work.” ibid at para 83 - the court does not explore the benefits of accommodations and gives complete discretion to the employer with respect to operations; modifications might in fact permit productive employment, but instead of this considering this possibility, without any numerical analysis decides that deficient work costs too much and that the disabled person will be deficient, and ignoring the role of environment in the construction of impairments); see also, Chamberlain v. 599273 Ontario Ltd. (1989) 11 C.H.R.R. D/110; Barnes v. Canada Life Assurance Co. (1994) 24 C.H.R.R. D/409 (a case clearly demonstrating the confusion facing the courts over the application of when to apply employer defences and when to require the duty to accommodate; in Barnes the complainant aggravated a back condition and recovered sufficiently to perform 70% of her job; the tribunal found that it was not discriminatory to terminate her because when a person is incapable of performing all of the job tasks, the requirement to fulfill the entire job does not 147

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discusses, Air BC,214 the grievor lost about 35% of her scheduled work time during five and one-half years of employment because of her disability and, as a result, was terminated by her employer. The arbitrator focused the analysis completely on the grievor's biomedical condition in comparison to non-disabled persons. Factors were identified for the evaluation of undue hardship.215 The focus on the biomedical and cost factors, together with a line of cases on freedom of contract and managerial discretion, produced an analysis that gave no consideration to the effect that job duties, shifts and the physical environment had on the disability.216 As a result, there was no real consideration of possible reasonable accommodations. The arbitrator just accepted management's generic assertion that accommodations would cost too much and ignored the broad purposes of human rights legislation. McKenna rightfully observes that in the AirBC case, the distortive effects of the biomedical and cost benefit approaches to assessing disability and accommodations are evident. The quasi-constitutional human rights laws are watered down and undue deference is given to employer positions. KcKenna's concerns are also shared by other writers in the field.217 have a discriminatory effect; this is because such conduct is direct discrimination for which there is no duty to accommodate if a BFOR is accepted). 214 Re AirBC Ltd. and the Canadian Airline Dispatchers Association (1996) 50 L.A.C. (4th) 93. 215 Ibid at 117 (factors focussed on the disability, costs to the employer, morale of employees and safety, but did not consider reasonable accommodations to the point of undue hardship). 216 See, Re U.A..W. and Massey Ferguson Ltd. (1969) 20 L.A.C. 370,371; Re U.A.W., Loc. 458 and Massey-Ferguson Industries Ltd., (1972) 24 L.A.C. 344, 348; Re Niagara Structural Steel Ltd. and U.S.W. Local 7012 (1978) 18 L.A.C. (2d) 385; Re Canada Post Corp. and C.U.P.W. (1982) 6 L.A.C. (3d) 385. 217 See, Day Shelagh and Gwen Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1996) 75 Can. Bar Rev. 433, 463-65 (noting that Canada has rejected the de minimus approach to undue hardship and the narrow approach to reasonable accommodations used in the US, but also expressing concern about the continuing development of the law, in Canada, in a way that is too deferential to employers and where the benefits to the employee will be left out of the analysis; the authors also correctly suggest that the religious accommodation paradigm is insufficiently substantive for transfer to other grounds of discrimination); see also, Anne Molloy, “Disability and the Duty to Accommodate” (1992) 1 Can. Lab. L.J. 23, 33-37 (discussing confusion in Canadian law with respect to the distinctions between direct and adverse impact discrimination and when the duty to accommodate and the BFOR defence applies as well as the resulting legalisms

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Recently, in British Columbia v. B.C.G.E.U.,218 the Supreme Court of Canada revisited the often perplexing patchwork of jurisprudence on direct versus adverse effect discrimination, the duty to accommodate and BFOR. The Court addressed many of the shortcomings identified by McKenna and others regarding the abusive use of legalisms that sustain employer deference on questions of employment discrimination. The Court adopted a "unified" approach to the analysis of employer defenses and imposed a duty to accommodate on the employer irrespective of the kind of discrimination involved. If an employer uses a discriminatory standard, it can be justified by establishing on a balance of probabilities: 1) that the standard is rationally connected to the performance of the job;219 2) the standard was adopted with a good faith belief that it was necessary to meeting work-related purposes,220 3) that the standard is reasonably necessary to the accomplishment of that legitimate workrelated purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship on the employer.221 It is this third point that makes the "unified" approach different from the conventional analysis criticized by McKenna. A defendant must demonstrate that a discriminatory standard is reasonably necessary. To succeed on this point, the defendant must establish that there is an objective basis for the rule, that there is no reasonable alternative to the rule, and that it would be impossible to reasonably accommodate the plaintiff without imposing of undue hardship. A number of decisions have

from Bhinder and its resulting line of cases which have undermined disability discrimination claims). 218 British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. (1999), 176 D.L.R. (4th) 1, 35 C.H.R.R. D/257 (hereafter “Meiorin”) (case involved an employment standard that discriminated on the basis of sex, but dealt with duty to accommodate and BFOR; therefore, the case has important implications for the duty to accommodate and BFOR in disability law questions). 219 220 221

Ibid at 54, D/275; 59, D/276. Ibid; 60, D/276. Ibid. 149

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now applied the Meiorin approach to questions of disability and it seems to be working quite well to date.222 The duty to accommodate is still in a developmental stage in Canada. It must not be reduced to a narrow cost-benefit assessment of the employer's best interests or conveniences. These cases demonstrate that the assessment of reasonable accommodation in Canada goes beyond a mere estimated comparison of costs and benefits and often does impose significant obligations on the employer. The decision in Meiorin asserts an expansive view of reasonable accommodation which is linked to BFOR and in so doing, the reasoning used is wholly consistent with the Supreme Court of Canada decisions in Granovsky and Montreal / Broisbriand where the Court clearly articulated the need for an expansive definition of the term 'disability.'

Reassignment as a Reasonable Accommodation A comparison of the American and Canadian approaches to job reassignment or modification as an accommodation demonstrates remarkably well the more inclusive approach often taken by Canadian courts. While the ADA also contemplates duty modification and 222

Hussey v. British Columbia (Ministry of Transportation and Highways) (1999), 36 C.H.R.R. D/429 (BC Trib) (applying all three steps of Meiorin to find that a deaf individual had been discriminated against in the issuance of a Class 4 driver licence required by his employer; the government hearing standard could remain, but individualized assessments of applicants must be made and where possible, applicants must be accommodated to the point of undue hardship, and the Ministry in consultation with the applicant, should seek the least restrictive solution); Tozer v. British Columbia (Ministry of Transportation and Highways) (2000) 36 C.H.R.R. D/393 (BC Trib) (aneurysm and stoke limited employee’s left hand and impaired keyboarding at computer; she was placed on indemnity leave at 60 percent salary; the tribunal applied the Meiorin standard and found a failure to accommodate because there was no effort to find alternative work); Grismer v. British Columbia (Council of Human Rights) (1999), 36 C.H.R.R. D/129 (SCC) (Supreme Court leads the way in applying Meiorin finding discrimination the refusal to award a driver’s licence because of homonymoushemianopsia, a condition limiting peripheral vision; court found individual assessment might be possible without incurring undue hardship).

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reassignment as accommodations, the courts often apply these remedies in a very muted fashion.223 Accommodations are designed as an effort to move towards equality in treatment for those with disabilities. However, reassignment and modifications are sometimes regarded as providing more than equality, something more like affirmative action. Affirmative action is clearly seen as the provision of something more than equality.224 In the United States, the courts are concerned about "giving" the disabled too much, and crossing an imaginary remedial boundary into unwarranted affirmative action. For example, US courts have narrowly construed the reassignment requirement given in the ADA.225 Holdings have tried to construe the use of reassignment as only a non-discrimination requirement and not a reasonable accommodation requirement. It is said that when interpreted as a reasonable accommodation, reassignment goes too far and becomes a 223 29 C.F.R. § 1630.2(o)(2)(ii) (“reasonable accommodation” may include “job restructuring, part-time or modified work schedules” and “reassignment to a vacant position”). 224 Jeffrey O.Cooper, “Overcoming Barriers to Employment: The Meaning of Reasonable Accommodations and Undue Hardship in the Americans with Disabilities Act” (1991) 139 U. Pa. L Rev. 1423, 1431 (noting that the courts are sensitive to a reasonable accommodation being more than the provision of equality, and becoming an affirmative action that gives preference to the disabled. Cooper notes that both affirmative action and reasonable accommodation require actions to treat people differently in order to treat them equally. He argues that the two are different, affirmative action being remedial so as to correct past wrongs. He says that reasonable accommodation is not remedial in the sense that it is not designed to correct past wrongs (as is the case with race discrimination), but rather its aim is to deal with present obstacles to employment. This jurisprudential difference in reasoning is not surprising because it is consistent with the varying levels of scrutiny approach in the United States Constitution. Race is identified as a protected class requiring the highest level of analysis, strict scrutiny. The disabled are not a protected class and thus are only given rational basis scrutiny). 225 Ruth Colker, “Hypercapitalism: Affirmative Protections for People with Disabilities, Illness, and Parenting Responsibilities under United States Law” (1997) 9 Yale J.L. & Feminism 213, 222,223 (Colker argues that reasonable accommodation case law under the ADA has diminished value because the courts are construing the statutory obligation for reassignment as only a nondiscrimination obligation and not a requirement of reasonable accommodation; the argument frequently used by the courts is that the ADA was not intended to be an affirmative action statute). 151

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variety of affirmative action. Thus, the courts have denied plaintiffs reassignment accommodations on the grounds that the ADA is not an affirmative action statute.226 Holdings have clearly articulated that the ADA prohibits employment discrimination against the disabled, no more and no less.227 Consequently, when reassignment opportunities have become available, and they have been taken by non-disabled persons, the courts have found for the employer on the basis the ADA does not support priority consideration over able bodied persons.228 It is argued that the 226

See, Fussell v. Georgia Ports Authority, 906 F. Supp. 1561 (S.D. Ga. 1995) (summary judgment for the defendant employer because ADA is not an affirmative action statute, and thus, no priority to disabled applicants seeking an accommodation reassignment). Ibid. at 1577; Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) (finding that the ADA does not require affirmative action, and thus, reassignment does not require priority over non-disabled person, it only requires non-discrimination). Ibid. at 700. 227 See, Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997) (ADA does not require affirmative action in favor of the disabled; ADA prohibits employment discrimination against qualified individuals with disabilities, but does not need to provide more); Wernick v. Federal Res. Bank of N.Y., 91 F.3d 379 (2d Cir.1996) (working with an assigned supervisor is an essential function of the job and rejecting the view that employers have an affirmative duty to reassign); Terrell v. USAir, 132 F.3d 621, 626 (11 Cir. 1998) (rejecting the view that “parttime or modified” work schedules were necessary where the employer had “phased out” such positions; the court emphasized “the ADA was never intended to turn nondiscrimination into discrimination” and saying that Congress never intended to grant preferential treatment for disabled workers) Ibid at 627; Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1314-15 (D.C. Cir 1998) (no need to reassign if the reassignment to a “vacant position” involves preference to the disabled); some Circuits seem to be split on this issue, notably the 10th Circuit, see, Smith v. Midland Brake & Wilcox Co., 180 F.3d 1154 (10th Cir. 1999) (en banc) (where reassignment is a reasonable accommodation under all circumstances and the disabled employee has a right to reassignment, not just to consideration of a potential reassignment; the right is not absolute, but it does require deliberate consideration by the employer and may rise to a right after consideration of the factors involving possible reassignment). 228 ADA s. 101 (9) (employees seeking light duty or reassignment to a different position as a reasonable accommodation must note the this section says that such accommodations include “reassignment to a vacant position”; thus, if the job is simultaneously sought by another, then the job usually goes to the non-disabled person ); see also, Rosalie Murphy , “Reasonable Accommodation and Employment Discrimination Under Title 1 of the Americans with Disabilities Act” (1991) 64 S. Cal. L.R. 1607, 1608 & n. 75 (looking at the legislative history of the

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obligation of reasonable accommodation of reassignment to a vacant position is only a nondiscrimination requirement, not a reasonable accommodation requirement.229 These kinds of rulings create serious complications for disabled persons seeking accommodations. If they are to be terminated because they cannot do the job, the employer is not required to reassign the employee to alternative employment or modify duties.230 In addition, any light duty reassignments may be frequently sought by other employees and, under such circumstances; the job is deemed "not vacant" and may be given to non-disabled employees. It is not necessary to give priority to a disabled employee. Moreover, if the disabled employee cannot do the job, modification of responsibilities is unnecessary because the employee is deemed "not qualified."231 In the event the disabled employee can do the ADA calling for reassignment, but only to vacant positions, and “suggesting” that future collective bargaining agreements comply with the ADA, but also only “permitting” employers to take action to accommodate by reassignment). 229 Ruth Colker, at 223. 230 Bates v. Long Island RR Co., 997 F.2d 1028 (2d Cir 1993) (employer not required to reassign pipe fitter with an ankle injury); DiPompo v. West Point Military Academy, 770 F.Supp. 887 (S.D.N.Y 1991), affirmed 960 F.2d 326 (2d Cir 1992) (restructuring job or providing a reassignment for a firefighter with dyslexia not a reasonable accommodation); Carrozza v. Howard County, 847 F.Supp. 265 (D.Md. 1994) (job restructuring for bi-polar disorder not necessary); Fedro v. Reno, 21 F.3d 1391 (7th Cir 1994) (no duty to reassign if no vacant position is available); Howell v. Michelin Tire Corp. 860 F. Supp 1488 (M.D. Ala 1994) (issue of whether there is a duty to reassign to a light duty position is a question for jury determination). 231 The history of denying duty modifications, under the guise of “not qualified” and so requiring no need to explore accommodations, is not just a recent event under the ADA, under the Rehabilitation Act the same result can be found often. See, DiPompo at 887 (firefighter with dyslexia not qualified because he cannot read well enough in emergency and non-emergency situations and restructuring the job would lead to safety risks); Ward v. Skinner, 943 F.2d 157 (1st Cir. 1991) (epileptic taking anti-convulsant medicine not qualified to drive commercial vehicles); Serrapica v. City of NewYork, 708 F. Supp. 64, 72-3 (S.D.N.Y. 1989) (insulin dependant diabetic not qualified to drive sanitation truck); Davis v. Meese, 692 F. Supp. 505, 518-19 (E.D. Pa. 1988) (insulin-dependent diabetic not otherwise qualified to be FBI agent); Salmon Pineiro v. Lehman, 653 F.Supp. 483, 493 (D.P.R. 1987) (person suffering seizures is not otherwise qualified to be a criminal investigator for Naval Investigative Services and alternate accommodations were not considered); for a more recent commentary on this 153

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job, and vacant positions are available for reassignment, the employer may offer reassignment, but, if the employee rejects this reassignment, the employer has no obligation to offer other reassignments.232 The employer has then met the obligation of offering a reasonable accommodation. The employee is not entitled to a choice of accommodations, only a reasonable one.233 In situations where collective bargaining agreements and seniority provisions are involved, the courts have ruled that it would be an undue hardship to require accommodations in violation of an agreement.234 problem, see, M. Graham-Zagrodzky, “When Employees Become Disabled: Does the Americans with Disabilities Act Require Consideration of a Transfer as a Reasonable Accommodation?” (1997) 38 S.Texas L. Rev. 939 (discussing this common problem under the ADA - an employee who cannot perform the essential job functions of his or her job because of disability cannot pursue a transfer to another position because he or she is not qualified, thus not covered by the ADA). 232 Smith v. Midland Brake, Inc., at 1177; Hankins v. The Gap, Inc., 84 F.3d 797, 802 (6th Cir. 1996) (once the disabled employee refuses one accommodation, that person is no longer considered a “qualified individual with a disability”); see also, Aka, 156 F.3d at 1305; Keever v. City of Middletown, 145 F.3d 809, 812 (6th Cir. 1998, cert denied), 119 S. Ct. 407 (1998) (finding that a police officer who rejected an offer of a desk job as an accommodation, instead seeking either a change in work shift or a promotion to detective; the court found that the rejection of a reasonable accommodation removed the employer’s obligation to accommodate and made the plaintiff a no longer qualified individual, and thus, no longer protected by the ADA). 233 Kiel v. Select Artificials Inc., 169 F.3d 1131, 1137 (8th Cir. 1999) (if alternative accommodations are available, then the employer has discretion to choose among the accommodations according to his/her own interests); Stewart v. Happy Hermans’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997) (the use of the “word ‘reasonable’ as a adjective for the word ‘accommodate’ connotes that an employer is not required to accommodate an employee in any manner in which that employee desires” because the ADA only requires a reasonable accommodation); Smith, v. Midland Brake, Inc., at 1171 (accommodation of reassignment to a vacant position is limited by the modifier of reasonableness). 234 Interestingly, the EEOC Guidelines specifically note that an employer cannot claim that a reasonable accommodation imposes undue hardship merely because it violates seniority or collective bargaining provisions. However, the US courts often disregard the interpretive guidance and have ruled that it would be undue hardship to violate a collective bargaining agreement. See, Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997); Eckles v, Consol. Rail Corp., 94 F.3d 1041 (7th Cir. 1996); a recent US Supreme Court decision provided some additional direction on this issue and confirmed the heightened priority of seniority over disability on

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It seems curious that US courts impose on the employee the obligation of proposing accommodations and engaging in the "interactive process" with an employer. If the employer offers a "reasonable" accommodation to the employee, but the employee finds the accommodation unsuitable, the courts will find the employer's duty complete and the employee is no longer a "qualified individual" and no longer covered by the ADA. Surely this so called interactive process is not the kind of exchange intended by the EEOC or envisioned by Congress. These holdings establish judicial endorsement of and participation in a backlash against accommodations for people with disabilities. Together with decisions like Posner's in Vande Zande, they have encouraged subsequent courts to trivialize disabilities and exaggerate requests for reasonable accommodations. Thus, the courts are, in effect, given license to create precedents which undermine the interests of the disabled. It is not surprising that Professor Colker's examination of ADA trial court decisions between 1992 and 1998 showed that only 6 percent of disabled plaintiffs won their cases.235 Although there are generally no specific statutory references in Canadian human rights laws regarding reasonable accommodations, the concept of reasonable accommodations for the disabled has been widely adopted by Canadian courts.236 In addition, the courts in Canada have frequently applied a more liberal construction of the employer's duty to provide reasonable accommodations than is the case in the United States.237 Reassignment and light duty assignments holdings provide a accommodations. The court said that only under “special circumstances in particular cases of merit [should allow for] a departure from the general rule.” U.S. Airways v. Barnett, 535 U.S. 391, 398 (2002); see generally, “Preferential Treatment and Reasonable Accommodation Under The Americans With Disabilities Act” (2004) 55 Ala. L. Rev. 951 (discussing conflicts between seniority desires and disability accommodations). 235 Colker, “Windfall” at 107, Table I. 236 The concept of reasonable accommodation in disability law in Canada has its roots in cases involving religious and other forms of discrimination. See, Ontario Human Rights Commission v. Simpsons Sears, (1985) 23 D.L.R. 4th 321, 335 (noting that an employer has a duty to take steps to accommodate the plaintiff, short of undue hardship). 237 Ruth Colker, at 216 (she states that her review of similar US and Canadian cases clearly shows that the Canadian courts have included a broad interpretation of reasonable accommodation requirements; she cites another comparative 155

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good illustration of Canadian court's use of a more liberal approach to reasonable accommodation for disability. In Beznochuk v. Spruceland Terminals Ltd.,238 the petitioner worked in a brewery and his job involved lifting kegs of beer. He subsequently suffered from low back pain and was unable to lift the kegs. His employer said no lighter work was available and terminated his position. The British Columbia Council of Human Rights did not find any reasonable basis for sending this matter to a hearing. However, on appeal, the British Columbia Supreme Court found that the Council erred by failing to address the issue of whether extending reasonable accommodations to the petitioner would cause the employer undue hardship. The court noted that the petitioner only sought "modifications" to the position as an accommodation, not the creation of a new position. The court said that the employer could find another employee to do the heavy lifting responsibilities of the job. The court in its remand to a board of inquiry said that undue hardship is fundamental to the issue of whether the discrimination is justified. It is discrimination unless the effort to accommodate reaches the point of undue hardship. In Canada, an employer must make a genuine effort to accommodate the disabled employee. In fact, an offer of different duties at a new location may not satisfy the duty to accommodate where there is no offer of relocation assistance, or where the offer's terms are uncertain or the

analysis by Brian Doyle as too narrow, that the lack of specific statutory protection and the use of statutory language in the federal statute which “permits” reasonable accommodation as evidence that Canadian protections are weaker); but see, Brian Doyle, “Disability Discrimination and Equal Opportunities: a Comparative Study of the Employment Rights of Disabled Persons” (1995) 24646 (with a different view Doyle argues that the Canadian employers only have a voluntary obligation to provide reasonable accommodations and states that of Canadian reasonable accommodation law is based on reasonable accommodations for religious discrimination; Doyle’s assertions are founded on an incorrect understanding of reasonable accommodation law in Canada and apparently an inaccurate reading of Canadian case law. Many Canadian courts have applied an expansive interpretation of reasonable accommodation and extended this requirement to mean that accommodations do not become unreasonable until the employer’s efforts reach the point of undue hardship. Doyle’s restricted interpretation of Canadian reasonable accommodation law is not accurate); see, Ruth Colker at 226, n. 64 (describing Doyle’s interpretation as inconsistent with her reading of Canadian case law). 238 (1995) B.C.J. No. 2351, DRS 96-00727.

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accommodations offered are only temporary.239 Nonetheless, employees cannot expect a "perfect accommodation." For example, someone with a back injury seeking light duty reassignment might not receive a full-time position as a reasonable accommodation if the amount of light duty work to be done was insufficient to support a full-time job. Accommodation does not require the creation of a new position, particularly where there is no need to do the work in question.240 Moreover, hiring a full-time second person to assist the disabled person in doing the job is an "extravagance" not necessary under the Code.241 But, the creation of a part-time position on a temporary basis might be a reasonable accommodation allowing an employee with depression the opportunity to gradually work back into full-time employment.242 Thus, even with the more expansive approach to reasonable accommodations in Canada, there are limits to the reach of reasonableness. Another case that demonstrates this more expansive approach to reasonable accommodation is Re Province of Manitoba and Manitoba Government Employees' Union.243 The petitioner was injured and sought accommodations by way of another position within the civil service. The government tried to place him in several positions, but all were unsatisfactory to the petitioner. In spite of the substantial efforts by the government to meet the needs of the plaintiff, the arbitrator held that 239

Koeppel v. Canada (1997) 32 C.H.R.R. D/107 (Dept. of National Defense) (hearing impaired and moody complainant suffered discrimination because personality was a product of her disability and temporary reassignments to different positions did not fulfill the requirement of providing accommodations to the point of undue hardship); see also, Mills v. VIA Rail Canada, (1996) C.H.R.D. No. 7 (C.H.R.T.); Commission des Droits de la Personne du Quebec v. Autobus Legault Inc., (1994) R.J.Q. 3027, 25 C.H.R.R. D/337 (Q.H.R.T.); DeSouza v. Ontario (Liquour Control Board), (1993) 23 C.H.R.R. D/401 (Ont. Bd. Inq.). 240 Re Marzano and Nathar Ltd., (1992) 18 C.H.R.R. D/227, 252 (Nfld. C.A.); see also, Edgell v. Board of School Trustees, District No. 11. 97 C.L.C.C. 230009 (B.C.C.H.R.). 241 Ibid at 252. 242 Guylaine Grenier (Commission des droits de la personne) v. Societe de Portefeuille du groupe Desjardins, (1997), 33 C.H.R.R. D/168 (Trib.Que) (complainant suffering from depression took 2 months sick leave and then sought part-time work with a plan to gradually work into full time employment; the employer denied this accommodation; tribunal found that the employer has a duty to accommodate short of undue hardship and failed to do so; accommodation must be extended to the point of undue hardship). 243 (1994) 42 L.A.C. (4th) 86. 157

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further steps were necessary to provide reasonable accommodations to the petitioner. The reasoning was simply that the government had not provided reasonable "accommodations to the point of undue hardship."244 To avoid a finding of discrimination, the arbitrator stated that the employer must provide accommodations to the point of undue hardship.245 Only then is discrimination warranted.246 This analysis also extends to unionized bargaining units. The duty to accommodate requires employers to carefully go over all other jobs within the bargaining unit and consider whether any jobs could be modified for the disability in question247 and there is also authority calling for consideration of jobs outside the bargaining unit.248 In addition, where there is interference with seniority rights, some preference in favour of the disabled can be justified to accommodate the disabled worker.249 And 244

Ibid at 98. Ibid. 246 These more liberal decisions are not isolated ones. See also, Boucher v. Canada (Correctional Service), (1988) C.H.R.D. No.3 T.D. 3/88 (correctional officer in maximum security prison experienced an anxiety attack and began to suffer nervous depression and could no longer execute his employment responsibilities. He sought a transfer to the job of a driver as an accommodation. Drivers were also correctional officers, but not continuously in close contact with the prisoners every day. The tribunal stated that the plaintiff did indeed have a protected disability and found that accommodation to the point of undue hardship was necessary, and therefore, the plaintiff had to be reinstated and accommodated with a driver position); Barnard v. Fort Frances, (the Ontario Board of Inquiry found that an employer had reasonably accommodated a diabetic policeman by restricting his duties to not include carrying a weapon or driving a police vehicle while keeping full salary and benefits); CUPE v. Canada Post Corp, (letter carrier developed mental disability and the employer was required to find another position within the Corporation); Heincke v. Brownell, (Ontario Board of Inquiry found transfer of job as spray painter to packer essential as a temporary accommodation); see also, Re Embrick Plastics Div. of Windsor Mold Inc. and Ontario Human Rights Comm. (requiring temporary accommodation of employer in automobile spray painting booth). 247 See, Re Boise Cascade Canada Ltd. and U.P.I.U., Local 1330 (1994) 41 L.A.C. (4th) 291; Re Calgary District Hospital Group and U.N.A. Local 121-R (1994) 41 L.A.C. (4th) 319; Re Pharma Plus Drugmart Ltd. and U.F.C.W. (1993) 33 L.A.C. (4th) 1. 248 Re Metropolitan Toronto (Municipality) and C.U.P.E. Local 79 (1993) 35 L.A.C. (4th) 35. 249 M.Kaye Joachim, “Seniority Rights and the Duty to Accommodate” (1998) 245

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while disruption of a collective agreement can impose an undue hardship, it is clearly not dispositive as to whether an accommodation would impose an undue hardship.250 In addition, if the terms of a collective agreement contravene the relevant human rights legislation, then the violating term(s) can be struck down.251 In the United States, the Manitoba case would be evaluated in a very different way. The reassignment to another position would be an nondiscrimination requirement, not a reasonable accommodation requirement. No priority to the disabled person would be necessary. Moreover, once one reassignment was offered and rejected, the employer would have no further duty to accommodate. Only a modest effort to accommodate would be required and it need not be extended to the point of undue hardship. The employer need only show some hardship (or perhaps inconvenience) and demonstrate that the costs to the employer exceed the benefits to the employer. In Canada, the employer has a duty to accommodate to the point of undue hardship and must establish that all possible alternatives have been considered. This analysis favours the Canadian approach to reasonable accommodation in comparison to the statutory protections and judicial interpretations applied in the United States. This does not mean that Canadian approaches to disability law are beyond reproach. As discussed, people with disabilities in Canada have faced significant resistance to the duty to accommodate and this resistance continues. The serious under funding of human rights commissions in several Canadian provinces is testimony to the level of resistence.252 This under funding creates years of 24 Queen’s L.J. 131 (author outlines the complex issues associated with the interference of seniority rights for accommodation purposes, cites supporting cases and argues that while intervention to the normal seniority system is acceptable, it should not be too onerous, and should not force a worker to accept substantially inferior working conditions to accommodate a disabled worker). 250 Central Okanagan School District No 23 v.Renaud (1992) 95 D.LR. (4th) 577 (the union and the employer must accommodate up to the point of undue hardship). 251 Re Maple Leaf Meats Inc. and United Food and Commercial Workers International Union, Locals 175 and 633 (2000) 89 L.A.C. (4th) 18, Part 1, Oct. 18, 2000 (employees on long term disability terminated on basis of collective agreement, terms of the agreement found to be discrimination in violation of the Ontario Human Rights Code). 252 See, Ian McKenna, at para 47-60 (discussing the under funding issue as well as the failure of the legislatures to pass statutory protections and thus force the 159

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delay for complainants, discourages those considering legal action and undermines the value of remedies. This chapter has also touched on the tremendous resistence to disability protections in the United States. This resistance has been given judicial support by the recent United States Supreme Court decisions in the Sutton trilogy of cases. These decisions, together with Posner's decision in Vande Zande, have encouraged the courts to continue to disregard the EEOC interpretive guidance and restrict the reach of reasonable accommodations. Hopefully, this unfortunate direction in US disability law will change for the better. In spite of some resistence to disabled rights in Canada and to the provision of accommodations, there is no doubt that the generous human rights laws here contribute to a more progressive view of reasonable accommodations than generally exists in the United States.

Conclusion The essential characteristics of employment disability law in the United States and Canada have been described. A cursory examination of the law in the two countries might create an impression that the general legal model is the same. Indeed, many of the words that are used to describe legal tests and the operation of the law are similar. But, the law in the two countries is in fact quite different. Moreover, the legal reasoning used by the courts in assessing disabilities and the appropriateness of accommodations, also differs quite substantially. The American experience with disability law is fraught with very serious problems. Most of these problems are connected to an emphasis on evaluating the bio-medical condition and the degree of the of functional impairment, all for the purpose of ensuring that the condition is sufficiently substantial to be covered by the ADA. Canadian legislators and courts can find lessons in the American experience and avoid these very serious flaws. Canada already has in place the first step toward full protection of persons with disabilities, that first step being the specific identification of persons with disabilities within Section 15 of the Charter

courts to wrestle with disability issues and the development of tests that might be best articulated in a statute; a complaint based system has developed from this process, and unfortunately it does not impose many specific obligations on employers).

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of Rights. In the United States there is no constitutional protection for persons with disabilities. Second, in Canada each of the provinces has passed human rights legislation. The legislation broadly defines disability and the courts have deliberately applied an expansive interpretation. Of course, this does not mean that Canada recognizes and accommodates trivial disabilities. In fact, it does not. Nonetheless, Canada does provide broad protections for those with disabilities. In spite of these protections, Canadian laws remain insufficient. Peter Cory argues that specific legislation, such as an Ontarians with Disabilities Act, is necessary because the Charter of Rights and the Human Rights Code are not enough. He says that it is "inefficient and inhumane to leave it to vulnerable members of our society, who often cannot pay for lawyers for protracted litigation, to bring legal proceedings against each barrier they face, one at a time."253 This need for supportive legislation within Canada is explored further in Chapter VI. Thus, the third step in this protective process calls for Canadian provinces to enact specific legislation to reduce barriers to employment and to prescribe statutory obligations on employers for certain reasonable accommodations. Such an effort should be viewed as supportive of existing human rights legislation and caution is essential so as not to undo the advantages of the human rights protections in Canada. However, in spite of this need within Canada, Canadian protections compare quite favourably to those that exist within the United States. In my view, American disability law and the interpretations thereof, inappropriately undermine the very purpose of the law. The ADA fails to meets its remedial purpose. Professor Chai Feldblum of the Georgetown Law Center believes that this failure is due to the narrow definition assigned to disability by the courts.254 Feldblum notes that under the Rehabilitation Act, before the ADA, disability was understood as any

253

Peter Cory, “Disabilities Legislation long overdue”, editorial, Toronto Star, Nov. 7, 2000 (former judge on the Supreme Court of Canada from 1989 to 1999, Peter Cory comments on the need for specific disabilities legislation to be used in concert with the Charter of Rights and the Ontario Human Rights Code). 254 Chai Feldblum, “Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?” (2000) 21 Berkeley J. Employment and Lab. L. 91 (pointing out that under the Rehabilitation Act, the courts applied a broader definition of disability and “rarely parsed the language of the definition to decided whether a plaintiff was a ‘handicapped individual’ under the law.”). 161

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medical condition that was non-trivial.255 Under the ADA the definition changed and became much more restrictive.256 The Sutton trilogy of cases has played a role in the narrowing of disability, but even prior to Sutton, the definition was interpreted by the courts quite narrowly.257 Canadians need to ensure that the American approach toward disability law does not inspire either lawmakers or courts within Canada. In the United States, the law and the reasoning is structured around a need to exclude those individuals with undeserving disabilities. In fact, it is often the central focus of the law. In Canada, the focus of the law is on the more appropriate question, can a reasonable accommodation permit the individual to successfully undertake the essential job functions? This is indeed the more appropriate question, and it should continue to be the most important one. 255

Ibid. See, School Board of Nassau County v. Arline, 480 U.S. 273 (1987) (a good example of an expansive pre ADA Rehabilitation Act interpretation of the definition of disability, finding a plaintiff with inactive tuberculosis as “being regarded as having an impairment”). 257 Ashley L. Pack, “The Americans with Disabilities Act After Sutton v. United Air Lines - Can It Live Up To Its Promise of Freedom for Disabled Americans?” (2001) 89 Ky. L. J. 539 (suggesting that the Sutton trilogy has changed the face of ADA protections; I think, yes, it has altered the face of the protections, but the protections were already seriously undermined); of course some writers disagree and see the narrowing of Sutton as necessary to protect employers from trivial suits, see, Richard C. Dunn, “Determining The Intended Beneficiaries of the ADA in the Aftermath of Sutton: Limiting the Application of the Disabling Corrections Corollary” (2002) 43 Wm. & Mary L. Rev. 1265. 256

CHAPTER V

Access To Higher Education And The Professions For Persons With Disabilities Introduction Access to higher education is crucial for people with disabilities. Formal education is the foundation upon which much personal growth takes place and expanded opportunities for training contribute considerably to the lives of people with disabilities. Admission to the formal means of learning facilitates access to greater employment openings and career advancement opportunities. Without access to these opportunities, people with disabilities will make little progress toward integration in our society.1 Educational institutions have the same obligation to provide reasonable accommodations as employers do toward those with disabilities. Upon graduation from colleges and universities, these students will seek vocation in a wide variety of employment situations, including the professions. Thus, closely connected to greater access to education is admittance to the professions. Entry into some professions only requires satisfactory academic performance and graduation with a diploma or degree.2 Other professions govern admission with additional

1

This position, of course, assumes that it is desirable to make some effort towards equality for people with disabilities. Astonishingly, some respected legal theorists sometimes do not see this as a desirable objective. See, Richard Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws, (Cambridge, Mass. Harvard Univ. Press, 1992) at 480-94 (Epstein believes that it would be best to deal with the disabled by having the government provide grants to selected institutions and industries and having only those institutions made accessible to those with disabilities). 2 Positions in retail management, business, economics, banking and other professions often hire employees without any additional testing beyond an appropriate degree and a successful job interview.

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requirements and sometimes additional testing.3 These additional requirements are also subject to the duty to reasonably accommodate persons with disabilities. The alleged failure to accommodate disabled students has produced exceptionally contentious litigation in the United States. This discussion considers charges of discrimination by disabled students against testing administrators such as the Educational Testing Service (ETS) and other cases where universities have failed to reasonably accommodate. Also addressed is the high level of deference the courts frequently give to academic decision makers which sometimes allows schools to employ discriminatory accommodations policies. This reflection about the presence of discrimination in higher education then turns to another closely related issue, an analysis of the duty to accommodate for professional examinations. In addition, the following discussion tends to focus on the American experience because these disputes have produced little litigation within Canada. Nevertheless, some Canadian cases are notable because they demonstrate how Canadian courts are likely to examine these kinds of disputes.

Statutory Protection and Access to Higher Education As discussed in Chapter III, in the United States, the key federal statutes governing the access of the disabled to higher education are the Rehabilitation Act (RA)4 and the Americans with Disabilities Act (ADA).5 The need for legislation governing non-discrimination and disabilities in higher education was first recognized in 1973 with the passage of Section 504 of the RA. This Act only applied to the federal government and other institutions supported by federal funding. To be covered a student seeking

3

Professional employment such as medical doctors, lawyers, architects, engineers etc., requires passing additional exams. Employment in transportation planning or engineering are now oftentimes requiring successful performance on professional exams within six months of the start of employment. See any recent issue of the Institute of Transportation Engineers Magazine published monthly by the ITE or the American Planning Association newsletter “Job Mart,” also published on a monthly basis. Testing for professional certification and career advancement has expanded well beyond the traditional fields of law, medicine and engineering and this is a trend likely to continue. 4 29 U.S.C. §§ 701-797b (1988 & Supp. V. 1993). 5 42 U.S.C. §§ 12101-12213 (Supp. V. 1993).

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protection must fit within the definition of a handicapped individual6 and must also be identified as “otherwise qualified.”7 For those seeking academic and professional training, the ADA extended protective coverage to private and public educational institutions, including professional programs and access to the professions.8 The ADA defines a qualified individual with a disability in a very similar way to the RA.9 To be qualified, under the ADA, a “qualified individual with a disability” such as a disabled student must be one who, with or without reasonable modifications to rules, policies, or practices ...

6

To be a person with a (i) a physical for mental impairment which substantially limits one or more of a persons major life activities; (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. 29 U.S.C. § 706(8)(B). Major life activities include “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 45 C.R.F. § 84.3 (j)(2)(ii) (1995). 7 See, Southeastern Community College v. Davis, 442 U.S. 397 (1979) (rejecting a deaf student seeking training as a nurse; court concluded that the law does “not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate”; if “otherwise qualified” the person cannot be excluded “solely by reason of ... handicap,” but in Davis understanding speech was considered an essential part of the academic program. Ibid at 405) . 8 Title II of the ADA applies to state and local governments and their instrumentalities, both as employers and as providers of services to the public, thus covering educational services such as public colleges and universities. Title III of the ADA applies to private sector “public accommodations” such as private colleges and universities. Education is one of the specifically identified activities defined as being a “public accommodation.” Pub. L. No. 101-336, 104 Stat. 328 (1990); 42 U.S.C. §§ 12101-12213 (1994) (US Codes). 9 A disabled person has (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). The Rehabilitation Act uses the term “substantial impediment” to [participating in major life activities] and the RA also uses the term “substantially limits” one or more major life activities 29 U.S.C. § 705. Detailed postsecondary education regulations under RA Section 504, are to be read consistently with the ADA. This is important because the ADA regulations do not deal with education very much, instead they incorporate RA requirements on these issues. See, Laura F. Rothstein, Disability Law, (Charlottesville, VA: Michie Butterworth, 1995), at 348.

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meets the essential eligibility requirements for the receipt of services or the participation in programs or activities.10 Universities and colleges responded to the passage of the ADA with closed-captioned television, elevators, wheelchair ramps, handicap parking, notetakers and a range of modifications to assist those with hearing, seeing, walking and other disabilities. In spite of these changes, access to higher education and to the professions has become increasingly contentious for those with certain disabilities. Opponents to accommodation see the ADA as fostering a “spirit of entitlement that is suspicious of any standards that may exclude any person claiming disability.”11 These kinds of disputes are beginning to generate some interesting suits. The disabilities most frequently questioned include behavioural problems, vision difficulties and hearing impairments. Learning disabilities have also produced some very contentious litigation because some academic institutions and professional licensing bodies have been resistant to providing accommodations for learning disabled applicants.12 Colleges and universities are engaged in higher learning and the notion of accommodating those with learning disorders seems to go against the grain of some institutions.13 Nonetheless, to the chagrin of many, some 10

Ibid at § 12131(2). J. Freedley Hunsicker, “The Accommodation of Writing Disorders in Law School: A Lawyer’s View” (1998) 27 J.Law & Education 621 (arguing that writing standards are fundamental to a successful career in law and that learning disabilities and other similar disorders that effect writing should not be accommodated in law school because students with these disabilities are not “otherwise qualified” for protection under the ADA); Perry A. Zirkel, “Introduction: Accommodating Legal Education For “DWE” Students: Lawful or Awful?” (1998) 27 J.L. & Educ. 615 (arguing that various accommodation for DWE specifically and disabilities generally, might compromise essential academic standards). 12 Catherine Pieronek, “Discrimination Against Students in Higher Education” (1999) 26 J. College & Univ. L. 307, 331 (noting that wherever the dispute involves a learning disability or another disability that effects learning, “the courts have struggled with every element of this analysis”). 13 Hunsicker at 622 (suggesting that the “spirit of entitlement” fostered by the ADA has produced costly “special education mandates”; stating that colleges and universities have, in response to the ADA, created offices and committees designed to assure that students with a wide range of discrete disabilities receive special accommodations; accusing the American Psychiatric Association of searching out new learning disabilities and criticizing college administrators for 11

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universities have been quite receptive to accommodating those with learning disorders. Others have not. Canadian human rights laws have extended similar protections to students entering higher educational institutions in Canada. However, in Canada the public fanfare associated with accommodations and the ensuing litigation has been noticeably absent. Canadian universities and colleges have gradually adopted policies that permit accommodation of disabilities.

Stigmatization and Disability The integration of people with disabilities into academic environments has met with considerable resistance. Vigorous opposition has also faced those attempting entry into the professions. This resistance is frequently based on fictional views about the competence of those with disabilities. Resistance seems to be greatest where the disabilities affect learning and are not readily observable by others as is the case with some vision impairments and learning disabilities. Yet, learning disorders are a recognized impairment by the medical community.14 Overcoming these myths, stereotypes and fears about disabilities is part of the process of integration. Among these myths is the feeling that accommodations for people with disabilities will require adaptations that are too costly and will celebrate low productivity, compromise safety, increase liability, compromise attendance and foster contentious student attitudes. People with mental disabilities are regarded as ill or diseased, weak or having some personal failing.15 People with learning disabilities are often regarded as simply unintelligent. Many of these beliefs, misperceptions

granting accommodations in a large majority of cases). 14 See, American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, DSM-IV-TR; (Washington, D.C.: 2000) (manual published by the American Psychiatric Association that sets criteria for the diagnosis of neurobiologic and other psychiatric disorders such as dyslexia and other learning disorders). 15 John F. Fielder, Mental Disabilities and the Americans with Disabilities Act: A Concise Compliance Manuel for Executives, (Westport, Connecticut: Quorum Books, 1994) at 9-15.

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and attitudes are deeply rooted and even highly educated people hold misguided views about disabilities.16 Jon Westling, the President of Boston University manifested a common stereotypical ignorance towards disability. In a series of speeches about accommodating learning disabilities he ridiculed “the learning disability movement [as] a great mortuary for the ethics of hard work, individual responsibility, and [the] pursuit of excellence”17 and even went so far as to refer to persons with learning disabilities as “genetic catastrophes.”18 These views are not exceptional. In professional school environments people with learning disorders are often regarded as “not smart, that’s all there is to it, just not smart.”19 To some the notion of accommodating a learning disorder in an academic environment is ludicrous. As a result, some faculty members refuse to comply with the ADA and oppose requested accommodations.20 Learning disabilities are especially ridiculed. The Executive Secretary of the New York Board of Law Examiners admits to “a certain cynicism as to the existence of learning disabilities.”21 He doubts that many diagnostic tests are really legitimate and claims that “the law is a learned profession and I am not sure that a person with a learning

16 D. Engel, F. Munger, Rights of Inclusion, Law and Identity in the Life Stories of Americans with Disabilities, (Chicago and London: University of Chicago Press, 2003) (discussing legitimacy of learning disabilities and generally describing the issues involving learning disabilities by the life stories of persons with such learning disorders) at 58-66. 17 Guckenberger v. Boston University, 974 F. Supp. 106, 118 (D. Mass. 1997). 18 Ruth Colker, “Perpetuation of Stereotypes Unfair to Learning Disabled,” The Columbus Dispatch, September 13, 1997 (Professor Colker is the Heck-Faust Memorial Chair in Constitutional Law at Ohio State University, College of Law; she has recently authored a textbook on Disability Law). 19 I have heard these actual words spoken in an educational setting, thus the quotations. I have also heard on a number of occasions similar sentiments expressed in educational settings by both professors and students. 20 Salome M. Heyward, “Higher Education and Disability Law: Emerging Issues” (January / February 1995) Volume 14, Number 1, HEALTH 1 (stating that tenured faculty feel secure and free to discriminate because the “classroom is their domain and that they have the academic freedom to teach the way they believe is best). 21 Bartlett v. New York Board of Law Examiners, 970 F.Supp 1094 (1997) at 1136 (Fuller expressing his doubts about accommodating learning disabilities).

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disability should aspire to such a goal.”22 He also stated that it was his “job to protect the public from incompetent and incapable lawyers” and the public would be “unaware that they would be purchasing a defective product in the case of learning disabilities.”23 Other disabilities are also the focus of derision. There is an attitude of scorn towards the notion of accommodating disabilities, a feeling of giving something to people that they do not deserve.24 There is a fear that a disabled person might obtain “an unfair advantage” over non-disabled students. Judicial review often seems to be overly designed to ensure such “unfairness” does not take place. As a result, disabilities are often trivialized as part of the process of illustrating this so called “unfairness.” The courts have also trivialized the impact of a wide range of disabilities on everyday life.25 Others have said that a person unable to read standard text “is incapable of performing the functions of a lawyer” ignoring the fact that many blind lawyers function very well within the legal profession.26 These stereotypical attitudes are widespread, but I believe that continued litigation, education and time will change them. The undertaking within this chapter is about these students, about a variety of disabilities and about their efforts to obtain access to higher education and the professions.27 It is about their encounters with 22 Ibid; (the court determined that there was sufficient evidence to find bias in the NY bar approach to evaluating the need for accommodations). 23 Ibid. 24 Robert Sternberg, “Extra Credit for Doing Poorly,” NY Times, Aug. 25, 1997, A15; Ruth Shalit, “Defining Disability Down,” New Republic, Aug. 25, 1997, at 16 (calling for “fair play” and reliance on merit rather than accommodations); But see, Michael A. Olivas, “Constitutional Criteria: The Social Science and Common Law of Admissions Decisions in Higher Education,” (1997) 68 U. Col. L. Rev. 1065-69 (criticizing the notions of so called “fair play” and “meritocracy” as reasons for special consideration for specific groups in university admissions). 25 Lennard Davis, “Bending Over Backwards: Disability, Narcissism, and the Law,” (2000) 21 Berkeley Journal Employment & Labor Law 193 (discussing the trivialization of disabilities by courts and defendants). 26 Ruth Shalit, “Defining Disability Down,” The New Republic, August, 1997 (also suggesting a lawsuit to protect the learning disabled might be “reductio ad absurdum of identity politics and tort madness.” ). 27 My review of disability cases in higher education suggests that people with physical disabilities generally receive the accommodations sought. However, people with vision impairments sometimes encounter resistence to accommodations. The one other area of significant dispute is the accommodation

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institutions, stereotypical views and the trivialization of their disabilities. It is also about reasonable accommodations, breaches of promises to accommodate and the heightened level of deference the courts traditionally give to the decisions of academic administrators.

Access to Universities and Colleges Educational institutions face a significant challenge in ensuring the provision of reasonable accommodations to disabled students in an impartial and equitable manner. This can be particularly difficult if stigma is part of the assessment environment. Administrators often recognize that the desire of disabled students to participate fully in the educational experience must not be diminished. Some also recognize that belittling the disabilities of students is entirely inappropriate. Unfortunately, this openness is not very common and the courts and school administrators have sometimes engaged in an approach that trivializes the degree of disability as well as the need for any accommodations. This investigation of disability and access to higher education first considers the role of standardized testing. Second, the discussion describes the significant part that stereotypical bias plays in both the delivery and denial of accommodations. Bias is a very significant factor in many disability inquiries. Third, this analysis considers the role the “substantially limited” clause of the ADA plays in disability evaluations and in the denial of accommodations. The section concludes with an inquiry into the significance of judicial deference to academic decisions in denying reasonable accommodations. Contrasts are drawn with Canadian statutes and cases.

Flagging Non-standard Test Scores Standardized tests act as gates to both undergraduate and graduate education. Satisfactory performance on these tests is usually necessary for admission into higher education. People with disabilities sometime seek accommodations for these tests. However, when reasonable accommodations are offered, test scores are routinely flagged to indicate a disabled recipient of testing accommodations. The testing services argue of learning disabilities.

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that flagging is necessary because they cannot certify the comparability of scores obtained under accommodated and non-standard test conditions. Universities further argue that flagging is necessary to ensure accuracy. They contend that “disabilities can affect college performance and, therefore, must be weighed in admissions decisions.”28 Thus, stigma is immediately attached to an application for admission to higher education. Notwithstanding the recent increase in disability claims against educational institutions and professional examiners, the flagging of nonstandard test scores has continued unabated for many years. Following the passage of the Rehabilitation Act in 1974, the United States Department of Education Office of Civil Rights (OCR) established a policy of permitting the flagging of test scores used for college admissions.29 This policy has continued on without any significant challenge. Testing services claim that they are unable to endorse the comparability of standardized test scores obtained from accommodated and standard test administrations. Therefore, people with disabilities who require special accommodations have score reports labelled “non-standard administration” or some other similar designation.30 The obvious labelling beckons to admissions personal that this one either requires particular critical scrutiny or perhaps should be ordinarily excluded. Unfortunately, common stereotypical attitudes about disabilities, like those of Jon Westling of Boston University and Mr. Fuller of the New York State Bar Examining Committee, are prevalent in our society.

28

Educational Testing Service, “The Controversy over Flagging” (ETS, 1988) 21 Focus at 2 (indicating that flagging is necessary to provide schools with the information to make accurate admissions decisions). 29 Dianne C. Brown, “APA Science Meets with Dept. of Education’s Office of Civil Rights” Division 14 of the American Psychological Association, July 1996; see, http://www.siop.org/tip/backissues/ tipjul96/BROWN.HTM, website visited March 11, 2004 (noting that OCR may consider changing their policy on the flagging of accommodated exams because of the chances of discrimination in university admissions). 30 If not specially labelled “nonstandard administration”, they are labelled in some other way that informs admissions committees that the applicant has a disability.

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Kristan Mayer sees the flagging of standardized test scores as “actionable civil rights violations of disabled test takers.”31 She states the use of the test scores by institutions of higher education is often based on uniformed and stereotypical attitudes. She cites a report by the Association of American Law Schools (AALS) that found admissions committees evaluate the applications of disabled persons in “widely disparate fashions.”32 Unfortunately, the people often sitting on admissions committees have no idea how to evaluate applications from people with disabilities and often “rely on common stereotypes” in arriving at their decisions.33 Mayer believes the AALS findings “suggest a general ignorance among law schools [toward the] ... disabled student population.”34 Of course it is not just law schools; flagging may be used to deny access to virtually all areas of higher education. The first direct legal challenge on flagging was successful;35 however, the court of appeals overturned the lower court ruling. The court reasoned that there were no provisions in the ADA that “explicitly required confidentiality as to a person’s disability from providers of public accommodation.”36 The court also stated that there was no evidence that academic “programs would regard the annotation as a signal of invalidity” and that the plaintiff had not proven his accommodated scores were comparable to non-accommodated scores.37 Nevertheless, another recent lower court challenge has also been successful in striking at notations. Mark Breimhorst sued the Educational 31

Kristan Mayer, “Flagging Nonstandard Test Scores in Admissions to Institutions of Higher Education” (1998) 50 Stan. L. Rev. 469 (arguing that flagging is a discriminatory practice under the Rehabilitation Act and the ADA). 32 Ibid. Citing, Association of Am. Law Schools, “Final Report of the Special Committee on Disability Issues for the Association of American Law Schools” (1991) 4. 33 Ibid. 34 Ibid at 499 (Mayer states the AALS study reveals that few law schools have a positive attitude toward the inclusion of students with disabilities. She feels that this is because there are issues of “cost, fraud, and stigmatization that are unique to disability status.”) Ibid. 35 Southeast DBTAC, “Judge Strikes Down the Annotation, Or Flagging, Of the Test Scores of a Medical Student” Nov. 2 1999; website visited February 10, 2001, http://www.sedbtac.org/whats_ new/pr/pr19991207b.html. 36 John Doe v. National Board of Medical Examiners, 199 F. 3d 146 (3rd Cir. 1999). 37 Ibid.

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Testing Service (ETS) for identifying disabled test takers. He has no hands and as an accommodation, he received extended time and a computer with a trackball for the Graduate Management Application Test (GMAT).38 He applied to a number of MBA programs, reasonably expecting acceptance at some schools. He was rejected by every school. His suit alleged that ETS sends a “stigmatizing message that people with disabilities obtain an unfair advantage when they receive accommodations, and that their scores should therefore be viewed with skepticism.”39 ETS settled the suit and announced they would no longer flag the test results of persons with disabilities. This new policy applies to ETS tests only: GMAT, the Graduate Record Examination (GRE), the Test of English as a Foreign Language, and Praxis, a test for teachers. The policy does not apply to the Scholastic Aptitude Test (SAT) or medical (MCAT) or law school admission tests (LSAT). These other tests are owned by separate entities and are not connected to ETS. Breimhorst has pushed the issue of flagging in the right direction, but more needs to be done. It is clear that the issue of flagging will not go away without more litigation. The practice of alerting admissions committees about an applicant’s disability and noting that an applicant has received accommodations or is someone who needs extra help implies that the person is less competent or is someone who has “cheated the system.” The process allows schools to covertly deny admissions because of disability. Every time a testing service flags an accommodated score, the applicant is stigmatized and loses the prospect of evaluation on the basis of qualifications. In Canada, provincial and federal human rights laws provide no direct guidance on the issue of whether the flagging of accommodated tests is an activity that should be permitted. Nor are there any reported cases on this issue. This suggests that the flagging of disability applications has not been earnestly challenged in Canada. Rather, it seems that Canadian college applicants and university administrations have simply accepted the prescriptions of US policymakers and testing administrators. There is no literature in Canada on the issue, although there is criticism generally, about the cursory adoption of American tests to evaluate admissions to Canadian law schools.40 LSAT and other similar tests do in fact treat tests 38

Tamar Lewin, “Disabled Win Halt to Notations of Special Arrangements on Test” The New York Times, February 8, 2001. 39 Mike Ervin, “Test Score Flagging Tested in Court” Disability News Service, Inc., May 3, 2000. 40 Dawna Tong, W.Wesley Pue, “The Best and The Brightest?: Canadian Law

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directed toward Canadian academic institutions in the same fashion as those directed toward US institutions.41

Learning Disabilities and Reasonable Accommodations Upon acceptance into a program of higher education, people with disabilities still have to work out their specific accommodations with the school. Once a disability has been documented to the satisfaction of a school, a range of accommodations are theoretically regarded as acceptable. These include assistive reading devices, tape recorders, extended time on examinations, a variety of auxiliary aids and support services. Other more extensive accommodations are sometimes seen as pushing the fundamentals of academic programs to the level of a “substantial program alteration.”42 With learning disabilities, the process of identifying reasonable accommodations can be complicated. This complexity increases substantially when stereotypical views are added to the process. What is reasonable today may not be tomorrow, depending on who is responsible for decision making at any particular time. One topical case exemplifies exceptionally well the negative, ridiculing and stereotypical attitudes of administrators in one institution toward accommodating learning disorders in educational settings. In Guckenberger v. Boston University,43 a group of learning disabled School Admissions” (1999) 37 Osgoode Hall L.J. 843 (questioning, the predictive value of LSAT and whether policies and tests developed in the United States can serve Canadian admissions objectives). 41 On 08/16/04, calls were made to LSAT and the GRE confirming similar treatment given to Canadian and US test administrations and reporting methods with respect to the flagging question. Both testing administrators claim they conduct all their reporting of scores in compliance with “Canadian law.” 42 Susan Johanne Adams, “Leveling the Floor: Classroom Accommodations for Law Students with Disabilities” (1998) 48 J. Legal Ed. 273, 275. 43 The various claims and the court’s holdings are explained in four separate opinions. See, 957 F. Supp. 306 (D.Mass. 1997) (mem. and order allowing in part and denying in part defendants’ motion to dismiss and allowing plaintiffs’ motion for class certification), hereinafter “Guckenberger I”; 974 F. Supp. 106 (D.Mass 1997) (findings of fact, conclusions of law and order of judgement), hereinafter “Guckenberger II”; 8 F. Supp. 2d 82 (D. Mass. 1998) (order on the issue of course substitutions), hereinafter “Guckenberger III”; 8 F. Supp. 2d 91 (D. Mass 1998) (review of procedural history and the determination of the fee and costs assessments); hereinafter “Guckenberger IV.”

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students brought a discrimination action against a private university. The students alleged that BU’s policies on learning disabilities violated the ADA and Section 504 of the RA. They brought a class action suit on the basis of those students with Attention Deficit Disorder (ADD), dyslexia and other learning disabilities. Prior to 1995, BU had developed a national reputation for learning disabilities support services. A variety of accommodations were offered students including extended time on exams, taped texts, note-taking services and course substitutions for mathematics and foreign language course requirements.44 In early 1995, BU President Jon Westling signalled a change in treatment toward students seeking accommodations for learning disabilities. In a series of speeches on university policies toward students with learning disabilities he ridiculed the idea of accommodating learning disorders in higher education.45 In her decision, Judge Saris took special notice in that Westling’s speeches referred to students with learning disabilities as “draft dodgers,” “phonies,” “slackers,” “frauds” and that he repeatedly expressed concern that students might be faking learning disabilities so as to gain an academic advantage.46 In one speech Westling fabricated a caricature of a learning disabled student that he referred to as “Somnolent Samantha” based on anecdotal stories and uninformed stereotypical views.47 His Samantha was created to personify his view that “students with learning disabilities were often fakers who undercut academic rigor.”48 Samantha, he stated, carried a letter from BU’s Learning Disabilities Support Services (LLSS) 44

BU received about 40 requests per year for course substitutions and granted about 15 each year. Nationally, law schools receive about 15 requests per law school for accommodations related to disabilities; of these, about one-half are for learning disabilities. If supported by documentation, most requested for accommodations are granted. See, Donald Stone, “The Impact of the Americans with Disabilities Act on Legal Education and Academic Modifications for Disabled Law Students: An Empirical Study” (1996) 44 Kan. L. Rev. 567 (a survey of accommodation requests / grants for disabilities in US law schools). 45 Guckenberger, supra note 15 at 118 (charging “learning disability advocates of fashioning ‘fugitive’ impairments ... not supported in the scientific and medical literature” and claimed “the learning disability movement is great mortuary for the ethics of hard work, individual responsibility and the pursuit of excellence”). 46 Ibid at 116-18. 47 Ibid at 118 (the title of the speech was identified by Judge Saris as “Disabling Education: The Culture Wars Go To School”). 48 Ibid at 119 (quoting Judge Saris).

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office saying she had a learning disability “in the area of auditory processing” and would need an extensive range of accommodations. It was noted that she dozed in class and the professor had an obligation to fill her in on the information she missed while dozing.49 Judge Saris observed that “To Westling, Samantha exemplified those students who, placated by the promise of accommodation rather than encouraged to work to achieve their fullest potential, had become ‘sacrificial victims to the triumph of the therapeutic.’”50 Westling feared that “hundreds of thousands ... [were] being improperly diagnosed with learning disabilities by self proclaimed experts who fail to accept that behavioural and performance difficulties exist.”51 By contrast, Judge Saris noted that there has not been a single instance where any BU student fabricated a learning disability and the defendant was unable to show that the plaintiffs were fakers.52 In fact, the court carefully evaluated each of the plaintiff’s claims of disability and found the claims credible.53 The court also acknowledged a need to 49

Robin Estrin, “University President: Student He Used As Example Was Fictional,” AP, April 14, 1997, available at 1997 WL 4861939 (Westling admitted under cross-examination that Samantha was a fabrication and that no one student actually had that set of disabilities or that package of requested accommodations). 50 Guckenberger at 118. In one speech entitled “Disabling Education, Westling further articulated his negative views on learning disabilities by arguing that by seiz[ing] on the existence of some real disabilities and conjur[ing] up other alleged disabilities in order to promote a particular vision of human society,” the learning disability movement cripples allegedly disabled students who could overcome their academic difficulties with “concentrated effort,” demoralizes non-disabled students who recognize hoaxes performed by their peers, and “wreak[s] educational havoc” and further remarked that “the policies that have grown out of the learning disabilities ideology leach our sense of humanity. We are taught not that mathematics is difficult for us but worth pursuing, but that we are ill. Samantha, offered the pillow of learning disability on which to slumber, was denied, perhaps forever, access to a dimension of self-understanding.” 51 Ibid at 119. 52 Ibid. 53 The Guckenberger case was about alleged discriminatory changes to the process for evaluating learning disabilities and to restrictions on reasonable accommodations. Even though the court examined the nature of each of the plaintiff’s learning disabilities in some detail, in this case, a conclusion that the plaintiff’s were both “qualified for coverage under the ADA and sufficiently “substantially limited” was not required because the claim dealt with the effects of a discriminatory process on a class of persons, not one individual.

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provide sufficient documentation of a disability and discussed the appropriate boundaries of the needed documentation.54 Westling certainly gave warning that changes were coming. He first directed the LDSS office to forward all requests for accommodations through his office even though neither he nor his staff had any training or experience in evaluating learning disabilities. LDSS ignored his directive and continued to evaluate and make decisions on accommodations. An incensed Westling then further interfered in the evaluative process by ordering a transfer of all accommodation files to his office. He and his staff proceeded to re-evaluate accommodations. Many requests were overturned and denied. Instead of accommodations, students with disabilities were directed to work harder and make use of tutoring services.55 Other students were ordered to obtain new medical evaluations just prior to the start of the examination period, if their evaluations were more than three years old. In addition, Westling set standards for the evaluations and barred the use of course substitutions in mathematics and foreign languages as reasonable accommodations. The result was a chaotic period at BU. The LDSS office staff resigned in protest and Westling created his own new Disability Office. No right to appeal procedure was given to any students with disabilities. This period of tension at BU has been documented especially well by the court.56 The court found that BU had violated the ADA on retesting of students and the restrictions on the qualifications of testing professionals. Moreover, the court found that BU’s policy for evaluating a student’s documentation violated the ADA. Individuals in the President’s office had no expertise in the area of learning disabilities and were not trained in developing accommodations for those with such disabilities. In addition, the President of BU and other administrators at BU had “expressed certain biases about the learning disabilities movement and stereotypes about learning disabled students”57 which “conflicted with the university’s obligation to provide an evaluation process ‘based on actual risks and not on speculation, stereotypes, or generalizations about disabilities.’”58 54

Ibid at 131-32; and 134-40. Ibid at 119. 56 Ibid at 116-123. 57 Ibid at 141. 58 Ibid; (citing H.R. REP. NO. 101-485, pt. II, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 338); see also, Bonnie Poitras Tucker, “Disability Discrimination in Higher Education: A Review of the 1997 Judicial Decisions” 55

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Professor Bonnie Tucker sees Guckenberger as representing that “while disability documentation may be required, and that documentation must be reasonably current, the requirements for documentation may not be unreasonable, and may not have the effect of screening out eligible individuals from receiving necessary accommodations.”59 I agree with Professor Tucker’s sentiments about the value of Guckenberger, but, I also think that it stands for much more. Guckenberger is a towering signal to the opponents of the so called “learning disabilities movement” that their ignorance can be successfully challenged. The case stands unequivocally for the accommodation of learning disabilities in higher education, including professional programs of study (Guckenberger was a law student). Westling was very open about his contempt toward accommodating learning disabilities. I don’t think it would be an exaggeration to call the zealous language used in his speeches as expressing a kind of hatred. His speeches demonstrated a “discriminatory animus”60 toward those with learning disabilities and clearly contributed toward BU’s losses in the case. BU’s costs were significant, $1,300,000 in attorneys’ fees and costs to the opposing parties alone.61 Universities should take heed and act to avoid the costs, the confusion and embarrassment connected with BU’s treatment of learning disabilities. Learning disabilities will continue to be a source of litigation, and unnecessary costs can be avoided if educators and administrators develop genuine service plans for disabilities as well as reasonable eligibility criteria.62 Professor Peter Blanck suggests that Jon Westling may have “articulated what many university officials, employers, members of the press and others consciously or unconsciously believe about individuals with learning disabilities, but are too ‘politically correct’ to state (1998) 25 J. of College and Univ. Law 349, 353 (also citing H.R. REP NO. 101485, pt. II at 105). 59 Tucker, at 353. 60 Guckenberger II, at 149 (quoting Judge Saris). 61 Guckenberger IV, at 112. Although the plaintiffs won on the main issues in this case, they ultimately lost on one issue, the question of course substitutions as a reasonable accommodation. The court deferred to the reasoning of academic administrators. This issue is discussed further in the subsequent discussion on deference and reasonable accommodations. 62 Melissa Krueger, “The Future of ADA Protection for Students with Learning Disabilities in Post-Secondary and Graduate Environments” (2000) 48 U. Kan. L Rev. 607, 634-35.

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publicly.”63 I believe this is true.64 Indeed, after Guckenberger, sadly, far too often deserving plaintiffs lose their cases. Many of the difficulties associated with Guckenberger might be avoided if only school administrators can get over their prejudicial feeling about learning disabilities. Students and administrators need to work together to provide fair and consistent mechanisms for delivering accommodations to those with learning disabilities. Susan Adams has written an excellent article65 about accommodating learning disabled law students by fair and consistent means. She also emphasizes the need for respect in dealing with learning disabled students. Fortunately, Canadian universities have not experienced public discord comparable to that arising in Guckenberger. This may be because learning disabilities issues have not advanced to the same degree as they have in the United States. Alternatively, it may be due to greater flexibility on the part of Canadian academic institutions; whenever they are faced with similar questions of reasonable accommodations, they act in a fashion which is consistent with the language used in the Charter of Rights and the various human rights laws established across the country. This absence of Canadian ligation is probably the result of some combination of both circumstances. Nonetheless, one Canadian case is certainly worth discussion. In Arnold v. Canada,66 a University of Ottawa law student with a learning disability applied to the Social Sciences and Humanities Research Council (SSHRC) for a doctoral fellowship in law. The applicant, Daniel Arnold, disclosed his dysgraphia and dyslexia on the application as a way of explaining some sub-standard grades. The SSHRC subsequently advised

63 Peter David Blanck, “Civil Rights, Learning Disability, and Academic Standards” (1998) 2 J. Gender Race & Just. 33, 57; see also, Joseph Shapiro, “The Strange Case of Somnolent Samantha: Do the Learning Disabled Get Too Much Help?” U.S. News & World Report, April 14, 1997, at 31. 64 At BU the administration was apparently pleased with Westling’s crackdown on accommodations. Shortly after a number of his demeaning speeches in the United States, Australia and New Zealand, and in the midst of the crackdown on accommodations, Westling was promoted from BU provost to University president. See, Guckenberger II, at 117. 65 Susan Johanne Adams, “Because They’re Otherwise Qualified: Accommodating Learning Disabled Law Student Writers” (1996) 46 J. of Legal Ed. 189. 66 (1997) 1 F.C. 582.

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him that he was an unsuccessful candidate.67 He appealed on grounds of discrimination against a learning disabled person and was again turned down. The applicant then filed a complaint with the Canadian Human Rights Commission (CHRC). The complaint was dismissed as unfounded based on the parties’ submissions and the investigator’s report. The applicant then filed a suit to quash the decisions of the SSHRC and the CHRC. The court found that a liberal and purposive interpretation of the term disability was intended to included dysgraphia and dyslexia. In the alternative, the court also noted that learning disabilities are an “obviously analogous ground of discrimination”68 and thus covered by the Charter of Rights and the Canadian Human Rights Act. The SSHRC and the CHRC did not dispute the issue of whether learning disabilities were a covered disability. Instead, they argued that they had no obligation to directly accommodate the applicant because the fellowship selection process indirectly accommodated learning disabled students. The universities attended by the applicant routinely provide a variety of accommodations to learning disabled students. Thus, the grades obtained at these institutions reflect aptitude and knowledge, and not disability. The court found the CHRC erred in reasoning that the SSHRC did not need to provide an accommodation, as long as someone else, such as a university, provided accommodations. The court stated that Parliament never conferred upon the SSHRC any exemption from compliance with the Canadian Human Rights Act. It further explained the SSHRC must comply in its own right, on its own behalf, with the appropriate federal law in the matter of accommodation and not purport to accept and adopt “surrogate” accommodation which it does not directly offer and which it can neither configure nor control, much less enforce as to quality and content. It must perform its own legal duties itself.69 The plaintiff admitted that he did not always take advantage of available accommodations, such as extra time on papers, because of the

67 68 69

Ibid. at 586. Ibid. at 583. Ibid. at 584.

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distinct possibility of “stigmas or labelling by the professors.”70 Be that as it may, he sought an accommodation, or some type of special consideration within the SSHRC evaluation process, to compensate for the impact the learning disorder had on his academic performance. The SSHRC and the CHRC argued that this additional consideration would result in a “double” accommodation for the learning disability, would not result in a level playing field and would work as a prejudice against other non-learning disabled candidates. The court maintained that the applicant was entitled to, “not merely ... [a] provincial law accommodation, but rather to direct federal law accommodation.”71 The court dismissed concerns about so called “double accommodations.” The court also called the CHRC investigator’s report and subsequent decision “an egregious error of law”72 and imposed an obligation on the SSHRC to provide appropriate accommodations. The directive noted that the form and content of such an accommodation was to be decided and devised by the SSHRC. Moreover, the court provided no additional guidance to the SSHRC with respect to the nature or extent of the required accommodations.73 Clearly, the court felt that the SSHRC was in the best position to draw up accommodations, subject to possible judicial review at a later date. The decision in Arnold avoided the public acrimony in Guckenberger. Comparatively, it was a smaller case. Nonetheless, both cases involved attacks against accommodations for those with learning disabilities. But, Arnold asks for something more than Guckenberger. It seeks special considerations within the context of selecting scholarship recipients. I did not find any corresponding cases within the United States. However, several of the employment cases discussed in Chapter IV provide clear guidance on the approach probably favoured by US courts. In the United States, the courts tend to regard the ADA as a non-discrimination statute, nothing more, and “additional” consideration for jobs, promotions or presumably for scholarships, would be regarded as something more. 70

Ibid. at 592 (the nature and extent of accommodations given to the plaintiff during his academic studies is not clearly defined within the case discussion; however, it is clear that he did not always take advantage of opportunities for accommodation because of concerns about stigma, especially during his LLM studies at the University of Ottawa). 71 Ibid. at 605. 72 Ibid. at 606. 73 Ibid. (devising accommodations was SSHRC responsibility, at least in the first instance, subject to further review by the courts, if necessary).

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Specifically, it would be seen as a form of affirmative action. In the United States, Mr. Arnold would almost surely lose his case, precisely on the same grounds articulated by the SSHRC, prejudice against nonlearning disabled applicants. In fact, in the United States, Mr. Arnold’s case might never reach the issue of accommodations. US courts would closely scrutinize his disability. He would most likely be deemed “not substantially limited” and, therefore, determined to have an impairment insufficient to warrant coverage by the ADA. Like the employment experience described in Chapter IV, Canadian courts appear to utilize a more expansive interpretation of disability, discriminatory conduct and reasonable accommodations when dealing with issues involving learning disabilities. However, because Canadian courts have only limited experience with these issues, we cannot conclude with any certainty how the courts in Canada will deal with learning disabilities. It will be interesting to follow future litigation in this area.

Academic Accommodations and the Substantially Limited Clause Resistance to accommodating disabilities in education is, of course, not limited to learning disabilities. Once admitted to a program of higher education, disputes arise around the issue of accommodations and the schools find successful defences in the substantially limited clause of the ADA. Typically defendants argue the person claiming a disability is not protected by the ADA because they are not substantially limited in any major life activity, in comparison to the average person in society. In Salehpour v. University of Tennessee,74 a first year dental student argued that vision difficulties necessitated sitting in the back row of the classroom. He found that sitting some distance from the blackboard (and the front of the classroom) enhanced his view of the teaching materials used by professors.75 He stated that by “seeing better ... [it] increased his concentration and enhanced his learning.”76 However, a School policy stated that first year dental students were barred from sitting in the back

74 75 76

159 F.3d 199 (1998). Ibid at 202. Ibid.

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row of the classroom.77 Nevertheless, the student ignored the School’s policy and sat in the back row of his dental classes. He was admonished repeatedly by his professors for sitting in the back row.78 He was subsequently threatened with physical removal. His persistence was deemed disruptive to the class.79 This was especially true when professors would stop teaching and argue with the plaintiff about where he was sitting. His professors found his actions to be consistent with charges of “misconduct and unethical behaviour” as defined in the student handbook. The school set up a meeting with him to discuss his continuing violations of the “back row rule.” The plaintiff reiterated his concerns about his vision both in writing, in telephone conversations prior to the meeting and orally during the meeting.80 The plaintiff’s appeal on sitting in the back row was rejected as were his subsequent appeals. He resigned from the dental program toward the end of the semester in a letter where he also claimed head, neck and spinal problems.81 He then took action against the school.82 The court dealt with his claims of disability in a cavalier manner. The court called the plaintiff’s disability claim “disingenuous” and stated that the plaintiff did not inform the defendant of the disability problems until after he resigned. This was clearly not the case. The court’s own description of the facts of the case show that the plaintiff sought on a number of times, early in the semester, to inform the faculty and administration that his request was based on his vision difficulties.83 The court dismissed the plaintiff’s vision needs as insignificant. 77

Ibid at 201 (apparently a number of the courses in the dental program included a mix of first year dental students and students in subsequent years; the “back row rule” allowed only the students in subsequent years seating in the back row of the class). 78 Ibid at 201; (the student handbook was called Centerscope and the court made a citation to page 74 of the book). 79 Ibid; (the plaintiff’s professors seemed to take his sitting in the back row quite seriously, so much so that they asked him to leave and initiated confrontations with him during the class). 80 Ibid. 81 Ibid at 203. 82 Ibid (claim was for discrimination on the basis of national origin (Iran), physical disability, free speech, due process and equal protection violations; it is unclear for the information contained in the published ruling whether the plaintiff submitted any evidence of his vision problems). 83 Ibid at 201-02 (vision problems were complained a number of times; the

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The case demonstrates one the problems with the ADA’s “substantially limited” clause. The plaintiff’s vision problems are not trivial because they impact his ability to learn in the classroom. Nevertheless, the ADA requires a comparison to the average person in the population. It is not likely that his vision is “substantially limited” in comparison to the average person. In fact, his vision was relatively good. Consequently, there is no ADA protection for the plaintiff. However, if we assume protection for the plaintiff, the result could be quite different. The dental program’s “back row rule” could not be construed as so fundamental to the program that accommodations must be denied. I think it would be a real stretch to say that the rule is fundamental to the teaching of dental medicine. The entire case was wholly unnecessary. The professors chose to be confrontational on a minor issue and the skirmish escalated. As a result the plaintiff lost his position in the dental school, he lost his case in the District Court,84 and lost again on appeal to the Sixth Circuit Court,85 and, on a writ of certiorari to the United States Supreme Court, his appeal was denied once again.86 The case manifests a need for flexibility in dealing with questions of disability, irrespective of whether the disability in question is relatively minor or quite significant. The structure of the ADA and its “substantially limited” analysis does not easily lend itself to the needed level of flexibility.87 Pacella v. Tufts University School of Dental Medicine88 is another good example of the restrictive interpretations courts have applied to the “substantially limited” clause of the ADA when dealing with questions of disability in professional academic settings. The case also nicely illustrates how recent Supreme Court rulings involving mitigation head, back and spinal problems were raised in the resignation letter) Ibid at 206. 84 Ibid at 199 (District Court decision is an unpublished opinion). 85 Ibid. 86 119 S. Ct. 1763.(writ of certiorari denied). 87 Cheryl Anderson, “Deserving Disabilities: Why The Definition of Disability Under the Americans with Disabilities Act Should be Revised to Eliminate the Substantial Limitation Requirement” (2000) 65 Mo. L. Rev. 83, 85, 150-51 (arguing that the substantial limitation requirement narrows the definition of disability too far so that those with legitimate, but lesser disabilities, cannot be accommodated; Anderson notes that this argument is not meant to diminish the position of those with severe forms of disability who often suffer much greater isolation because of disability). 88 66 F.Supp. 2d 234 (1999); 139 Ed. Law Rep. 425.

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measures have affected disability analysis. In this case a dental student with significant vision problems was dismissed from the medical school for poor academic performance. He sued for violation of the ADA, the RA, breach of contract and violations of state legislative actions intended to protect the “handicapped.”89 At the time of his application to the school, the Assistant Dean of Admissions, and apparently other professors as well, expressed reservations about his admission saying that he could not “make it academically.” However, the plaintiff was accepted by the medical school in spite of amblyopia of his left eye due to severe myopia. Even with the use of corrective measures the condition of his left eye remained so poor that he was “essentially monocular with his right eye.”90 He also had vision difficulties with his right eye. However, the vision in his right eye could be largely corrected with diopter glasses, contact lenses and occupational bifocals. Nonetheless, he still experienced depth perception problems, reduced contrast vision and images minified by 25 percent. His contacts were the best corrective measure at reducing the minification problem. His bifocals addressed his need to discern detail. He also developed various coping strategies to deal with his depth perception difficulties. Hence, the use of various remedial devices and mitigation measures essentially gave the plaintiff almost 20/20 vision in one eye. In terms of the plaintiff’s academic performance, his vision difficulties, especially his problems with depth perception, caused him to work at a slower pace than his non-vision impaired classmates.91 In spite of his remedial efforts, he still had difficulties seeing the blackboard and seeing the images produced by overhead projectors.92 He maintained that his vision problems substantially limited the major life activities of seeing and learning. Based on the description offered by the court, it would seem that the plaintiff had a disability which substantially limited the major life activities of seeing and learning. Tufts dismissed the plaintiff in 1997 for inadequate academic performance. During his time in the medical school, the plaintiff took 37 courses and failed 7. The plaintiff alleged the school failed to accommodate his disability and failed to follow the normal dismissal process as provided for in the student handbook. The court found for the 89 90 91 92

Ibid at 234, 236. Ibid at 237 (quoting expert testimony, McGuire Aff., Ex. 5). Ibid. Ibid.

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defendant. The court’s evaluation focussed on the nature of the plaintiff’s disability, the remedial devices and mitigation measures used by the plaintiff to minimize the effect of his disability and concluded that the plaintiff’s impairment did not sufficiently limit any major life activity. The court did not evaluate any accommodations offered by the school, noting that the first step in this kind of claim is the need to establish whether the “disability” in question is covered by the ADA. The court noted that the plaintiff was able to carry out required tasks at a speed that was only “somewhat slower” than his classmates. This degree of impairment did not significantly increase the amount of time required and thus supported the view that the plaintiff was not substantially limited in comparison to the average person. Thus, accommodations were deemed unnecessary. The reasoning also relied upon recent decisions by the Supreme Court on the question of mitigation measures.93 In Sutton v. United Airlines Inc.,94 the Court asserted that “those whose impairments are largely corrected by medication or other devices are not ‘disabled’ within the meaning of the [ADA or the RA].”95 Moreover, in Albertsons, Inc. v. Kirkingburg,96 the Supreme Court stated that the assessment of a disability must consider the use of corrective and mitigating measures including “measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body’s own systems.”97 The Pacella court applied these directives to the case and found that, with corrective devices, the plaintiff’s vision was only somewhat

93

Ibid. 119 S.Ct. 2139 (1999) (myopic pilots not covered by ADA because condition is mitigated by eyeglasses). 95 Ibid at 2148. 96 119 S.Ct. 2162 (1999) (truck driver with monocular vision not substantially limited and not covered by the ADA because his brain has made compensatory adjustments to deal with the vision and depth perception problems imposed by his disabling condition; a condition that makes one “different” such as the plaintiff’s monocular vision is not enough; the impairment must be “considerable” and the impact on a major life activity must be “significantly restricted.” Sutton, 119 S.Ct. at 2150-51). 97 Ibid at 2169. 94

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reduced.98 Compared to the average person his vision was not “considerably limited” or “significantly restricted.”99 In addition, the court noted that he only had “some” problems with the blackboard and the overhead projector, and that he was only “somewhat” slower than his classmates. The court also noted that he passed 30 out of 37 medical courses and concluded that he was intelligent. If one can pass most of the required medical courses, the court reasoned the alleged vision handicap did not greatly impair his capacity to learn.100 Thus, his vision difficulties did not substantially limit the major life activities of seeing or learning as compared to the average person in the population and so he could not claim to be disabled under the ADA.101 The court’s trivialization of the plaintiff’s vision difficulties can only be described as extraordinary. 98 Lauren J. McGarity, “Disabling Corrections and Correctable Disabilities: Why Side Effects Might Be the Saving Grace of Sutton” (2000) 109 Yale L. J. 1161 (the decision in Sutton allows courts to consider the side effects of any efforts to correct for a disability; although I am not in agreement with the author on the value of the side effects analysis, in Pacella the side effects of the plaintiffs’ corrective efforts should be taken into account, the need to use the appropriate corrective technique at the needed time and the imperfections in the corrective measures taken; however, I think this court would still conclude that the side effects were insufficient to support a substantially limited analysis). 99 Pacella at 239. 100 According to the court, the plaintiff Pacella was only somewhat limited after the application of his mitigation and corrective efforts. For an interesting case that applies the “side effects” analysis for disabling corrections for a plaintiff “somewhat” limited by a learning disability and with a different result, see, Garica v. State University of New York Health Sciences Center at Brooklyn, WL 1469551 (E.D.N.Y. 2000), 19 NDLR 57 (in Garcia, a medical student with a learning disability sought accommodations after failing some courses; accommodations were offered but there was a dispute over the extent of the accommodations. Then as the case proceeded toward trial, the defendant argued that the plaintiff’s LD could be mitigated by ritalin. The court rejected the plaintiff’s argument say that “whether a person has a disability under the ADA is an individualized inquiry” and the court cannot speculate as to whether the mitigation measure (the medicine) would actually improve the disability. The court noted that ritalin usage can have a range of serious side effects and these effects together with the uncertainty of its value cannot bar the plaintiff’s status as a disabled person qualified for protection under the ADA. Ibid at 8. Unfortunately, the plaintiff lost his case because the court decided that the requested accommodations were too significant). Ibid at 11. 101 Ibid.

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The court further noted that, even if the disability was sufficient to warrant protection, the impairment did not substantially limit any major life activity connected with college education.102 The court seemed to be saying that Pacella’s vision impairment, even if found substantially limiting, did not impair his ability to learn. As evidence of his capacity to learn, the court pointed to the fact that he passed most of his medical exams. The judge also contended that the inability to pursue a chosen career does not constitute a severe impact on an individual’s life for the purpose of establishing a disability under the ADA.103 The ADA does “not guarantee an individual the exact educational experience that he may desire, just a fair one.”104 Just what exactly is a fair education and once a so called “fair education” has been obtained, then may discriminatory conduct be justified? This reasoning suggests that once a “fair education” has been acquired, then discrimination denying further education might be lawful. This is analogous to saying that a disabled person is entitled to a decent job, but once employed in a “fair” position, and then discriminatory conduct to deny career advancement is entirely acceptable. This preposterous reasoning seems to actually endorse discrimination on the basis of disability.105 The most significant question in the analysis is never 102

Ibid; citing, Knapp v. Northwestern Univ., 101 F.3d 473, 481 (7th Cir. 1996) (stating that “an impairment that interferes with an individual’s ability to perform a particular function, but does not significantly decrease that individual’s ability to obtain a satisfactory education otherwise, does not substantially limit the major life activity of learning.”). 103 This language is similar to the “one job rule” which is part of the ADA’s Title I language for employment discrimination. One has to be excluded from a class of jobs to have a claim of disability discrimination against an employer. The courts have used this “one job rule” in a fashion that is very destructive to employment discrimination claims. Although Titles II and III do not use the specific terminology “one career rule,” in Pacella, the court improperly imports this reasoning from the relevant ADA employment provisions. Thus, if one is studying for one specific career, the student could be denied accommodations on the basis that the ADA does not guarantee access to one career. Presumably, one would have to be denied access to a class of careers on the basis of disability. Fortunately, this bizarre “one career” reasoning has not been applied in other ADA education cases. 104 See, Knapp v. Northwestern Univ. 101 F.3d 473,481 (7th Cir. 1996). 105 This limited perspective on the reach of non-discrimination is consistent with Richard Epstein’s idea of grants to selected private industries to create an

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reached, whether the accommodations sought would reduce the alleged learning problems.106 If accommodations were given to Pacella, he may have passed all of the required exams. Instead the court states that the fact there were only 7 failures, is a level of performance that demonstrates an absence of a substantially limiting impairment. Therefore, the denial of accommodations is permissible and the court endorses the dismissal of Pacella for poor academic performance. The court’s reasoning reduces the ADA to a meaningless statute. Interpreted this way, the ADA cannot protect anyone. Plaintiffs will almost always be either not “substantially limited” or not a “qualified individual with a disability.” Litigation pertaining to the denial of accommodations in Canada, although quite limited in comparison to the voluminous US experience, has produced a different line of reasoning. It seems that in Canada, when one seeks an accommodation for disability, there is generally an effort to provide the person with some measure of accommodation. For example,

environment (and accommodations) for the disabled. Those with disabilities would be channelled into these specially selected positions, while the rest of society could then freely discriminate against the disabled. See, Forbidden Grounds at 193-4. 106 There must be a match between the disability and the accommodations sought and the effort to provide real accommodations must be genuine. Failure in this regard will contribute to either student or professional failures. A recent case, Powell v. National Board of Medical Examiners et al., medical student with a learning disorder was extended privileges but not the accommodations she needed on examinations in medical school. 364 F. 3d 79 (2004). The National Board also denied accommodations. The court expressed doubts as to whether the student had any learning disorder. Even if she did, the court said that she was not “otherwise qualified” for Step 1 of the National Boards because she did not pass her final medial school exams (taken without the accommodation of extra time). Further, it was noted that in high school and college she had “average” grades thus, the student was not substantially limited in a major life activity). Ibid at 8289; see also, Marlon v. Western New England College, WL 22914304 (D. Mass.). In Marlon, a law student with a learning disability and other disabilities was denied a variety of accommodations needed for academic success. Plaintiff argued that she had substantial limitations in the major life activities of learning and working. Court found that learning was not substantially limited in comparison to the average person and also, that working was not substantially limited because of past employment success as a paralegal and there was no evidence of limitation in a range of jobs. Ibid 6-8.

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in Harris v. Camosun College (Lansdowne Campus),107 a student plaintiff claimed multiple environmental sensitivities to paints, gases, plastics and carpets. The school offered a variety of accommodations such as a notetaker, taping of some classes in lieu of actual classroom attendance, and the provision of a separate room for examinations. However, the school also determined that in classroom attendance was essential for one course in order to satisfy the goals and objectives of the academic program.108 The school provided many of the requested accommodations and the school simultaneously sought medical documentation to support the existence of the various disabilities. The plaintiff was unable to provide any relevant documentation.109 Nonetheless, the school still “went to great lengths to assist the complainant” in both her course and laboratory work.110 The complainant remained unhappy with the degree of accommodations provided and the continuing requests for medical documentation. She regarded the requests for documentation as a form of abusive badgering and subsequently she filed a complaint with the Human Rights Commission on the basis of discrimination, failure to accommodate and harassment. The tribunal found that supportive medical documentation was necessary to assure Disability Support Services funding from the Department of Education. In addition, documentation was necessary because it provided the basis for developing and structuring appropriate accommodations. There was no evidence that the College discriminated against her on the basis of her disability. Rather, the college went to great lengths in their efforts to accommodate the student. The tribunal noted that while accommodations must go to the point of undue hardship as per the requirements of Meiron, the requested accommodations must also be reasonable. It held that, attendance at the one class in question was a necessary part of the program, the medical documentation regarding the disability was compulsory and found that the school did not act in a discriminatory fashion. 107

(2000), 39 C.H.R.R.D/36, 2000 BCHRT 51. The course in question required classroom presentations and classroom discussions about the presentations. Ibid. at D/37. 109 The plaintiff supplied a letter from a doctor about allergies to cats and house mites, and a second letter from a doctor with no expertise in environmental or chemical sensitivities. Ibid. at D/40. 110 Ibid. at D/41. 108

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In the United States, the Harris case would not be heard; it would most assuredly face an early dismissal. Most American courts would not regard Ms. Harris’ “environmental disability” with much credence. The nature of her disability would be explored in-depth and she would be found “not substantially limited” and not protected by the ADA. In Canada, the focus of the analysis is not so much on the disability itself, but the nature, extent and appropriateness of reasonable accommodations. A case in point is Arnold v. Canada, discussed at some length in the previous section. In Arnold, the court did consider the nature of the plaintiff’s learning disability, however, like the analysis in Harris, the focus was not on dissecting the nature of the disability. Rather, the analysis concentrated on whether accommodations were appropriate. In Canada, a plaintiff must show some evidence of a disability, not an impairment that “substantially limits” in comparison to the “average person.” Under an ADA analysis, US courts would find Mr. Arnold “not substantially limited” in comparison to the “average person.” Mr. Arnold was a doctoral student in law. Clearly, the courts would reason that Mr. Arnold could not be regarded as substantially limited in the major life activity of learning. Instead of being limited, his significant academic accomplishments demonstrated a capacity to learn at a degree much greater than that of the average person. In the United States, Mr. Arnold’s case would be dismissed because the degree of his disability would be insufficient to warrant coverage by the ADA. Similarly, in Berg v. University of British Columbia,111 a graduate student studying in the School of Family and Nutritional Sciences suffered from recurrent depression which was mitigated by medication. In spite of the depression problem, her academic performance was above average and she was regarded as a good student. During a recurrence of the depression she wrote on the school’s washroom mirror “I am dead”. Later in the day she saw security and tried to escape by jumping through a glass window. After this incident, there were no more problems and she continued her normal study curriculum. About a year later, the appellant sought to fulfil the requirements for a Canadian Dietetic Association hospital internship. 111

(1993) 102 D.LR. (4th) 665 (reversing the British Columbia Court of Appeal); 81 D.L.R. (4th) 497, 1 W.A.C. 58, 56 B.C.L.R. (2d) 296, 27 A.C.W.S.. (3d) 285 (upholding a judgment of Lander J.); 10 C.H.R.R. D/6112 (setting aside the decision of the British Columbia Council of Human Rights); 9 C.H.R.R. D/4673 (which held the the respondent university has discriminated against the enrolled student on the grounds of her disability). Ibid, at 670.

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To comply with the application requirements, a rating sheet had to be completed by the faculty. The responsible faculty member refused to complete the sheet and the student was denied entry into the dietetic internship program.112 The rating sheet was not completed because of the faculty member’s “observation of [Berg’s] behaviour and her problems.”113 About the same time, the graduate program moved to a different building and Ms. Berg was denied a key to the premises in spite of the fact that all other graduate students were supplied with keys and assurances from her doctor that there was no risk. The member-designate of the British Columbia Council of Human Rights found the refusal to complete the rating sheet and provide a building key to be a contravention of Section 3 of the British Columbia Human Rights Act.114 The British Columbia Supreme Court set aside the member-designate decision and on appeal to the British Columbia Court of Appeals, the court dismissed the petition. The Supreme Court of Canada reversed and found that the University’s actions did indeed amount to discrimination on the basis of a mental disability and moved to quash the decisions of the BC Supreme Court and the Court of Appeals.115 The analysis undertaken by the SCC focussed on determining the appropriate standard of review,116 the need to give “broad, liberal and purposive”117 interpretation to human rights legislation, defining “public accommodations”118 and determining when services are “customarily available”119 to students. These same issues may sometimes be discussed by American courts, particularly when assessing the degree of discretion to be given to the evaluations and decisions of academic decision makers. However, the focus of the assessment of this and similar cases by American courts would be very different. In the United States, Berg would almost assuredly lose her case.

112

The rating sheet was considered by the court to be like a transcript and testimony during the trial revealed that the no one had ever been denied a rating sheet in the past. 102 D.L.R. (4th) at 671. 113 Ibid. at 670. 114 9 C.H.R.R. D/6112. 115 102 D.L.R. (4th) at 666. 116 Ibid. at 676. 117 Ibid. at 678-80. 118 Ibid. at 689-90. 119 Ibid. at 690-93.

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American courts would probably scrutinize Berg’s disability in preposterous detail, all for the purpose of determining whether her impairment was one that “substantially limited” her in a “major life activity.” Any identified limitations would be assessed by comparing her capabilities in selected major life activities to the capabilities of the average person. If substantial limitation is found lacking, then the person will be deemed insufficiently restricted to be covered by the ADA. Berg was a good graduate student, better than average. In addition, the incident at the school was a one time occurrence.120 US courts would find this to demonstrate a lack of substantial limitation. Moreover, Berg’s depression was controllable with medication. As discussed elsewhere in this thesis, the United States Supreme Court has determined that disabilities controlled by medication or other remedial means to be impairments insufficiently substantial to warrant protection under the ADA.121 In the United States Berg would have no claim. This underscores one of the great dilemmas of the “substantially-limited” clause of the ADA. It encourages defendants and courts to focus on the disability and diminish the impacts that impairments have on one’s capacity to function in daily life. The result is a disproportionate number of claims that are dismissed early in litigation or denied.

Breach of Contract and Breach of Promises to Accommodate Students with disabilities have occasionally tried to use contract law as a means of enforcing promises of reasonable accommodation and other educational services.122 Most of these promises are made in promotional 120

During the trial, the statements of a physician were used to show that there was “no risk” in giving a key to Berg. While the issue of risk goes directly to safety and direct threat, it can also be used to demonstrate that Berg’s alleged disability was one that did not substantially limit a major life activity. Ibid. at 671. 121 See, Sutton v. United Airlines, 527 U.S. 471, 119 S.Ct. 2139 (1999); Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162 (1999); Murphy v. United Parcel Service, 527 U.S. 516, 119 S.Ct. 2133 (1999) (also discussed herein as the Supreme Court’s trilogy of cases dealing with mitigation measures). 122 Hazel Glenn Beh, “Student versus University: The University’s Implied Obligations of Good Faith and Fair Dealing” (2000) 59 Md. L. Rev. 183 (calling for the courts to afford less discretion to universities in terms of any promises made in student handbooks and other written materials and give courts “an appropriate role that allows the right mix of discretion and accountability” and

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materials used by schools, in admissions information booklets and in student handbooks. Failure to live up to the statements made in these materials may result in accusations of breach of contract. This discussion describes the American experience only because Canadian disability cases charging breach of contract were not found. Of course, this does not mean that breach of contract claims are not relevant to the Canadian experience. The relevance is in the lessons offered by the US experience. Hazel Glenn Beh has described how academic institutions seek to preserve decision making autonomy and maintain control over the academic objectives of their programs. Beh reports how the courts give postsecondary institutions extreme deference when examining their commitments to students. She notes that catalogues, promotional and admissions materials, student handbooks and other promises often “disclaim liability and reserve the right to change anything about the program without notice.”123 The disclaimers are so broad that in the end the educational facility promises prospective students virtually nothing. Nonetheless, the courts have found in some instances that bulletins and handbooks do create a student-institution contract.124 But, the recent trend has been to give greater deference to university decision makers. This has been particularly true in cases involving disability discrimination. Two influential cases discussed above involved breach of contract issues together with discrimination claims. Recall that in Guckenberger v. Boston University, students with various learning disabilities challenged changes to the school’s learning disability support services system. The students claimed that the University broke specific promises made with respect to the accommodation of disabilities in violation of the ADA and the RA. With respect to the breach of contract claim, the plaintiffs argued that the University promoted their programs through materials offering “reasonable accommodations in testing and coursework” and the

“asking schools to abide by the standards in the educational community and to refrain from decision making for improper motives...” Ibid at 244). 123 Ibid at 190. 124 See, Zumbrun v. University of Southern California, 101 Cal Rptr. 499, 504 (Ct. App 1972) (arguing that catalogs and handbooks become part of the university-student contract); see also, David Davenport, “The Catalog in the Courtroom: From Shield to Sword? (1985) J.C &U.L. 201, 202 (a cautionary note: cases finding contract in these instances tend to be older cases and the trend is toward considerable deference to university decisions).

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employment of a “highly trained staff” of disability support workers.125 The very specific nature of some of these promises was noticed by the court. The court summarized the specific promises broken: BU made specific promises to [three students] and reneged on its representations. Rather than the promised course substitution for her foreign language obligation, BU required LaBrecque to take Swahili, a language that had both an oral and written component. Greeley labored from August until December of his freshman year without LDSS support and, just prior to finals, he was informed that his request for accommodations had been denied because of inadequate documentation. When Guckenberger sought to submit her learning disabilities specialist’s evaluations so that she could get exam accommodations during her second year of law school, she was told that she would have to be completely retested for dyslexia within the three weeks prior to exams.126 With respect to the more general promotional materials used by BU, the court did not make any specific ruling as to whether they constituted a contract. Rather, the court simply stated that there was no indication of any offer by the institution, or any acceptance or reliance by the students. Moreover, the court noted that the printed materials in question were more likely received after the students had made their decision to attend BU.127 The court distinguished the general promotional brochures from the personal letters to the plaintiffs about accommodations and other written and oral promises. These latter promises were enforceable contractual obligations. BU’s specific retraction of such accommodations was found to be a breach of contract law.128 The contractual obligations imposed on Boston University in Guckenberger are quite different from the highly deferential posture given to Tufts University in Pacella.129 Recall Pacella was the monocular dental student who was expelled from the school on the basis of poor academic performance. He argued that there was a contract between himself and the 125 126 127 128 129

Guckenberger III, at 151. Ibid at 152. Ibid at 151. Ibid. Pacella, 66 Fd. Supp. 2d 234.

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school on the basis of provisions in the Student Handbook. The provisions in question governed the dismissal of students for poor academic performance.130 Pacella’s dismissal bypassed key requirements described in the Handbook. He argued that, as a disabled person, he was treated differently than other students who face dismissal charges. The Court disagreed saying that the Handbook was not contractually binding on Tufts.131 The Court stated that Tufts had the right to make unilateral changes to the procedures in the Handbook without notice.132 Further, it was noted that the provisions of the Handbook were not express terms of a contract between the parties and, thus, Tufts only had to “show that its dismissal of Pacella was neither arbitrary or capricious.”133 Moreover, the Court found that there was no “evidence of bad faith or improper motive.”134 Consequently, because Tufts had the power to change the Handbook without notice and that such an act was done without improper motive, there was no breach of contract by circumnavigating the procedural guidelines contained in the Student Handbook.135

130

Ibid at 236. Ibid at 240-41 (the court cites a number of cases in academic settings, where the terms of a student handbook were found to be contractually binding on the parties; he also acknowledges that Guckenberger held that in some specific instances, the terms contained in various brochures could be considered as a contract; nonetheless, the court dismissed these cases and found direction in employment law where the terms of personnel manuals and other employment brochures were not contractual because there was no offer, no negotiation, no special attention called to the manual and the manual was not signed by the plaintiff; see, Jackson v. Action for Boston Community Dev., 403 Mass. 8, 14-15 (1988), 525 N.E. 2d 411). 132 Ibid at 240-241. 133 Ibid at 241. 134 Ibid at 241-42 (cited as the standard to apply in the absence of express terms). 135 Ibid; (it is interesting to note that even in the event there was a finding of improper motive by Tufts, such as dismissal on the stereotypical view that his disability would not allow him to be successful in the dental field, there would still be no finding of discrimination because the plaintiff was found to be “not substantially limited” and thus not sufficiently disabled to be protected by the ADA and the RA) Ibid at 237-39. 131

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In summary, the courts seem to require very specific and very precise evidence of offer, acceptance and reliance before finding the existence of a contract. Moreover, any introduction of vagueness in contract formation will encourage the courts to find the elements of contract formation missing. For students with disabilities, broad statements in promotional materials regarding accommodations are likely insufficient to support breach of contract claims. However, specific promises to individual students may be contractual. Canadian courts have not faced these issues and it is difficult to speculate about how they might find in these cases. But, it is reasonable to say that Canadian courts would not rely on reasoning and produce findings more restrictive that those shaped by US courts.

Judicial Deference Toward Academic Decision Making Closely connected to this dismissive attitude toward promotional materials and handbooks in breach of contract claims is a broader judicial deference toward academic decision makers in all matters relating to disabilities and accommodations. The problem of evaluating disabilities in order to determine whether one is “otherwise qualified” as well as the appropriateness of any selected reasonable accommodations are issues of increasing importance in disability jurisprudence. When these decisions are questioned, there is the crucial problem of determining the degree of deference that should be given to the decisions of university and college administrators. Traditionally, great deference has been afforded to academic institutions in their assessments about the appropriateness of any proposed accommodations. Universities argue that they are best equipped to assess whether any requested accommodations undermine the essential academic standards of their programs, not the courts. An early Rehabilitation Act case, Southeastern Community College v. Davis,136 demonstrates well the deference given to an institution in the determination of whether a disabled applicant is “otherwise qualified.”137 136

442 U.S. 379 (1979). Under the Rehabilitation Act, Section 504, “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...”, 29 U.S.C. § 794(a) (1994). 137

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The nursing school at the college denied Davis, an applicant, admission to the clinical nursing program because she was deaf. The school based the denial on her inability to hear and understand oral communication without lipreading.138 In addition to admission, she also sought accommodations to facilitate her full participation in the nursing curriculum.139 The court deferred to the school’s analysis.140 The court reasoned that the accommodations necessary to ensure Davis’ full participation, such as sign language interpreters and course waivers in clinical courses, would be so significant that they would constitute a fundamental alteration to the teaching program.141 The court concluded that such extensive accommodations were more that what was required by Section 504 of the Rehabilitation Act.142 The court deferred to the School’s reasoning without any particularized inquiry into the validity of the reasoning.143 138

The use of lipreading produces some interesting thoughts on the issue of mitigation measures. If Davis was litigated under the ADA and the present day US Supreme Court ruling on mitigation measures as delineated in Sutton, would self accommodating with lipreading as a mitigation measure cause one to be deemed “not substantially limited” and, thus, deny a deaf person ADA coverage? Absurd? Not really. It is consistent with a reasoning in many recent ADA cases involving a wide range of disabilities. Of course, it could be argued that lipreading is not a complete self accommodation to deafness and that the negative side effects of the corrective efforts include missing conversations outside of one’s direct vision. So it might be argued that the disabling side effects of corrective measures might be sufficiently imperfect that a disabled person would remain “substantially limited” a thereby be protected by the ADA. See, Lauren McGarity, “The Side Effects Analysis: The Saving Grace of Sutton.” 139 Davis, 442 U.S. at 408-09. 140 Ibid at 407 (the defendants supported their claim in trial by presenting testimony that the ability to hear and understand oral communication was a reasonable physical qualification for admission to the program). 141 Ibid at 409-10. 142 Ibid. 143 See also, Doherty v. Southern College of Optometry, 862 F.2d 570, (6th Cir. 1988) cert. denied, 493 U.S. 810 (1989) (another Rehabilitation Act case deferring to the School and dening accommodations. The plaintiff with certain vision and motor skill problems sought a course waiver for a required course in which it was necessary to use instruments that he could not use. The instruments were rarely used in optometry practice, unnecessary for practice and in fact were banned in several states; nonetheless, the court deferred to the School and denied accommodations. The student was denied his degree).

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In Wynne v. Tufts University School of Medicine144 a medical student with a learning disability that included dyslexia, claimed the college did not sufficiently accommodate his disability by modifying the format of multiple choice exams. His dyslexia caused him great difficulty in functioning on all multiple choice tests. As a result he failed exams and the School was in the midst of dismissal procedures. The court based its decision on Davis and a number of other similar cases. In summary, the court found that Tufts had considered all the necessary reviews for the court to defer to the academic decision making process. Drawing on Davis, the court noted that, in decisions of this kind, if the School is to prevail it must consider alternative means of testing, explore the feasibility of changes, and consider the costs and effects on the academic programs. Only after a consideration of these factors could it defend its decision not to modify the multiple choice format of testing, based on the ground that, accommodations would entail a lowering of academic standards or a substantial program alteration.145 The case was remanded for additional fact finding and decided in Wynne II.146 The lower court did carefully consider whether reasonable accommodations were provided and in fact did find that Tufts offered a number of accommodations to the student including special examination conditions.147 However, in my view, the court did not explore the issue of whether a change in format, from multiple choice to another alternative such as an essay format would be a reasonable accommodation. The School simply stated that such changes would constitute a reduction in academic standards.148 Tufts outlined their prior efforts to accommodate 144

Wynne v. Tufts University School of Medicine, 932 F.2d 19 (Ist Cir.1991) (en banc) (hereinafter referred to as “Wynne I”). 145 Ibid at 26. 146 Wynne v. Tufts University School of Medicine, 976 F.2d 791 (Ist.Cir. 1992) (hereinafter referred to as “Wynne II”). 147 Wynne II at 793. 148 Ibid. The case materials do not demonstrate any genuine consideration of alternative examination formats. The School just made a bald unsupported statement that formats other than the multiple choice format would be a fundamental alteration of the academic program. The unsupported statement was accepted by the court on its face. Actually, some professors prefer multiple choice formats because they are easy to grade quickly. Others prefer essay or short answer formats or some combination of formats. Oftentimes the format of exams changes from semester to semester as different professors cycle in and out of various courses. I think it is a stretch for any course instructor to insist that a

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the plaintiff and their reasons for not providing further accommodations.149 This was determined to be a sufficient showing of good faith toward Wynne.150 Thus, the decision to dismiss was rationally justified. The court held that it could rule as a matter of law on the issue of whether the institution had properly considered the requested reasonable accommodation.151 In short, the court deferred to the School’s decision without any in-depth consideration of whether the requested accommodation would assist the plaintiff because some accommodations were already provided and were sufficient to show good faith toward the plaintiff.152 Guckenberger provides additional insight into the question of deference. The decision in Guckenberger also involved deference toward the decisions made by academic administrators and it found valuable precedent in Davis and Wynne. As discussed previously, the case received great fanfare in the United States during the late 1990's. It involved Boston University’s highly regarded academic programs for people with learning disabilities. Boston University (BU)offered course substitutions for those with learning disabilities along with other reasonable accommodations. People with learning disabilities frequently find that courses in mathematics and foreign languages provide considerable obstacles to successful academic work.153 The University acted with generous sensitivity to these needs. BU imposed a general foreign language requirement for completion of degrees in the College of Arts and Sciences.

particular exam format is fundamental to teaching an academic program. What is worse is the unquestioning acceptance by the court. 149 Ibid. 150 Ibid at 795. 151 Wynne I at 26; Wynne II at 795. 152 Perhaps another way of looking at this is whether the duty is met so long as the court can conclude that the school was acting in good faith versus an alternative perspective, whether it requires the duty holder to meet an objective standard, such as a duty to provide accommodations to the point of undue hardship (the Canadian standard required to show sufficient effort to accommodate). 153 Guckenburger II, at 144; See also, American Psychiatric Association, “Diagnostic and Statistical Manual of Mental Disorders” (4th Ed. 1994) pg 50 (the manual is also referred to as the DSM; reading disorder is sometimes called dyslexia and the math disorder as dyscalcula).

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To accommodate those with learning disabilities, BU permitted course substitutions. However, when Jon Westling became BU President, he terminated all course substitution accommodations. The plaintiffs in Guckenberger challenged this refusal to consider course substitutions as a violation of the ADA and the RA. The court initially found that the plaintiffs had met their burden of demonstrating adequate evidence to support a finding that course substitutions were a reasonable accommodation for persons with certain learning disabilities.154 Westling’s blanket refusal to grant course substitutions did not follow the pattern described in Wynne in that a more diligent examination of the refusal to accommodate was required.155 Therefore, the Court accepted the Plaintiff’s argument that “any across-the-board policy precluding course substitutions” was discriminatory.156 But, instead of giving the plaintiff’s a victory on this issue, the Court gave the defendants a second chance to properly exclude the requested accommodation. The Court ordered BU to “undertake a diligent assessment of the available options”157 and “to propose within thirty days ... a deliberative procedure for considering whether modification of its degree requirement in a foreign language would fundamentally alter the nature of its liberal arts program.”158 In response, the Dean’s Advisory Committee (DAC) deliberated about the use of course substitutions as a reasonable accommodation as per the Court’s order. It then submitted a report to Westling in accordance with BU by-laws. The report recommended against accommodating persons with disabilities with course substitutions.159 The DAC concluded 154

Ibid at 147 (the court found that substitution might be appropriate for learning disabilities such as dyslexia, however, for other learning disabilities, such as dyscalculia, the court decided that course substitutions for required math courses were inappropriate). 155 Wynne I at 26. 156 Guckenberger II at 149 (following Wynne I, the court sought a thoughtful procedure for assessing the reasonableness of course substitutions rather than BU President Westling’s knee jerk unfounded negative attitude toward learning disabilities such as he so openly described in his speeches and stories about the fictitious “Somnolent Samantha”). 157 Guckenberger III at 85; citing, Wynne II, 976 F.2d at 795. 158 Guckenberger II at 154-55. 159 Guckenberger III at 87 (the DAC recommendation was recorded as “after extensive review and deliberation, the ... professional and academic judgment [of the DAC] is that the conjunction of the foregoing considerations ... entails but one

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the proposed accommodation would result in a lowering of academic standards and that course substitutions would constitute a substantial alteration of an essential element of BU’s liberal arts program.160 The court looked to see whether there was a sufficient deliberative decision-making procedure and applied the test used in Wynne I. This test essentially looks for an institution to demonstrate that the appropriate administrators considered alternative means, their feasibility, costs, and effects on the academic program. Any decision to deny accommodations, such as the blanket exclusion at BU, must be rationally justifiable in that the requested reasonable accommodations would either result in a lowering of academic standards or require substantial program alteration.161 On the question of course substitutions for the foreign language requirement, the court decided the BU deliberation met the requirements of the Wynne test. The court was satisfied that the proper faculty and administrators participated in discussions and considered possible alternatives. These deliberations, together with an open opportunity for students, (both those with learning disabilities and those without disabilities), to provide input into the process satisfied the court.162 The court stated that in keeping within the traditional judicial deference given to academic decision makers, the decision by BU to impose a blanket denial of certain accommodations should be given great deference by the court.163

conclusion: the foreign language requirement is fundamental to the nature of the liberal arts degree at Boston University. The [DAC] therefore recommends against approving course substitutions [as a reasonable accommodation] for any student as an alternative to fulfilling the foreign language requirements.”) Ibid. 160 Ibid at 88 (the court found value in the fact that the “deliberation” process not only included administrators and faculty members, but also included students. Apparently most of the students were opposed to the sought after accommodations for learning disabled students. The court noted that even student opinion found that the unique benefits of a foreign language could not be adequately addressed by alternative courses. It seems curious to me that non-disabled students should be permitted to provide their views on the appropriateness of accommodations for learning disabled students. They have no expertise or experience on which opinions might be based, other than their own prejudicial views). 161 Ibid at 85. 162 Ibid at 87. 163 Ibid at 89.

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Accordingly, once the DAC had shown reasoned deliberation by using a “professional [approach and determined by] an academic judgment that reasonable accommodation is simply not available,” the court reasoned the findings should be accepted on their face.164 The court stated that the DAC decision could only be overturned if there is “a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.”165 What is this vague professional judgment? The court provides no guidance. This is indeed, a very deferential standard. The plaintiffs argued that BU’s foreign language requirements were not practiced by the vast majority of other universities, including the leading schools in the United States. They also argued that the number of students to be accommodated was very small and so the academic program would not be effected and costs were virtually non-existent. Nonetheless, the court maintained that a rational decision is not necessarily the only possible decision and that academic institutions are not forced to fit their curriculum into a “cookie cutter mold.”166 The court further noted that these kinds of decisions dealt with issues of an academic nature and that “universities – not courts – are entrusted with making.”167 The court decided that the decision of DAC was rationally justifiable and concluded that the court should not interfere.168 164

Ibid at 89 (citing Wynne I at 27-28). Ibid. (quoting Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225 (1985)) (the reasoning amounts to what is in effect, proper procedure + good faith = unreviewable decision; the difficulty with this is that in the face of possible discrimination, the appearance of proper procedure and good faith should not be enough to warrant deference; additional scrutiny is necessary to ensure proper procedure and good faith in fact.). 166 Ibid. 167 Ibid. 168 Upon the court’s ruling, both sides proclaimed victory in the media. Guckenberger IV at 98; see, Jon Westling, “One University Defeats Disability Extremists,” Wall St. J., Sept 3, 1997 (upon winning on the issue of course substitutions as a accommodation, Westling declared triumph over the learning disability extremists - ignoring that BU lost on the more important issues in the case, the breach of contract claim and the discrimination claim. While course substitutions were rejected as an accommodation, other accommodations for students with LD could not be restricted and the court rebuked BU and Westling’s views as based on “uninformed stereotypes.”) Ibid at 110; see also, Patricia Nealon, “BU Loses Suit Brought By Students,” Boston Globe, Aug. 16, 1997 at B1 (quoting Attorney Wolinsky as saying the decision was a “ringing 165

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In 1996 Donald Stone conducted a study of law school accommodations for disabilities.169 The tone of his discussion suggests that he generally supported accommodations, however, he also expressed concern about a trend toward increasingly significant accommodations.170 In particular, he expressed concern about course waivers and degree requirement waivers. Given the reasoning in Guckenberger and Wynne, Mr. Stone’s fears have no basis. Schools will be able to deny these more significant accommodations, if the denial is rationally justifiable and arrived at through a deliberative process. The courts will offer great deference to academic decision makers on decisions regarding course waivers and degree requirements so long as there appears to be some sort of identifiable “deliberation.”

How Much Deference? And Implications The above discussion raises the spectre of different universities providing different reasonable accommodations for the same disabilities and even a possible inconsistency in the provision of accommodations among faculties within a single university. On this one particular issue, the use of course substitution as a reasonable accommodation, great deference is to be given to academic decisions. This deference is similar to the great deference given to Tufts University in Pacella v. Tufts University School of Medicine. In that case, a monocular student was dismissed without following the dismissal rules given in the Student Handbook. The difference between the two cases is that Pacella lost his breach of contract case. In Guckenberger, the plaintiffs won their breach of contract case based on the contractual promises to provide accommodations, including course substitutions. However, they lost on the right of the University to rescind course substitutions for incoming and future students

comdemnation” of BU’s conduct; his view is consistent with the court’s and the award of $ 1,300,000 in fees and costs to the plaintiffs certainly proves Westling wrong.) Guckenberger IV at 111, 112. 169 Donald Stone, “The Impact of the Americans with Disabilities Act on Legal Education and Academic Modifications for Disabled Law Students: An Empirical Study” (1996) 44 Kan. L. Rev. 567, 595 (he did conclude that law schools had responded fairly to requests for accommodations such as extra time on exams, but, also expressed concern about a possible more significant future demand for accommodations such as course waivers). 170 Ibid.

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so long as there was a rationally justifiable decision based on a deliberative procedure. In Pacella the decision to ignore the rules of the Student Handbook was clearly arbitrary. I think the level of judicial deference given to Tufts might best be regarded as extreme deference, not the great, but lesser deference shown in Guckenberger. Does this mean that if the majority of the faculty members discuss and agree to impose a blanket limit on other specific reasonable accommodations and “demonstrate” that the limits are rationally based, judicial deference must then bend to academic choice? Clearly a line must be drawn somewhere on deference with respect to accommodations. What is still unclear is where that line is and how great or extreme deference might effect the future delivery of accommodations to people with disabilities. In Wong v. Regents of U. Cal.,171 the Dean of the Medical School denied accommodations to a learning disabled medical student. The student sought extra reading time prior to his pediatrics clerkship.172 Although similar accommodations had been granted previously to the plaintiff, the Dean subsequently felt that the accommodation substantially altered the School’s standards. The lower court deferred to the Dean’s decision, reasoning that it was an academic decision and the court should not be involved. However, on appeal to the Ninth Circuit, the court found that “mere speculation that a suggested accommodation is not feasible falls short of the ‘reasonable accommodation’ requirements” of the ADA and the RA.173 Further, the court noted that the Dean failed to discuss the accommodation with any of the professionals who “had worked with Wong to pinpoint his disability and who help him develop skills to cope with it.”174 Similarly, in Zukle v. Regents of the U. of Cal.,175 another medical student with a learning disability was provided with extensive accommodations. In spite of these efforts, she was unable to perform satisfactorily in a number of courses. Therefore, she sought additional accommodations; including permission leave the clinical program early each day to pursue her studies and permission to interrupt studies in one 171

192 F. 3d 807 (1999); on appeal, No. 01-17432 (9th Cir. 08/18/2004). Ibid at 819 (the sought accommodation was actually quite significant, an eight-week reading period before the clerkship started). 173 Ibid. 174 Ibid. 175 166 F. 3d 1041 (9th Cir. 1999). 172

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clinical program while initiating study in another one. She also sought a deceleration of the clinical programs, over and above the deceleration already approved by the School. Unlike the decision in Wong, the court deferred to the decision of the medical program that such changes would have lowered the school’s academic standards.176 It would seem that where schools have gone quite far in providing accommodations for disabilities, then the courts defer to the school’s findings. If the plaintiffs cannot perform with accommodations, they are then considered “not qualified” for ADA protection.177 In McGregor v. Louisiana State University, a Fifth Circuit court called for “reasonable deference” in dealing with a request for accommodations from a law student with permanent disabling head and spinal injuries.178 The school provided some accommodations, however, it refused to make 176

See, American Bar Association, “Case Law Development, Education” (May/June 1999) 23 Mental & Physical Disability Law Reporter 334, 343 (discussing the extent of the plaintiffs accommodations and noting that with respect to interrupting one clinical program to start another one, the court stated that “[w]e defer to the Medical School’s academic decision to require students to complete courses once they are began and conclude, therefore, that this requested accommodation was not reasonable”). 177 These holdings are also consistent with the ruling in Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432 (6th Cir. 1998) (where a podiatry student with a learning disability was offered extensive accommodations and after two failed attempts to pass essential coursework, a third attempt was denied. This third attempt was denied even though the first attempt was done without any accommodation. The court simply deferred to the school’s rules for course attempts and found that waiver of existing rules was not necessary for the plaintiff. The court noted that “we should only reluctantly intervene in academic decisions ‘especially regarding degree requirements in the health care field when the conferral of a degree places the school’s imprimatur upon the student as qualified to pursue his chosen profession.’” Ibid at 437 (quoting Doherty v. Southern College of Optometry 862 F.2d 570, 576 (6th Cir. 1988); see also, Betts v. University of Virginia, 191 F.3d 447 (4th Cir. 1999) (learning disabled medical applicant denied on the basis of unaccommodated academic performance, where accommodations were provided performance was quite good; concurring judge is troubled by high level of judicial deference to the decision to deny admission, particularly due to the fact that the denial seemed to be based on the student’s unaccommodated academic performance). 178 3 F.3d 850, 859 (5th Cir. 1993) (citing “reasonable deference” as due to the academic institutions denial of accommodations, and upholding the refusal to accommodate).

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further accommodations for “fatigue and pain that impaired his ability to learn.”179 The student sought a part-time schedule and permission to do his examinations at home. The court determined that a full-time schedule and in-class examinations were reasonable “academic decisions,” accordingly, the term “reasonable” deference. But, I am not sure that reasonableness was part of the equation. The court accepted without question the School’s assertion that it was essential all students participate on an equal playing field. The court also ignored the fact that other respected law schools have part-time programs, permit students to participate with reduced class schedules and employ “take home” examinations on a routine basis. This so called “reasonable deference” might be better called “unreasonable deference.” Anne Dupre has examined these and other questions of deference to academic decisions involving disability.180 She believes that these great deference cases have an equal protection-like analysis in their rulings. The equal protection rational basis test almost entirely eliminates judicial scrutiny and schools can often make their accommodation decisions with little more than some rational basis for their decision. The courts will refrain from questioning a school’s judgment, unless it is clear that a decision has “no purpose other than to deny an education to a handicapped person.”181 The role of deference in disability decisions will continue to be significant although there may be some variance in the level of deference employed. But, so long as there is some rational basis for the decision, the courts are like to uphold decisions to deny accommodations and exclude people with disabilities when institutions deny requests.182 I think the court in Guckenberger also saw varying interpretations of deference as a possible problem. The court noted, quoting the decision in Cohen v. Brown University, that while “[w]e are a society that cherishes academic freedom and recognizes that universities deserve great leeway in their operations,” caution is necessary to ensure that “academic freedom

179

Ibid at 857. Anne P. Dupre, “Disability, Deference, and the Integrity of the Academic Enterprise” (1998) 32 Ga. L. Rev. 393. 181 Ibid at 413; citing, Doe v. New York University, 666 F.2d 761 (2nd Cir. 1981). 182 For additional decisions under the RA and ADA on admissions, academic modifications, and aids, see, Adam Milani, “Disabled Students in Higher Education: Administrative and Judicial Enforcement of Disability Law,” (1996) 22 J.C. & U.L. 989. 180

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does not embrace the freedom to discriminate.”183 The court did not mention that the decision in Cohen used yet another standard for the deference that should be afforded to academic decision making “substantial deference.”184 Consequently, in spite of the court’s admonition not to discriminate, the appropriate level of deference remains an issue. These different standards, together with the Guckenberger court’s use of deference for some accommodations and not for others,185 create an environment of uncertainty with respect to the appropriate level of deference for decisions on reasonable accommodations. This uncertainty has the potential of being used by institutions unfriendly to disabled applicants to either restrict or deny accommodations. To the best of my knowledge, there has been no effort to do this since the Pacella, Zukle, Wong and Guckenberger cases. Nonetheless, I do expect the issue of deference to be used again as a means of justifying the refusal of courts to overturn denial of accommodations. Deference will continue to be a big part of these cases. I believe the decision in Pacella was a bad one, particularly the court’s conclusion that Tufts University has the right to change the dismissal procedures contained in the Student Handbook, at will, without any notice.186 This is not the message of Guckenberger. Change requires a rationally justifiable deliberative procedure, still a highly deferential process, but one that at least requires some justification.

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Guckenberger IV at 89 (quoting the First Circuit in, Cohen v. Brown Univ., 101 F.3d 155, 185 (1st Cir, 1996) (a case charging gender discrimination by academic administrators, but also arguing that while deference is afforded to academic decisions, it should not be used as a means of permitting a “freedom to discriminate”). 184 Cohen at 172-73. 185 While deference was in order for the denial of course substitutions, it was not for the cut back in accommodations, such as extended time on examinations. 186 The decision in Pacella demonstrated a rather extreme case of deference to academic decision making, and as a result of its extreme nature, my guess is that it will not have any significant precedential value, at least insofar as the appropriate level of deference that should be afforded to academic decisions. Guckenberger and Wynne have much more value on the issues of deference. On the different issue of mitigation measures and the holding in Pacella may have some precedential value as it clearly demonstrates the application of the correctable disabilities ruling set out by the US Supreme Court in Sutton, Albertson and Murphy.

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Patricia Bors has discussed the confrontation between academic freedom and accommodating disabilities in her synopsis of Guckenberger.187 She has identified a number of implications for universities associated with this decision. With respect to the issue of deference, Bors summarizes the current state of appropriate deference: Davis established that a college need not make fundamental changes to coursework to accommodate a student with a disability, but it does not allow universities free reign to refuse accommodations. Wynne established that an institution must be able to show persuasively that a decision to deny a requested accommodation at a college or university was made only after reasoned, diligent deliberation, and that it included input from qualified persons. Guckenberger [affirms Davis and Wynne and] illustrates what can happen when a purely internal process that does not consult outside experts is attempted. An educational institution could find itself looking at presumptions of bad faith, pretext, or reliance on stereotypes. [However,] [o]pening up the decision-making procedure to more people can dilute that presumption.188 According to Bors, this means that colleges and universities need to have an organized and written policy on disabilities.189 It is also recommended that a centralized office for disabilities be established to avoid the possibility of inconsistent activities, programs and accommodations.190 In addition, such an office facilitates student confidentiality.191 If accommodations are going to be denied from time to 187

Patricia Bors, “Academic Freedom Faces Learning Disabilities: Guckenberger v. Boston University,” (1999) 25 J. of College and University Law 581. 188 Ibid at 609-10; also citing Davis at 397; Wynne I at 25-26; Guckenberger II at 149; Guckenberger IV at 110 (noting that BU made decisions based on “discriminatory stereotypes ... [which] constitutes a failure of BU’s obligation to make rational judgment.”) Ibid. 189 Ibid at 610. 190 Ibid. 191 Confidentiality can be an issue with respect to less visible disabilities such as HIV, epilepsy, learning disabilities and other mental disabilities. See, Doe v. Southeastern University, 732 F. Supp. 7 (D.D.C. 1990) (doctor reveals HIV status to University); see also, Rothman v. Emory University, 828 F. Supp. 537 (N.D. Ill.

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time, a rational process is necessary to ensure compliance with the Davis, Wynne, Guckenberger model. An authentic effort must be made to comply with this model, even if the level of deference that courts are going to afford to academic decision making is not entirely clear. The risk of not doing so is be found making decisions based on uninformed discriminatory stereotypes. Bors also advises that a genuine grievance procedure be implemented for appealing denials or modifications to requests for accommodations.192 An authentic due process procedure involving qualified personnel is fundamental to fairness. This failure was one of the features that the court in Guckenberger found disturbing. The President, the Provost and other administrators in the office of the President and the Provost were denying accommodations for disabilities, yet they themselves had no education, training, or experience in assessing the need for accommodations.193 To overcome biases, Anne Dupre suggests that something more than traditional deference is warranted for disability decisions. She calls for schools to engage in a “diligent assessment” that details supporting reasons for academic decisions. She says only then should courts “hesitate to second-guess the judgment of ... educators.”194 Dupre’s argument is the correct one. It is true that in a number of areas of law, such as Administrative Law, courts routinely defer to decisions made by expert bodies within their area of expertise. However, disability discrimination issues call for more than the traditional deference afforded to administrative and similar types of decisions. The considerable public policy interest in countering discrimination demands a more thorough examination of decisions which discriminate on the basis of disability. Universities and colleges need to be sure that their policies are consistent, rational, thoughtful, respect students with disabilities, and

1993) (law school dean recommended that a disabled law school student drop out, recommended psychological cournseling and at later date after the student was finished law school, submitted a letter to the Ill. Board of Law Examiners negatively portraying the applicant, arguably on the basis of the applicant’s disability). 192 Ibid (Bors also notes that the grievance procedure should not appoint the same person who turned down the original request for accommodation to decide the same issue on appeal; such an arrangement make the appeal procedure highly suspect and it was cited as one of the problems with the BU appeals process). 193 Guckenberger II at 116-18. 194 Dupre, at 473.

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are fair. Only then should the courts correctly afford some deference to academic decision making.195 As identified above, few Canadian cases deal with disability issues in the context of higher education. The only somewhat relevant Canadian case on the issue of deference is Berg v. University of British Columbia, a case discussed earlier in this chapter. The Supreme Court of Canada considered whether Berg should receive the benefits of human rights protection by evaluating whether the services in question were “customarily available to the public.”196 Berg was denied a key to the building, a service given to other graduate students. In addition, she was denied a hospital internship because a faculty member would not fill out the required rating sheet. The Court found the key to be a service available to all the graduate students in the program and the rating sheet to be like a transcript. In so deciding, the Court seemed to endorse an expansive interpretation of “public accommodations.”197 The Court noted that “every service has its own public and once that public has been defined through the use of eligibility criteria, the [Human Rights] Act prohibits discrimination within that public.”198 Once it was determined that Berg was covered by the protections of the statute, in a discrimination case, deference was inappropriate. Chief Justice Lamer, in writing for the majority stated “I do not think that a purposive approach to interpreting this provision can allow a discretion to be exercised on a prohibited grounds of discrimination, once the service or facility which is the subject of the 195

Kevin Smith, “Disabilities, Law Schools, and Law Students: A Proactive and Holistic Approach” (1999) 32 Akron L. Rev. 1, 81-7 (describing an approach for dealing with disabilities and reasonable accommodations in law school); see also, James P. Kelly, “Consistency & Cooperation: The Lessons of Guckenberger v. Boston University” (1999) 28 J. L. & Educ. 319 (the need for schools to carefully create a reasonable and consistent policy on learning disabilities). 196 Berg at 690. 197 Ibid. It is interesting to note, the United States Supreme Court has also endorsed a very broad interpretation of the term “public accommodation.” In PGA Tour v. Martin, 121 S.Ct. 1879, 10 AD Cases 385 (2000), the Court endorsed a broad reach for Title III’s definition of ‘public accommodation.” Not only the spectators at a golf tournament entitled to the protections of the ADA, but so are those playing and competing in the tournament themselves entitled to protection. The “winnowing process of who is eligible to participate in competition does not change the nature of the competition.” Ibid.) . 198 Ibid. at 667.

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discretion is otherwise found to fall within the purview of the Act.”199 The majority noted that in its own prior decisions, “the court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to [interpreting] human rights legislation” so as to “advance the broad policy considerations underlying it.”200 In addition, the majority found further guidance in the analogous provisions of other human rights Acts across Canada, all of which supported a broad construction of the provisions so as to ensure a “full, large and liberal meaning” of the protective legislation.201 The Court concluded that Berg had a right to be free from discrimination on the basis of her mental disability in the subject services. Berg should have been provided with building access and a key. The rating sheet evaluation should have been completed by the faculty member, even if it included negative comments. Moreover, discretion could not be used to exclude the services denied Berg from coverage under the British Columbia human rights legislation. Under US law, I think the Berg case would have a completely different outcome. First, as discussed above, her disability would not likely qualify as an impairment that “substantially limited” a “major life activity” and it is quite unlikely that she would be covered by the ADA. However, assuming that Berg could get past the substantially limited clause and still have a valid claim, the delivery of the key and rating services might be regarded as decisions which should be afforded academic deference. Under the reasoning provided in Pacella, the decision to deny service would be entirely within the scope of academic deference. Under the reasoning employed in Guckenberger, as long as the faculty met and deliberated about the delivery of services to Berg, and as long as the deliberation appeared to be in good faith, then the decision to deny services would be entirely within the province of academic deference.

199

Ibid. at 692. Justice Major wrote alone in dissent. He argued that these decisions are unique to the University, and that any remedies lie only with the school administrators, not the human rights tribunals or the courts; he stated that the courts should defer to the decisions of the school on these “day-to-day internal conflict” issues at universities. Ibid. at 695. 200 Ibid. at 678. 201 Ibid. at 680.

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Of course, in Berg there is nothing to show that the faculty deliberated about the denial of any services. The rating sheet was denied without any apparent deliberation. Also, the key was denied strictly on the basis of Berg’s mental disability. The Director of the academic program met with a physician about one year after the first denial. This untimely deliberation would be insufficient to support a finding of deference. Thus, under Guckenberger, Berg might be able to avoid the long arm reach of academic deference and have a viable claim of discrimination. In summary, I believe Canadian courts are more likely to explore faculty decisions involving disability discrimination with greater scrutiny than are US courts. Deference to faculty decisions will likely be regarded as subordinate to the liberal and purposive interpretation of Canadian human rights codes. The obvious caveat to this finding is that there is little Canadian case experience on which to base this finding.

Access to the Professions and Professional Examinations If students receive accommodations in programs of higher education, then it is rational for these same students to expect some form of accommodations on professional examinations. Examiners often have difficulty with the notion of providing testing accommodations and sometimes they have resisted efforts to comply with the ADA. Licensing boards are facing the same kinds of issues about accommodation that institutions of higher education face. The ADA covers licensing examinations. Title II covers public entities, and the licensing and regulation of the professions, as well as some other occupations, is usually a public responsibility and is often in the hands of state government. Title III of the ADA covers licensing and certification by private organizations.202 I contacted several professional organizations responsible for examining and certifying professionals for work in a number of 202

See, James F. Carr, “The Impact of the ADA on Professional and Occupational Licensing” in J.F. Carr et al., eds., The Americans with Disabilities Act: Private and Public Costs, (Washington, D.C.: The National Legal Center For the Public Interest, 1996) (stating that applicants with disabilities need to submit detailed accounts and other data or information about their disabilities and their qualifications to support findings of qualified and entitled to reasonable accommodations in testing situations; also arguing for a balance between “public protection and individual rights”; and also discussing regulation and discipline).

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disciplines.203 Each one stated that reasonable accommodations are given to applicants with disabilities. They all expressed a willingness to accommodate to the extent they are able. One organization did express some reservations about accommodating learning disabilities,204 nevertheless, they have always provided the accommodations sought when evidence of the disability was presented and have never been sued by an applicant seeking accommodations. My legal research on Westlaw only produced litigation involving access to two professions for persons with disabilities, law and medicine. In most of these cases, the complaints have dealt with the failure to accommodate vision impairments and learning disabilities. A number of law graduates over the past several years have sought accommodations on bar exams for a variety of disabilities. The following case was one of the first bar exam cases brought under the ADA. In In re Kara B. Rubenstein,205 a plaintiff suffering from a learning disability was accommodated only on the essay portion of the Delaware bar examination.206 The court found the denial of extended time on one portion of the exam, while approving extra time on the essay portion of the exam was “not supported by the record ... not the product of a logical deductive reasoning process and [that the decision] was manifestly unfair to Rubenstein.”207 The court then took the unusual step of ordering the Delaware Bar to issue, as an equitable remedy, the requisite certification for passing the Delaware bar.208 One of the interesting facts of the case 203

The organizations contacted were the bodies administering exams for professional engineering, architecture, city planning, and real estate sales in the United States. State bar examiners responsible for certifying attorneys and the National Board of Medical Examiners also provide reasonable accommodations for disabilities. 204 The American Institute of Certified Planners (AICP) did express some concern about the sometimes quite substantial extra time given to some exam applicants, sometimes up to double time on the AICP exam. However, they have always given the sought accommodations when the request is supported with appropriate medical documentation. 205 637 A.2d 1131 (Del. 1994). 206 The plaintiff had unsuccessfully attempted the Delaware bar exam on a number of occasions and then sought accommodations for a learning disability. She was able to pass the MBE portion of the exam on one occasion, but had consistently failed the essay portion of the exam. Ibid at 1132-33. 207 Ibid at 1139. 208 Ibid at 1140 (what is so unusal about this is that the plaintiff never passed the

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was that neither the defendant, nor the court closely scrutinized the claim of disability. Without close scrutiny of the disability in question, the “substantially limited” clause of the ADA was not used so as to deny the plaintiff protection under the statute. This early ADA learning disability case is interesting both because it seemed to give the benefit of any doubt to the plaintiff and also because it is so different from the cases that came after it. Jonathan Pazer, a graduate of the Albany Law School was not so lucky. In Pazer v. New York State Board of Law Examiners,209 the plaintiff claimed to have a learning disability and sought accommodations on the bar examination. He requested that the exam be written over four days instead of the normal two, the use of a computer and a private test site to minimize distractions.210 The court found that, although the requests might have been reasonable for another applicant, close scrutiny of the disability tests did not persuade the court that the plaintiff was, compared to the average person, “substantially limited” within the meaning of the ADA.211 The defendant’s expert witness convinced the court that the psychometric test results contained insufficient disparities to document a learning disability. Moreover, the disparities that did exist could be accounted for as “the result of many other factors, such as, stress, nervousness, cautiousness and lack of motivation.”212 This is curious reasoning indeed. Poor performance on certain elements of a learning disability diagnostic analysis appears to be dismissed as lack of multiple choice and essays parts of the exam in the same administration. Both parts were passed, but, only during different sittings of the examination). 209 849 F. Supp. 284 (SDNY 1994). 210 Typically, reasonable accommodations for people with disabilities may include changes in the length of time allowed for completion of the exam, the use of auxiliary aids such as audio-taped examinations, the use of an amanuensis, access to computers and various software, large print text and well as other accommodations that may be of benefit to the applicant. For those with learning disabilities, the most common accommodations are extended time, private exam site and word processing and spell checking software. 211 Pazer at 287 (the court did acknowledge that there was “merit to the argument that a disparity between inherent capacity and performance on a test may, in some circumstances, permit the inference of a learning disability, even though the individual’s performance has met the standard of the ordinary person;” Ibid. The court also concluded that all of the necessary tests to support the plaintiff’s disability claim were not undertaken). 212 Ibid.

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motivation. This attitude embraces common stereotypes and corresponds with Jon Westling’s admonishment for people with learning disabilities to concentrate more and work harder. Another case involving a learning disability was treated in a similar way by the court. In Argen v. New York State Board of Law Examiners,213 the plaintiff sought accommodations for the bar exam. The Board of Law Examiners denied accommodations on the basis that he was not “substantially limited” in comparison to the average person and thus did not have a disability covered by the ADA.214 Unfortunately, many people with learning disabilities are actually quite intelligent, and when they exhibit this intelligence they undermine their chances for the accommodations they need for success on timed examinations. When they display intellect they demonstrate that they are not substantially limited in comparison to the average person, and therefore, not qualified for protection under the ADA. This was the principal problem facing both Pazer and Argen. The Law Examiners had to face a slightly different kind of challenge in D’Amico v. New York State Board of Law Examiners.215 D’Amico was a severely visually impaired bar applicant and she sought reasonable accommodations in the form of additional time to complete the examination.216 The defendant argued that extra time and spreading the test over four days instead of the usual two days was a fundamental alteration of the testing procedure. The examiners believed the plaintiff would have an unfair advantage over other bar applicants if given accommodations.217 The court rejected this contention and stated that every request for accommodations and the determination of reasonableness must be made on a case-by-case basis.218 The court acknowledged the sensitive balance that must be made in assessing reasonableness and testing conditions on examinations. The court looked 213

860 F. Supp. 84 (WDNY 1994). Ibid at 91 (the court also stated that not all underachievers are learning disabled; I believe that a more indepth analysis of the plaintiff condition with additional testing would support the view that he did have a learning disability; the testing conducted was incomplete and his expert may not have been sufficiently qualified to undertake the evaluation; the plaintiff may have undermined his chances of success with poor choices on witnesses). 215 813 F. Supp. 217 (WDNY 1993). 216 Ibid at 218. 217 Ibid at 221. 218 Ibid. 214

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to the language in the preamble to the ADA for guidance on achieving this balance, noting that the purpose of the ADA was to guarantee that those with disabilities are not disadvantaged.219 The court carefully considered the medical evidence together with the requested accommodations. Upon reflection the court concluded that the plaintiff was quite disadvantaged. Then the court held that extra time and extended testing over the four day period was an appropriate adjustment and that the law examiners proposal of an exam over two days, from 7:30 am to 5:45 pm was unacceptable.220 This was an important case for showing that there is nothing sacrosanct about the bar examiners two day format versus a four day format. It also clearly articulated that extra time on the exam was a reasonable accommodation. Bartlett v. New York State Board of Law Examiners221 is another very intriguing case, also demonstrating that extended time and a four day format are reasonable accommodations. This case is still before the courts, having travelled from the trial court to the court of appeals and then to the US Supreme Court, on remand, back to the Court of Appeals and then on another remand down to the trial court again.222 The final result of this case might be very crucial for people with learning disabilities who seek accommodations on professional exams. Unfortunately, it appears that the suit has ended its process within the stream of appeals and remands. It seems Bartlett may have given up on 219

Ibid. See, Christian v. New York State Board of Law Examiners, 1994 WL 62797 (SDNY 1994) (arguing the ADA is to ensure no disadvantage to the disabled, but, also arguing that the applicant was not sufficiently disabled to be protected by the ADA, a common problem for many learning disabled bar applicants, then denying the plaintiff a preliminary injunction); see also Christian, 899 F. Supp. 1254 (SDNY 1995) at 1254, 1255 (again court finds plaintiff Christian insufficiently disabled to be protected by the ADA, but, curiously also noting that the New York bar copied the New Jersey bar on correspondence relating to the denied of accommodations; the New Jersey still conducted its own independent evaluation and awarded accommodations to the applicant and she subsequently passed the NJ bar). 220 Ibid. 221 970 F. Supp. 1094 (SDNY 1997), aff’d in part, vacated in part, 156 F.3d 321 (2nd Cir. 1998) , on a petition for writ of certiorari, judgment vacated and remanded to 2nd Cir Court for further consideration in light of Sutton v. United Airlines, Inc., 119 S. Ct. 2388 (1999), aff’d in part, vacated in part and remanded to the District Court for additional fact finding, 226 F. 3d 69 (2nd Cir. 2000). 222 Ibid.

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her claims to accommodation and appropriate justice. This is one of the problems within our judicial system. With all of the appeals, remands and additional fact finding, it may take 8, 10 or 12 years to resolve a dispute. Life is only so long and we must let bygones be bygones, even if it is unjust. In Bartlett the plaintiff sought accommodations for the New York bar exam. Dr. Bartlett has more than the usual qualifications for a law school graduate, possessing a doctorate and a master degree in addition to her undergraduate degree.223 She is also a graduate of the Vermont Law School and has satisfied all of the prerequisites to be an attorney in New York, with one exception, a seemingly inexplicable inability to pass the bar exam. Her difficulty, according to more than one federal judge, was due to “a cognitive disorder that impairs her ability to read.”224 Bartlett has a reading disorder, an impairment that forces her to read slowly and laboriously.225 This kind of impairment imposes on the plaintiff a distinct disadvantage when writing timed standardized tests such as the bar exam. Dr. Bartlett sought accommodations from the New York bar examiners on several occasions and was denied each time. Nonetheless, she unsuccessfully attempted the bar exam four times without any accommodations. The bar examiners denial of accommodations was based on a largely simple minded “calculus” that compares the applicants achievements to that of the average person and finds that the applicant is not “substantially limited” in either the major life activities of learning or working and, therefore, not protected by the ADA. In Bartlett, the bar examiners’ arguments extended this “calculus” somewhat further by focussing on the pyschoeducational testing offered by the plaintiff as evidence of her learning disability.226 They argued that the test results did not point to the existence of a disability. While conceding that one result

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Bartlett, 970 F. Supp. at 1101 (Bartlett holds a doctorate in Educational Administration from NYU, a masters in Special Education from Boston University and a bachelors degree in Early Childhood Education from Worcester College in Massachusetts; she then subsequently obtained a Juris Doctor at the University of Vermont). 224 Bartlett, 156 F. 3d at 324. 225 Bartlett, 970 F. Supp. at 1099. 226 Ibid at 1105-16 (the court placed much attention on the psychometric testing and the evidence given by the various experts testifying during the trial; the indepth examination of the testing was very revealing).

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was extremely poor (Bartlett’s reading speed),227 the bar examiners argued this single component of the testing was insufficient to confirm the presence of a learning disability.228 The court rejected the defendant’s narrow construction of what is necessary to show proof of a learning disability. The court emphasized that psychometric testing is just one part of the process. The court also noted that a clinical assessment was also only part of the process and that no one part of the battery of tests could be used to deny the existence of a learning disability. In its holding, the court offered that Bartlett’s in court reading demonstration was quite revealing and, when considered together with the plaintiff’s expert testimony, led the court to conclude that the plaintiff did suffer from a learning disability.229 The court found the plaintiff “substantially limited” in both the major life activities of learning and working and held the New York State bar examiners’ failure to reasonably accommodate discriminatory under the ADA and the RA Section 504. The court ordered accommodations and damages.230 On appeal the court upheld the lower court’s decision to grant accommodations.231 However, the court of appeals altered the analysis somewhat by saying that the trial court erred in using working as one of the major life activities. The court stated that “if an individual is substantially limited in any other major life activity, no determination should be made as to whether the individual is substantially limited in working.”232 The court then examined Bartlett’s condition in terms of the 227

Ibid at 1108, 1113; see also, ibid at 1109 (explaining other test score discrepancies between verbal and performance results and the percentage occurrence in the general population). 228 Ibid at 1111-12 (the defendant required more widespread poor performance on the diagnostic tests than the plaintiff had demonstrated before making a conclusion supporting the presence of a learning disability). 229 Ibid at 1113-16. 230 Ibid at 1153. 231 Bartlett, 156 F.3d 321 (2d Cir. 1998) (bar examiners stated that the trial court erred in 1) refusing to defer to their determination that Bartlett is not disabled; and, 2) in finding that Bartlett is disabled in the major life activity of working; the court dismissed the notion that deference to the Bar’s decision, such deference would simply endorse discrimination and would be contrary to the state public purpose fo the ADA). 232 Ibid at 329 (in other words, if it was not possible to find Bartlett “substantially limited” in the major life activity of learning, only then should the major life activity or working be used for assessing the plaintiff’s status as a

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major life activities of learning and reading, and compared her abilities to the average person. The court reasoned that she was “substantially limited” in comparison to the average person, but she had learned to use “self accommodations” as mitigation measures and other coping strategies to raise her ability to learn to an “average” level. In support of this position, the court noted that the House Education and Labor Law Committee report on the ADA gave guidance, commenting that “disabilit[ies] should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids.”233 Thus, the court reasoned that Bartlett could be seen as “substantially limited” in the major life activities of learning and reading. The working standard did not need to be used because the learning and reading activities were a sufficient basis to support accommodations.234 The Court of Appeals position on mitigation measures was overruled by the United States Supreme Court with the new mitigation reasoning articulated in Sutton v. United Airlines, Inc.235 In Sutton, the Supreme Court stated that the evaluation of whether one is disabled must take into account mitigation measures and remedial efforts. In response to the decision in Sutton, the Supreme Court vacated and remanded Bartlett for reassessment in view of the revised rule on mitigation measures.236 “substantially limited” person; thus, the major life activity of working ensures that deserving plaintiffs are covered by a major life activity); the court based this position on the Department of Justice interpretative regulations for the ADA. Ibid. (quoting 29 C.F.R. § 1630.2(j) (1998). 233 Ibid. (citing H.R. REP. NO. 101-485(II), at 52 (1990); see also, 1990 U.S.C.C.A.N. 303, 334). The court also cited to a number of ADA cases to bolster its position, see also, Arnold v. United States Parcel Ser. Inc. 136 F.2d 854 (1st Cir. 1997) (efforts to mitigate a disability should not be used in evaluating whether a person has a disability deserving of protection under the ADA). 234 Thus, under the Court of Appeals reasoning, the working standard was like a reserve, to be used if no other major life activity could be used as a basis for extending coverage to impairment. 235 Recall that Sutton, Albertson, and Murphy were the trilogy of cases decided in 1999 and discussed previously herein where the Supreme Court ruled that mitigation, remedial efforts and other efforts to overcome a disability must be considered in determining whether one had an impairment that “substantially limited” a major life activity within the meaning of the ADA. 236 Bartlett, 119 S. Ct. 2388 (1999) (case below was vacated and remanded to the US Court of Appeals for the Second Circuit for reconsideration in light of Sutton).

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The Court of Appeals similarly remanded to the District Court237 for decisions on whether Bartlett is “substantially limited” in the major life activities of learning, reading or working in view of the requirements of Sutton. Soon new decisions will be made in this case and without doubt, appeals again will be considered. Samuel Heywood authored an excellent article on the problems of providing reasonable accommodations to bar exam applicants with learning disabilities.238 Although Heywood’s article was written prior to the Sutton trilogy of cases, it provides a good overview of the case law prior to 1999. Heywood explains how the courts often seem to have trouble with the idea of accommodating intelligent and accomplished persons. By comparison to the average person in society, they often have achieved much. Heywood also correctly identifies the problems with using a broad comparison group. A person with a disability must oftentimes be so “substantially limited” to be protected that they are then deemed not “otherwise qualified” or not a “qualified individual” for protection under the ADA.239 Heywood argues that the best way to approach this difficulty is to compare LD students in professional degree programs with other students having similar skills and training. Then those with an LD would be protected by comparison to a more appropriate group.240 This is, of course, permitted under the ADA, but only if a person is found “substantially limited” in the major life activity of working, rather than learning.241 This was part of the reasoning used by the Bartlett trial court for extending accommodations to the plaintiff.242 237

Bartlett, 226 F.3d 69 (2nd Cir. 2000). Samuel Heywood, “Without Lowering the Bar: Eligibility for Reasonable Accommodations on the Bar Exam for Learning Disabled Individuals Under the Americans with Disabilities Act,” (1999) 33 Ga. L. Rev. 603 (one word of caution on the article; it was written and published before Sutton and the Supreme Court’s trilogy of holdings on mitigation measures during the summer of 1999; therefore, it misstates the law on the definition of disability under the ADA as it relates to the use of mitigation measures and remedial devices). 239 Ibid at 631 (Heywood sees a serious problems with the comparison group “average person in the general population” which effectively eliminates high achieving LD students, who find ways to cope with their condition, from higher education). 240 Ibid. 241 Ibid at 632 (under the major life activity of working, the comparison group is “the average person having comparable training, skills and abilities,” as described 238

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The difficulty with this reasoning is that it involves an application of the EEOC regulations from Title I of the ADA to a claim like Bartlett’s which arises under Titles II and III of the statute. This is an unusual crossapplication of interpretative regulations and I am not sure that this kind of dispensation is able to withstand judicial review. It is a liberal interpretation of the ADA. Nevertheless, we did see a cross-application of the regulations earlier, in Pacella. In that case, a cross-application of the EEOC “one job rule” from Title I was turned into a “one career rule” and used to deny the plaintiff accommodations in medical school.243 The curious thing about this entire analysis is it is arguably illogical to apply one comparison group for professional students (the comparison to the average person standard) before they graduate and a different one after they graduate and start working. I think it would make more sense to always compare them to a similarly educated group rather than the average person.244 Another approach would simply acknowledge that people with disabilities often find ways to work and learn in society and that in so doing, may integrate into the average community. It is simply guesswork to speculate on how the reasoning in Bartlett will come out, assuming that the process has not ended. My guess is that the lower courts in Connecticut will try to find a way to support

in the EEOC regulations for Title 1 (for employment)), 29 C.F.R. § 1630.2(j)(3)(i). 242 Bartlett, 970 F. Supp. at 1120-21. 243 The “one job rule” was designed to limit discrimination claims where a “qualified” person was denied access to not just one job, but a class of jobs. In Pacella, this Title I rule was converted to a “one career rule” and the plaintiff was denied higher education in one career only, not a class of careers, so there was no finding of liability for discrimination. I suspect that most American courts will not allow a cross-application of EEOC (Title I) and Dept. of Justice (Titles II and III) interpretative guidance, especially to support a liberal interpretation of the ADA, especially one extending accommodations to a learning disabled bar applicant. However, a conservative interpretation denying a disabled person access to accommodations with reasoning supported by a cross-application of rules might be upheld. This is because most US courts tend to have an ultra conservative leaning. 244 In the United States, the average person is only a high school graduate. Given the reasoning used by the various courts described herein, accommodations for disabilities, in an education setting, would only be necessary to the extent that a disabled person might acquire a level of education approaching that of the average person.

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accommodations for her.245 The Court of Appeals may narrow the analysis and the Supreme Court will further narrow its application or overrule the lower court rulings. I also expect the eventual rulings in this case to be significant for accommodations in all professional exam settings as well as testing in education and the workplace, if there is ever a conclusion to the dispute. In the alternative, the case just might just disappear unresolved as it appears to have done. The National Board of Medical Examiners has also been resistant to the notion of accommodating learning disabilities246 even though some schools have been quite open minded about the admission of such persons into their programs. As we have seen in the discussion of bar exam applicants, people with disabilities are faced with the need to show that their particular disability is an impairment that “substantially limits” a major life activity. Often the analysis of a disability used by the courts is a superficial, cavalier comparison of a plaintiff’s abilities to the average person in the general population. Consequently, these medical examiner cases are also often dismissed on the grounds that the “disabled” person is not “substantially limited” compared to the average person. Occasionally, the analysis undertaken by the courts involves an indepth examination of the disability and its relationship to a specific major life activity. All too often these in-depth analyses produce the same result, dismissal of the case. Unfortunately, the trends in these cases are rather consistent, whether the disputes involve bar examining committees or the board of medical examiners. Plaintiffs end up being either not

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It is conceivable that the court will decide that she is not substantially limited in reading or learning, but still protected by the ADA on the basis of a substantial limitation in the major life activity of working. The argument would be that the working standard should be applied to the bar exam applicants because the exam is the gateway to a class of jobs in law. The comparison group is other similarly trained persons, and not the average person in society. This is a tough argument, but it does bootstrap people with learning disabilities in higher education into ADA protection. I wonder what the US Supreme Court would say about it. I am sure they would not find this type of comparison to be very unappealing and not in keeping with the intent of the law. 246 See, Ruth Colker, “Perpetuation of Stereotypes Unfair to Learning Disabled,” The Columbus Dispatch, September 13, 1997 (Professor Colker states that “the National Board of Medical Examiners is taking the position that it need not accommodate any student who has a learning disability ... [and the] courts are upholding that ludicrous position”).

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substantially limited or insufficiently limited and not covered by the ADA or the RA. Issues involving learning disorders are particularly subject to this analysis. The result - the popular use of this cavalier approach to determining whether an applicant claiming to have a learning disability is entitled to have reasonable accommodations. Generally, this line of attack involves a broad comparison of the claimant’s intelligence and accomplishments that of the average person. Claimants are usually found to be not substantially limited and not entitled to statutory protections. In Wong v. Regents of the University of California, 247 a learning disabled medical student sought accommodations after failure to meet medical school academic requirements. Accommodations were denied. The court supported the denial of accommodations. The court followed same reasoning used within the other cases described herein, that the plaintiff had achieved considerable academic success, beyond the attainment of most people and beyond the average person, even though the success was in large part, acquired with accommodations. The plaintiff was able to learn – so he could not possibly have a learning disorder! The dissenting judge recognized the flawed reasoning. He noted that by such logic, no person with a learning disability would be permitted to pursue medical training.248 Another superb illustration is the reasoning used in Price v. National Board of Medical Examiners.249 In this instance, the court examined the requests of three medical students250 under the ADA251 for accommodations in taking the United States Medical Licensing Examination.252 The court found each plaintiff not disabled within the meaning of the ADA and thus not entitled to reasonable

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No. 01-17432 (9th Cir. 08/18/2004). Ibid. 249 966 F. Supp. 419 (SDWVa. 1997). 250 Two of the three medical students actually had an impressive level of documentation supporting there claims to having learning disabilities. The same two also had LD diagnoses from the National Center of Higher Education for Learning Problems. Ibid at 422. 251 Discrimination suit brought under Title III of the ADA. Ibid at 421. 252 The plaintiffs sought additional time to complete the examination and a separate testing room. Ibid. 248

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accommodations.253 In arriving at this decision, the court focussed on the major life activity of learning and avoided the diagnostic assessment.254 The court sought to compare the plaintiffs to the average person in the general population in terms of their capacity to learn. The court found the plaintiffs to be very intelligent and in possession of the ability to learn at a much higher level than the “average person in the general population.”255 The court determined that none of the medical students were entitled to accommodations because they did not learn at a substantially lower level than that of the average person. Moreover, the court reviewed their prior academic accomplishments256 and found that their records evidenced a greater than average ability to learn.257 Thus, the plaintiffs’ prior academic achievements precluded any finding of “substantial limitation.”258 The Price court seems to be in agreement with the Pazer court on the ultimate result, denying accommodations to plaintiffs with similar impairments. However, the court in Price vigorously disagreed with the reasoning used in Pazer.259 In Pazer, a request for bar exam accommodations was closely scrutinized by the court by a comparison of the diagnostic information for the applicant with the diagnostic results for 253

Ibid at 427-28. The court did give a cursory look at the opposing expert testimony to ascertain, if in fact, the plaintiffs did in fact have a learning impairment. However, the court preferred to look at the comparison to the average person to see whether the disability rose to the level of ADA protection. Ibid at 426. Citing, Soileau v. Guilford of Maine, Inc, 105 F.3d 12 (1st Cir. 1997) at 15 (explaining that the plaintiff must show the existence of an impairment as well as show that impairment substantially limits a major life activity); also citing the EEOC interpretative guidance, 29 C.F.R. pt 1630, app., 1630.2(j) (1998) (impairments do not constitute disabling impairments unless an impairment substantially limits one or more of the individual’s major life activities). 255 Ibid at 427; citing the Dept. of Justice regulations. 29 C.F.R. pt. 1630, app., 1630.2(j)(l)(ii). 256 Some of the plaintiff’s accomplishments were acquired with the assistance of accommodations and others without the benefit of accommodations. It also appears that one plaintiff acquired his considerable accomplishments largely without the assistance of formal accommodations. Nonetheless, each must have developed coping strategies for their own particular difficulties; eventually their coping strategies fail as they proceed to higher levels of education. 257 Ibid at 428. 258 Ibid at 423-24. 259 Ibid at 426. 254

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the average person.260 In addition, during its evaluation of the diagnostic information, the Pazer court stated that disparities between diagnostic indicators and the average person’s performance on the same indicators may in itself permit the inference of a learning disability.261 The Price court explicitly rejected this reasoning.262 Instead, in Price the court felt that the diagnostic information, on its own was insufficient to show the existence of a learning disability. According to the Price court, the analysis required a general comparison of applicants’ learning to the learning abilities of the average person. This task could easily be done by the court. In arriving at this conclusion, the court stated that [t]he “comparison to most people” approach has practical advantages as well. Courts are ill-suited for determining whether a particular medical diagnosis is accurate. Courts are better able to determine whether a disability limits an individual’s ability in comparison to most people. Additionally, this functional approach is manageable and, over time, will promote a uniform and predicable application of the ADA.263 Accordingly, this Court concludes that in order for an individual to establish that he or she is “substantially limited” in a major life activity, that person must show a limitation in their ability to perform a life function as compared to most people.264 The court further argued that this so called functional approach will indeed lead to “uniform and predicable application”265 of the ADA. Indeed, the result will be predictable. Deserving people will be consistently denied reasonable accommodations. The only people who may qualify for reasonable accommodations, under this approach, will be 260

Pazer at 286-87. Ibid at 287 (under such circumstances, the degree of disparity in the various diagnostic tests is possibly just as important of an indicator as the comparison to the average person). 262 Price at 427. 263 Ibid. 264 Ibid. 265 Ibid; the Price court gave an example: two students with dyslexia, one learns as well as the average person, the other is in the bottom 10 percent ability in terms of learning. The one that learns as well as the bottom 10 percent is accommodated and the one that has by a record or academic achievement demonstrated an average ability to learn, should not receive any accommodations. Ibid. 261

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those who are not “otherwise qualified” for protection under the ADA. Consequently, under the Price reasoning, any record of achievement will preclude one from accommodations. In addition, the diagnostic analysis seems to play very little role in the assessment of whether one is actually “substantially limited” and covered by the ADA.266 The approach used in Argen v. New York State Board of Law Examiners, as discussed above is much like the Price approach. Argen’s bar exam accommodations were denied principally on the basis of his prior academic accomplishments.267 Although the diagnostic test was discussed, poor performances on parts of the testing were dismissed by the court. The court reasoned that, by virtue of his degrees, his ability to learn was much greater than that of the average person, so he was certainly not “substantially limited” in the major life activity of learning. A considerably different approach to assessing a learning disability was used in Marlon v. Western New England College 268 In Marlon, the court required more than reliance on a medical diagnosis. The court sought evidence that the limitations, by experience, were substantial.269 The court also examined the plaintiff’s academic record and work performance in its evaluation. The court determined that plaintiff might have a learning impairment, but not one that substantially limited the major life activity of learning. The possibility of impairment with respect to the major life activity of working was also considered. The court determined that by the plaintiff’s past successful work as a paralegal, there was no impairment in working. Moreover, the ruling required, as 266

See also, Rothberg v. Law School Admission Council, Inc., 300 F.Supp. 2d 1093 (2004) (applicant with learning disability sought extra time and was denied; court found plaintiff’s expert more credible than the defendant’s expert witness; found the applicant disabled within the meaning of the ADA and granted a preliminary injunction; defendants appealed and had the injunction overturned. 2004 WL1345130 (10th Cir. Colo.); the case is worth watching as litigation continues because it is the classic case of a plaintiff with an impairment which is not substantially limiting by comparison to the average person in the general population). 267 860 F.Supp. 84 (WDNY 1994) (Argen had also acquired a number of other degrees in addition to a law degree). 268 (2003) WL 22914304 (D. Mass) (court cited Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184,198 (2002) as the basis for the insufficiency of a medical diagnosis as evidence of disability; also need to show impairment in a “class” of manual activities such as household chores and personal hygiene). 269 Ibid at 8. (the court also noted that need for notice to the defendant

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discussed in the last chapter, a need to show one was precluded from a “substantial class of jobs” or a broad range of jobs.270 The court said the plaintiff failed to do so. Unfortunately, the process of demonstrating preclusion from a broad genre of employment positions is likely to be quite difficult. This aspect of the law operates as a catch all and is used as a tool by defendants to ensure that disabilities do not substantially limit a major life activity. Another very interesting case is Gonzalez v. National Board of Medical Examiners.271 A learning disabled medical student at the University of Michigan Medical School, one of the leading medical institutions in the United States, admitted Gonzalez and provided the student a range of accommodations, including extended time on examinations.272 After finishing the required academic training, the plaintiff sought accommodations on the United States Medical Licensing Exam. Accommodations were denied. Gonzalez attempted the examination twice without accommodations and failed on both attempts. He then brought an action against the National Board alleging discrimination. The court first examined the plaintiff’s prior academic achievements together with a close scrutiny of the psychometric test results and concluded that the plaintiff was not “substantially” limited in the major life activities of reading or learning. 273 The court stated that his verbal, performance and full scale IQ were all well within the average range. The court also dismissed the few diagnostic tests on which his performance

270

Ibid. 60 F. Supp. 2d 703 (E.D. Michigan 1999). 272 Ibid at 705 (the plaintiff was evaluated by two doctors as having a learning deficiency, described as a reading disorder and a disorder of written expression). 273 Ibid (the court reviewed the plaintiff’s record from high school, his undergraduate program at U.C. Davis, his performance on standardized tests, and his work at the University of Michigan; the court concluded that his performance ranged from average to superior; the court’s reasoning is quite flawed due to the fact that a demonstration of poor performance was required to exhibit the need for accommodations (to be substantially limited), thus, no person with a learning disorder could ever be admitted to a medical school because such schools do not have a practice of admitting poor performers). 271

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was very poor, referring to the results as “borderline impaired.”274 The court concluded that in comparison to the “average person,” the plaintiff was not “substantially limited” and, therefore, not a disabled person within the meaning of the ADA.275 The court also examined the same claim used in Bartlett, whether the plaintiff was “substantially limited” in the major life activity of working. The court concluded that an analysis of the major life activity of working should only apply to Title I employment cases, and not to situations where a plaintiff is not licensed to practice.276 The court reasoned that if one does not have a licence to practice, then they are not “qualified” for the employment sought.277 Thus, the court concluded that the plaintiff was not able to demonstrate that he had a disability protected by the ADA and therefore, he was not entitled to reasonable accommodations.278 The reasoning offered by the Gonzalez court is at odds with the reasoning of both lower courts in Bartlett.279 In Bartlett, the Court of 274

Ibid (the court’s reasoning is doubly curious because average IQ and better than average IQ are quite common among persons with learning disabilities. It seems that the courts expect people with learning impairments to have low IQs. The real problem with this reasoning is that people with such obvious impairments will not be qualified for the sought after accommodations). 275 Ibid; see also, Falcone v.University of Minnesota, (2003) WL 22076604 (D. Minn) (medical school accommodations case brought on the basis of the Rehabilitation Act; court recognized plaintiff could not do the academic requirements of the program without accommodation but also found the denial of accommodations sought was not discriminatory as there was no evidence the university acted in “bad faith” and finding the law required only a stereotype-free assessment, not a correct decision. Ibid at 8. 276 Gonzalez at 709-10 (the court also interpreted the EEOC regulations in a way that was consistent with the DOJ for the major life activity of working, so that even if working applies, the valid comparison group remains the “average person in the general population,” not the “average person having comparable training, skills, and abilities”). 277 Ibid at 709. 278 Powell v. National Board of Medical Examiner, 364 F.3d 79 (2004) (using reasoning similar to that used in Gonzalez, court doubts the plaintiff has a learning disability because plaintiff is not substantially limited in comparison to the average person and that the disability testing did not rule out low intellectual capacity). 279 In Bartlett, the District court and the Court of Appeals found the major life activity of working applicable to an evaluation of Bartlett’s learning disability, but, Bartlett has been under reconsideration due the US Supreme Court order after

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Appeals decided that the appropriate use for the major life activity of working was only where no “substantial limitation” could be found in any other major life activity. This was precisely the application the court in Gonzalez firmly rejected.280 The Bartlett court was reviewing its prior decisions in light of Sutton and the applicable comparison groups for different major life activities will have to be hammered out again.281 However, Bartlett seems to have disappeared from its shifting continuing continuum of litigation. This long and winding road will continue, particularly with respect to learning disabilities and professional exams. The light at the end of this tunnel is still far off. There will be much more litigation before any possible change in direction and the trend shifts to favouring plaintiffs. In Canada, there have been no cases involving the denial of access to the professions. The Upper Canada Law Society and the Law Society of British Columbia both claim to accommodate people with disabilities, including learning disabilities, on each of their respective entrance examinations. The Upper Canada Law Society stated that they have never been sued over the denial of accommodations. I believe that one of the reasons this has not been as much of an issue in Canada as it has in the United States is the volume of applicants to the bar, as well as to other professions. In the United States, the total volume vacating the lower court decisions. 280 Without a license in hand qualifying the professional, he or she cannot apply for work as a doctor. Thus, the court argued that the working standard should not apply because the “disabled” person would not be “otherwise qualified” or “qualified” for protective coverage. The same argument could be applied to bar applicant. Without certification as an attorney, the bar applicant cannot seek employment as a lawyer and so the major life activity of working standard should not apply to the person seeking accommodations for the bar exam. See, Gonzales, (6th Cir. 2000) No. 99-72190, August 22 (on appeal the 6th Circuit, the court upheld the lower court finding and refused to transplant the definition of “working” from Title I to Title III). 281 The major life activity of working is being questioned by the courts with respect to not only the range of its application, but whether working should even be considered a major life activity. See, Williams v. Toyota, 534 U.S. 184 (2002); see also, Linda Greenhouse, “Justices Narrow Breadth on Law of Disabilities” NY Times, January 9, 2002 (noting that Justice O’Conner questioned the existence of the major life activity of working, but acknowledged that this “difficult question need not be decided today” [in Williams], probably because it was not a part of the Williams argument, nor was it one of the questions presented to the Supreme Court for its review).

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of applicants to the professions is much greater than it is in Canada. Thus, even when relatively small percentages of people seek accommodations, in absolute numbers the volume of requests for accommodations may seem quite high and exam administrators may feel swamped by requests for accommodations. In Canada, similar requests are much more likely to be seen as a trickle of wants, and accommodations are much more likely to be tolerated when the total numbers of requests are quite small. Nonetheless, litigation in this subject area will inevitably come before Canadian courts. It will be interesting to see how the courts handle these cases.

Conclusion Bias has played a significant role in the delivery of accommodations to people with disabilities. Common stereotypes and anecdotal stories add to predisposition. Moreover, stories about extensive accommodations are given much fanfare and are sometimes seen as pushing the fundamentals of academic programs to the level of a “substantial program alteration.”282 Systematic, deliberate and fair policies can be an effective instrument against bias and can be used to open the doors of higher education to many who would not otherwise have this opportunity. Fair policies will also withstand judicial scrutiny, irrespective of the level of deference given to academic decision makers. Fair policies should also be sensitive to individual experience, even the same experience discussed in the theoretical discussion contained in Chapter II. The same issues bias and stereotype are central to accommodation on professional exams. At present there is a degree of judicial chaos in dealing with questions of accommodation for those with learning disabilities. Hopefully, the disarray will pass soon and appropriate and fair mechanisms can be used to fairly accommodate learning and all other types of disabilities. In addition, new technology may greatly improve access to education such as the use of extensive distance learning equipment for severely disabled students.283 Rapidly expanding new 282

Susan Johanne Adams, “Levelling the Floor: Classroom Accommodations for Law Students with Disabilities” (1998) 48 J. Legal Ed. 273, 275. 283 Ibid. (distance learning as an accommodation for disabled students is likely to become a new area of litigation. This is especially true for professional academic programs of study; it is a new issue on the horizon; also, great advances in innovative technology are expected in the near future and they will open new

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technology will also open additional doors to others, permitting fuller participation in society for people with all types of disabilities. Access to education is a critical part of an open society. Appropriate supportive legislation is essential.

doors to a wide range of new educational opportunities, and unfortunately, this opening will also be accompanied by new litigation).

CHAPTER VI

Concluding Remarks

The inability of plaintiffs to win claims brought on the basis of the Americans with Disabilities Act and the Rehabilitation Act presents considerable evidence of a deficiency in US disability law. Defendants win almost all ADA cases. By contrast, in Canada, plaintiffs win in a majority of their disability claims. This difference can be explained, in part, by the broader conception of disability encouraged by the Canadian Charter of Rights and Freedoms and incorporated into the various human rights laws in Canada. I think that US courts also have a tendency to approach disability issues from a more conservative ideological perspective than do Canadian courts. In this book, I have attempted to lay out some competing notions of justice and equality. These notions have encouraged a wide range of perspectives on the nature and desirability of equality. They have also championed very different positions on the appropriateness of antidiscrimination legislation. These various theoretical perspectives are often singular in terms of their capacity to accurately incorporate the multifaceted character requisite to both descriptive and predictive explanatory theories. Also, others would be better served by integrating experience as a factor within the theoretical construct. Even the term equality itself can be interpreted in many different ways. In the United States, market based arguments and economics carry a lot of weight in the evaluation of accommodations and act as "floodgate" curbs on disability rights. These themes encourage a close assessment of disabled needs, and hence, the functional limitations of the disabled. They also support a balancing of costs and benefits in evaluating the appropriateness of specific reasonable accommodations. Canadian statutes seem to focus more on the delivery of equality rights. The role of costs, although important, appears to be secondary to the existence of the right. 233

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The ADA and the RA promote a detailed examination of every disability, an individual assessment of biomedical functioning, and instruct the courts to draw conclusions about the degree of disability. As a result, many plaintiffs are found to have impairments that do not "substantially limit" them in comparison to the average person. Their disabilities are too insufficient to warrant coverage under the ADA. Consequently, they are denied the accommodations that would facilitate their employment, education and full participation in the daily activities of life. In fact, their claims for reasonable accommodation are often, never heard by the courts, because their claims are not within the protections by the ADA and the RA. Canadian statutes require accommodation for "any" disability except those impairments that may be deemed "trivial." A detailed biomedical assessment of each impairment is largely absent from the analysis used by Canadian courts. In fact, the Supreme Court of Canada has stated that one can be disabled within the meaning of human rights law without having any functional limitation. In Canada, the courts seem more interested in hearing about the claim, the requested accommodations and whether the employee can do the job, with or without accommodations. US employers will argue that accommodations are too costly and constitute an undue hardship. Often relatively modest accommodations and impressionistic concerns about costs will qualify as sufficient to satisfy the duty to accommodate. In Canada, the costs of employer accommodations cannot be impressionistic and efforts to accommodate must be to the point of undue hardship. Canadian courts require employers to make a greater effort to satisfy the duty to accommodate. Issues involving access to education and the professions for those with disabilities have recently produced significant and very contentious litigation in the United States. US academic claimants face the same difficulties encountered by those seeking redress for employment discrimination. They often fail to have an impairment that fits within the statutory definition of a covered disability. Also, offers of accommodation are not closely scrutinized because the courts seem willing to defer to faculty and administrators on the issue of academic accommodations. Nonetheless, plaintiffs have won a few influential cases involving reasonable accommodations for vision impairments, mental disabilities and learning disabilities. Canadian courts have not faced many of these same disputes. Nevertheless, the few judgments that do exist, suggest that Canadian courts are interested in maintaining a broad, liberal conception of

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disability and with a particular focus on what can be done to reasonably accommodate the plaintiff. If reasonable accommodations are offered and genuine good faith efforts are made in this regard, then Canadian courts are willing to decide in favour of the defendant. However, these efforts must be substantial. With respect to academic deference, Canadian courts seem less likely to blindly defer to the decisions of academic decision makers. While I have been quite critical of the ADA in this dissertation, I think that it is inappropriate for me to finish this research and analysis without acknowledging some of the benefits of this statute. The extensive publicity surrounding the passage of the ADA made employers aware of the need to accommodate those with disabilities. As a result, many employers, sought to comply with the law and avoid litigation. They made arrangements to provide accommodations and conduct their business matters in a non-discriminatory manner. Universities, colleges and professional organizations responded in a similar fashion. This has provided many people with disabilities employment and academic opportunities that they would not otherwise have. In addition, there is wide public perception that the ADA is a powerful instrument for those with disabilities. Cases like Guckenberger v. Boston University, discussed in Chapter V and the very recent decision in Brady v. Wal-Mart, discussed in Chapter IV, warn defendants that the financial costs of transparent discrimination may be very high. These cases reinforce the public perception that plaintiffs have rights in spite of the fact that most claims brought to the courts are won by defendants. The statutory obligations of the ADA also require that all new public buildings be designed in a barrier free manner. Existing buildings had to be refitted so as to remove architectural barriers. In fact, specific dates were established for compliance with architectural barrier provisions of the ADA. As a result, great efforts have been made by the real estate development industry, in the United States, to comply with these ADA mandates. No similar mandates for architectural barrier removal exist in Canada. Instead, those facing barrier removal and physical access discrimination must rely on individual filings with human rights tribunals for redress. This is clearly an insufficient mechanism for dealing with all discrimination claims. Legislative mandates for barrier removal are essential. If the ADA continues to be interpreted in a manner so openly antagonistic to disability claims, amendment of the ADA may be

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necessary. Even without such amendments, I am optimistic that, in time, the courts will develop improved judicial instruments for evaluating disability claims. This will produce better and new impartial decisions. This together with new advances in technology will create an optimistic outlook for persons with disabilities who are currently not “a qualified individual,” not “otherwise qualified,” or not “substantially limited” and not protected by legislation. I am sure the future will better than the past.

CASES REFERENCED Alberta Dairy Pool v. Alberta Human Rights Commission, (1990) 2 S.C.R. 489, 12 CHRR D/417. Albertson’s Inc. v. Kirkinburg, 527 U.S. 555 (1999), 119 S.Ct. 2162. Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir 1998). Americans with Disabilities Act, 42 U.S.C. § 12101 (1994). Argen v. New York State Board of Law Examiners, 860 F Supp. 84 (WDNY 1994). Arnold v. Canada, (1997) 1 F.C. 582. Arnold v. United States Parcel Service Inc., 136 F.2d 854 (1st Cir. 1997). Auton (Guardian ad litem of) v. British Columbia (Attorney General), (November 19, 2004) 2004 SCC 78. Baerga v. Hospital for Special Surgery, No. 97 Civ. 0230 (DAB), 2003 WL 22251294 (SDNY, Sept. 30, 2003). Bahlsen v. Canada (Minister of Transport), (1997) 1 F.C. 800. Banks v. Babbitt, 163 F.3d 605, 1998 WL 667448 (9th Cir. Alaska, 1998). Bates v. Long Island RR Co., 997 F.2d 1028 (2d Cir. 1993). Barnes v. Canada Life Assurance Co., (1994) 24 C.H.R.R. D/409. Barth v. Gelb, 2 F.3d 1180 (DC Cir. 1993). Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094, affirmed in part, vacated in part, 156 F.3d 321 (2nd Cir. 1998), on certiorari, 119 S. Ct. 2388, vacated and remanded to Second Circuit, 226 F. 3d 69 (2nd Cir. 2000), and remanded to the District Court for additional fact finding. 237

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Case Referenced

Beck v. University of Wisconsin, 75 F.3d 1130 (7th Cir. 1996). Betts v. University of Virginia, 191 F.3d.447 (4th Cir. 1999). Berg v. University of British Columbia, (1993) 2 SCR 353, 102 DLR (4th) 665 Beznochuk v. Spruceland Terminals Ltd., (1995) B.C.J. No 2351, DRS 9600727. Binder v. CNR (1985) 2 S.C.R. 561; 23 D.L.R. (4th) 481. Board of Trustees of the University of Alabama v. Garrett, (2001) WL 173556 (U.S. Ala.). Boehm v. National System of Baking Limited, (1990) 87 C.L.L.C. p 17,013 (Ont. HRC). Bogonesse v. Ecole Secondaire du Mont-Bruno, (1996) 30 CHRR D/61 (Que. Trib). Bolton v. Scrivner, (10th Cir. 1994) 36 F.3d 939. Bonner v. Ontario (Ministry of Health), (1992) 16 C.H.R.R. D/485, 92 C.L.L.C. 17,019. Borkowski v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995). Boucher v. Canada (Correctional Service), (1988), C.H.R.D. No.3 T.D. 3/88. Brady v. Wal-Mart, New York Times, Section C3, February 24, 2005. British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (1999) S.C.J. No. 46, 3 S.C.R. 868 (the case is often referred to as Meiorin after the employee bringing the case).

Cases Referenced

239

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