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What exactly constitutes a ‘disability’? (Part III)

eyeWhat exactly constitutes a “disability” under human rights legislation?

Employers should know that the term is broad, and the Supreme Court of Canada has favoured a wide and liberal interpretation.

Some jurisdictions provide a list of ailments (stating that the list is not comprehensive) in their definition. For instance, in Ontario, disability is defined as:

  • 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, includes diabetes mellitus, epilepsy, a brain injury, 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 other animal or on a wheelchair or other remedial appliance or device
  • A condition of mental impairment or a developmental disability
  • A learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language
  • A mental disorder
  • An injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act

On the other hand, some jurisdictions have brief yet broad definitions, such as the federally regulated jurisdiction, which defines disability as any previous or existing mental or physical disability, and includes disfigurement and previous or existing dependence on alcohol or a drug.

Some jurisdictions define “physical disability” and “mental disability” separately. For example, in Alberta, “mental disability” means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder. A “physical disability” means 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, includes epilepsy, paralysis, amputation, lack of physical co‑ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, and physical reliance on a guide dog, service dog, wheelchair or other remedial appliance or device.

Moreover, some jurisdictions do not specifically define the term “disability” in their human rights legislation. For instance, British Columbia does not define disability, but the term has evolved to include protection for people who have, or are perceived to have, mental or physical disabilities whether visible or non-visible, permanent or temporary.

Finally, some jurisdictions define the term, “physical disability or mental disability”. Nova Scotia defines it as an actual or perceived:

  • Loss or abnormality of psychological, physiological or anatomical structure or function
  • Restriction or lack of ability to perform an activity
  • Physical disability, infirmity, malformation or disfigurement, including, but not limited to, epilepsy and any degree of paralysis, amputation, lack of physical co-ordination, deafness, hardness of hearing or hearing impediment, blindness or visual impediment, speech impairment or impediment or reliance on a hearing-ear dog, a guide dog, a wheelchair or a remedial appliance or device
  • Learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language
  • Condition of being mentally impaired
  • Mental disorder
  • Dependency on drugs or alcohol

Although the definitions might not have exactly the same wording, they make the same point: the definition of disability is very broad, and human rights tribunals along with the courts will interpret it as such. In fact, discrimination based on disability may be based as much on perceptions, myths and stereotypes as on the existence of actual functional limitations.

When considering whether a person has been discriminated against because of disability, it’s more important to consider how the person was treated than to prove that the person has physical limitations or an ailment. It’s not necessary for individuals alleging discrimination to prove the existence of a disability with extensive scientific evidence. A disability may be the result of a physical limitation, an ailment, a perceived limitation or a combination of all of these factors.

Some ailments may strike employers as impairments that obviously constitute a disability. For instance, most employers would be aware of the fact that an employee with a hearing impediment suffers from a disability that must be accommodated to the point of undue hardship.

But what about an employee who has an asthma attack when in the presence of perfume, cologne or strongly scented products? Awareness is increasing regarding this impairment, but it might not be obvious, and it may be more complicated to deal with. Although asthma is considered a physical disability, some employers may not realize the extent of the impairment and that impact that asthma triggers have in the workplace.

Discrimination typically arises because of a lack of understanding about the particular disability. Employers’ beliefs influence their actions and decision-making abilities with regard to employment. One example of this is an employer deciding not to hire a person who needs to use a wheelchair because the employer does not want to deal with the inconvenience of ensuring the work environment is wheelchair accessible. Another example is an employer refusing to promote an employee because the employee has a learning disability.

I’m wondering: has your company been faced with a situation where the employer was not sure if an employee’s ailment constituted a disability? If so, how did the employer handle the situation?

Christina Catenacci
First Reference Human Resources and Compliance Assistant Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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