V: Right to Work

Under article 27 of the Convention, State Parties recognize the right of persons with disabilities to work on an equal basis with others. State Parties are required to take measures to ensure, that persons with disabilities can earn a living

by work freely chosen or accepted in a labour market,

and that work environments are

open, inclusive and accessible to persons with disabilities. ²⁹⁴

In Canada, the primary source of law for protecting the rights of persons with disabilities in the employment area is federal and provincial human rights legislation. In addition, the federal and provincial governments have enacted legislation and developed policies to promote employment of persons with disabilities.

Note #294

Ibid, art 27(1).

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Prohibition of Discrimination, Protection of Rights and Accommodation

State Parties must ensure that discrimination on the basis of disability is prohibited in matters concerning employment,

including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions. ²⁹⁵

Also, State Parties must ensure that reasonable accommodation is provided to persons with disabilities. ²⁹⁶ Human rights statutes in Canada provide very broad protection from discrimination with respect to employment. ²⁹⁷ For example, the human rights legislation in Manitoba states that

No person shall discriminate with respect to any aspect of an employment or occupation (emphasis added). ²⁹⁸

The definition of any aspect includes the opportunity to participate or continue to participate in the employment; the customs, practices and conditions of the employment; training, advancement or promotion; seniority; any form of remuneration or other compensation received; and any other benefit, term or condition. ²⁹⁹

Note #295

Ibid, art 27(1)(a).

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Note #296

Ibid, art 27(1)(i).

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Note #297

CHRA, supra note 51; BC HRC, supra note 51; HRA, supra note 51; OHRC, supra note 51, s 5(1); Québec Charter, supra note 51, s 16. The prohibition also extends to employment agencies: see BC HRC, supra note 51, s13(2); MHRC, supra note 51, s 14(5); HRA, supra note 51, s 14(3); OHRC, supra note 51 s 23(4); Québec Charter, supra note 51, s 18.

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Note #298

MHRC, supra note 51, s 14.

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Note #299

Ibid, s 14(2).

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The federal, BC, Manitoba, Newfoundland and Ontario legislation all provide an exception affecting the above prohibition: where discrimination relates to a bona fide occupational requirement or qualification (BFOR), it does not contravene the legislation. ³⁰⁰ In each case, to show a BFOR, statute and case law dictates that there must be accommodation to the point of undue hardship. ³⁰¹ Québec is the only jurisdiction which does explicitly incorporate this exception into its legislation. Once an employee has shown that something is prima facie discriminatory on the ground of disability, the onus falls on the employer to show that it is a BFOR. ³⁰² The common law provides a test from the case of British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union (BCGSEU) (Meiorin Grievance). ³⁰³ In this case, the Supreme Court of Canada set out the following three-step test for establishing that an employment standard is a BFOR:

1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related 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 upon the employer. ³⁰⁴

Note #300

CHRA, supra note 51, ss 15(1)(a); BC HRC, supra note 51, s 13(4), MHRC, supra note 51, s 14(1); HRA, supra note 51, s 14(2); OHRC, supra note 51, ss 11(1), 17.

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Note #301

CHRA, supra note 51, s 15(2); Entrop v Imperial Oil Ltd (2000), 50 OR (3d) 18, 189 DLR (4th) 14 at paras 75, 77-85 (CA) [Entrop]; MHRC, supra note 51, s 9(1)(d), 12; Leonard v Newfoundland and Labrador (Human Rights Commission), 2011 NLTD(G) 48, 307 Nfld & PEIR 236 at para 46; OHRC, supra note 51, ss 11(2), 17(2), 17(3).

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Note #302

Entrop, ibid at para 63.

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Note #303

[1999] 3 SCR 3 [Meiorin].

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Note #304

Ibid at para 54.

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Under the federal, BC, Manitoba, Ontario and Newfoundland statutes, employment advertisements cannot express any qualification or preference based on a prohibited ground of discrimination. ³⁰⁵ Québec prohibits distributing, publishing or publicly exhibiting a

notice, symbol or sign involving discrimination

or authorizing someone to do so. ³⁰⁶ The federal, Manitoba, Newfoundland and Ontario schemes also prohibit discrimination on application forms as well as through written or oral inquiries. ³⁰⁷ In Ontario, there is an exception allowing the asking of questions at a personal employment interview concerning a prohibited ground of discrimination, provided that discrimination on such a ground is permitted in the statute. ³⁰⁸ In Québec application forms and employment interviews cannot require information regarding any prohibited ground unless it is in regards to a type of employment specified in the statute or for an affirmative action program that exists at the time of the application. ³⁰⁹

Note #305

CHRA, supra note 51, s 8; BC HRC, supra note 51, s 11; MHRC, supra note 51, s 14(3); OHRC, supra note 51, s 23(1); HRA, supra note 51, s 14(5).

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Note #306

Québec Charter, supra note 51, s 11.

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Note #307

CHRA, supra note 51, s 8; MHRC, supra note 51, s 14(4); HRA, supra note 51, s 14(5); OHRC, supra note 51, s 23(2).

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Note #308

OHRC, ibid, s 23(3).

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Note #309

Québec Charter, supra note 51, ss 18.1, 20.

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Right to Just and Favourable Conditions of Work

In addition to the general prohibition of discrimination in employment, Canadian human rights legislation includes more specific rules that apply in the employment setting. The federal, BC, Newfoundland and Québec statutes have equal wage provisions. ³¹⁰ While the federal and BC legislation requires equal wages between the sexes, Newfoundland and Québec require equal wages generally where employees perform the same or similar work. ³¹¹ In the federal, BC, Manitoba and Newfoundland schemes, wages cannot be reduced to become compliant with the legislation. ³¹² In the federal, BC, Newfoundland and Québec statutes, there are exceptions to the equal wage requirement, for example, where there is a reasonable factor that justifies the difference. ³¹³ In contrast with equal pay legislation, under The Employment Standards Code in Manitoba, an employer may apply for a permit authorizing the employer to pay an employee less than minimum wage where a satisfactory arrangement between the employer and employee with a mental or physical disability is made. ³¹⁴ Before a permit can be issued, the employee's ability to perform the work in the proposed arrangement must have been evaluated. ³¹⁵

Note #310

CHRA, supra note 297, s 11; BC HRC, supra note 297, s 12; HRA, supra note 297, s 16(1); Québec Charter, ibid, s 19.

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Note #311

HRA, ibid, s 16(1); Québec Charter, ibid.

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Note #312

CHRA, supra note 51, s 11(6); BC HRC, supra note 51, s 12(4); MHRC, supra note 51, s 14(12)(b); HRA, ibid,s 16(3).

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Note #313

CHRA, ibid, 11(4); BC HRC, ibid, s 12(3); HRA, supra note 297, s 16(1); Québec Charter, supra note 51, s 19.

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Note #314

SM 1998, c 29, s 85.

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Note #315

Employment Standards Regulation, Man Reg 6/2007, s 13(1).

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Human rights statutes in Canada protect against harassment. ³¹⁶ Although BC's statute does not expressly prohibit harassment, the express prohibition against discrimination has been found to include harassment. ³¹⁷ The federal and Ontario schemes specifically prohibit sexual harassment, while Manitoba, Newfoundland and Ontario additionally expressly prohibit sexual solicitation. ³¹⁸ Manitoba's harassment provision is unique as it states that knowingly permitting or failing to take reasonable steps to terminate harassment will also result in liability. ³¹⁹ Reprisal for filing a complaint or instituting a proceeding is generally prohibited in the federal, Manitoba and Ontario statutes. ³²⁰ Ontario's occupational health and safety legislation requires that employers prepare policies with respect to workplace violence and harassment and implement the policies through programs. ³²¹ Manitoba's WSHA scheme also requires employers to develop and implement policies to prevent harassment and workplace violence, and ensure that workers comply with the policies. ³²²

Note #316

CHRA, supra note 51, s 14(1)(c); BC HRC, supra note 51, s 13; MHRC, supra note 51, s 19(1)(a); HRA, supra note 51, s 17; OHRC, supra note 51, s 5(2); Québec Charter, supra note 51, s 10.1.

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Note #317

British Columbia Ministry of the Attorney General, Human Rights in British Columbia.

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Note #318

CHRA, supra note 51, s 14(2); MHRC, supra note 51, ss 19(1), 19(2); HRA, supra note 51, s 18; OHRC, supra note 51, ss 7(2), 7(3).

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Note #319

MHRC, supra note 51, s 19(1)(b).

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Note #320

CHRA, supra note 51, s 14.1; MHRC, ibid, s 20; OHRC, supra note 51, s 8.

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Note #321

Occupational Health and Safety Act, RSO 1990, c O.1, ss 32.0.1, 32.0.2, 32.0.6, 32.0.7.

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Note #322

Workplace Safety and Health Regulation, Man Reg 217/2006, ss 10.1-10.3, 11.1-11.3.

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Promotion of Employment

State Parties are required to employ persons with disabilities in the public sector, and to promote employment in the private sector as well as opportunities for self-employment and entrepreneurship. ³²³ The federal government has enacted the Employment Equity Act, which has as its purpose

to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfilment of that goal, to correct the conditions of disadvantage in employment experienced by ... persons with disabilities. ³²⁴

The statute applies to private sector employers and to most public sector employers. ³²⁵ Every employer under the statute is required to implement employment equity by identifying and eliminating employment barriers, instituting positive policies and practices, and making reasonable accommodations to

ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer's workforce that reflects their representation

in the Canadian workforce. ³²⁶ An employer is not required to take a measure that would cause undue hardship. ³²⁷ Employers are required to prepare an employment equity plan specifying measures to be taken and long term goals. Employers must then make all reasonable efforts to implement the plan and monitor its implementation on a regular basis. ³²⁹

Note #323

Convention, supra note 2, arts 27(1)(f), 27(1)(g), 27(1)(h).

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Note #324

SC 1995, c 44, s 2.

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Note #325

Ibid, s 4(1).

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Note #326

Ibid, s 5.

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Note #327

Ibid, s 6(a).

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Note #328

Ibid, s 10.

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Note #329

Ibid, s 12.

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The provinces also have initiatives in place to promote the employment of persons with disabilities. Some of these aim to raise awareness about the benefits of hiring persons with disabilities, and connect employers with persons with disabilities. ³³⁰ Other approaches are compulsory. In Ontario employers will soon be required to notify employees and the public about available disability accommodation, ³³¹ or in the case of a public body in Québec, to analyze its workforce and take other steps to promote disability employment equity. ³³²

Note #330

WorkAble Solutions BC, WorkAble Solutions ~ Taking action on employing persons with disabilities!; Manitoba Family Services and Labour, Hiring Someone with a Disability Is Good Business: And That's the Bottom Line; Newfoundland Labrador Department of Advanced Education and Skills, Disability Policy Office; SSWI, supra note 170, s 25(g),

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Note #331

Integrated Accessibility Standards, O Reg 191/11, ss 21-25;

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Note #332

An Act Respecting Equal Access to Employment in Public Bodies, RSQ, c A-2.01, ss 3, 9, 13. For other Québec legislative provisions promoting disability employment equity, see Québec Charter, supra note 51, s 57;...;

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Training, Guidance and Programmes

State Parties must promote the training and provision of programs in technical and vocational guidance, assistance in finding, obtaining, maintaining and returning to employment, as well as in professional rehabilitation and job retention. ³³³ The federal Opportunities Fund for Persons with Disabilities provided by Service Canada funds national, regional and local projects that assist persons with disabilities in finding and keeping employment or self-employment. ³³⁴ The federal government has also entered into agreements with the provinces, known as the Labour Market Agreements for Persons with Disabilities (LMAPD). ³³⁵ The agreements share the costs among the federal and provincial governments for the funding of programs and services that help persons with disabilities participate in the labour market. ³³⁶ These agreements allow the provinces to decide on the best approach to assist persons with disabilities in their respective jurisdictions. ³³⁷ The provinces are required to deliver employment programs within five priority areas: (1) education and training; (2) employment participation; (3) employment opportunities; (4) connecting employers and persons with disabilities; and (5) building knowledge. ³³⁸ Provincial programs offer a variety of employment-related services for persons with disabilities. These include vocational planning, job training and placement, and employment support. ³³⁹ Provincial funds have also been established to create and supplement services and programs that aid persons with disabilities in finding and maintaining employment and self-employment. ³⁴⁰

Note #333

Convention, supra note 2, arts 27(1)(d), 27(1)(e), 27(1)(k).

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Note #334

Service Canada, Opportunities Fund for Persons with Disabilities

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Note #335

Human Resources and Skills Development Canada, Labour Market Agreements for Persons with Disabilities.

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Note #336

Ibid.

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Note #337

Ibid.

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Note #338

Ibid.

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Note #339

British Columbia Ministry of Social Development, Employment Program for Persons with Disabilities; Manitoba Family Services and Consumer Affairs, marketAbilities Program; Manitoba Family Services and Consumer Affairs, Rewarding Work: Gateway to Opportunities; Newfoundland Labrador Department of Advanced Education and Skills, Employability Assistance for Persons with Disabilities; Canada-Ontario Labour Market, supra note 205 at 7; SSWI, supra note 170, ss 45-50.

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Note #340

See e.g. BC Ministry of Social Development, Minister's Council on Employment for Persons with Disabilities; Rewarding Work: Gateway to Opportunities, ibid; Services and Supports, supra note 236; Disability Services Ontario, Community Participation Supports and Passport.

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Labour and Trade Union Rights

State Parties must ensure that persons with disabilities can exercise their labour and trade union rights on an equal basis with others. ³⁴¹ The federal and provincial human rights statutes generally prohibit discriminatory membership with reference to organizations. ³⁴² Depending on the jurisdiction, this prohibition may specifically include trade unions, employers' organizations, occupational associations, professional associations, trade associations, employee organizations, self-governing professions, professional orders or associations of persons carrying on the same occupation.

Note #341

Convention, supra note 2, art 27(1)(c).

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Note #342

CHRA, supra note 51, s 9(1); BC HRC, supra note 51, s 14; MHRC, supra note 51, s 14(6); HRA, supra note 51, s 14(4); OHRC, supra note 51, s 6; Québec Charter, supra note 51, s 17.

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