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TOWARDS A BARRIER-FREE SOCIETY FOR PERSONS
WITH DISABILITIES BY THE YEAR 2000September 19, 1995
Prepared by the Ontarians with Disabilities Act Committee, September 1995
The purpose of this brief is to set out the nature of the serious problem which now confronts persons with disabilities in Ontario, to identify the reasons why an Ontarians with Disabilities Act is needed to tackle these problems, and to delineate core elements which an Ontarians with Disabilities Act should include.
The Ontarians with Disabilities Act Committee
The Ontarians with Disabilities Act Committee (O.D.A. Committee) is a voluntary, nonprofit and non-partisan coalition of individuals with disabilities and organizations concerned with the rights of persons with disabilities. It has formed to advocate for the passage in Ontario of a strong and effective new law aimed at achieving a barrier-free Ontario in which persons with disabilities can fully participate based on their individual merit. The O.D.A. Committee's membership reflects a broad range of experience with a diverse spectrum of disabilities.
The Problem.
Persons with disabilities are a seriously disadvantaged minority group in Ontario. They are substantial in number (approximately 15% of the population). They cut across all ages, sexes, income groups, races, religions and ethnic/cultural communities. Their numbers are the greatest amongst senior citizens, s aging is one of the greatest causes of disabilities. Hence, the size of Ontario's population of persons with disabilities is wing as the population ages. Put simply, persons with disabilities tend to be among society's most vulnerable and disadvantaged.
Disability touches everyone's life at some point. Everyone either now themselves has a disability, or has someone dear to them who has a disability, or one day will acquire a disability. Disability is therefore everyone's concern, a fact that ultimately cannot be permanently avoided.
Persons with disabilities are disproportionately over-represented among the unemployed and under-employed. They now face serious and arbitrary barriers which prevent their full and equal participation based on individual merit in employment, education, job training, housing, public and private transportation, goods, facilities, services, and other key opportunities in Ontario. As a result, far too many persons with disabilities live in conditions of poverty, isolation and despair in the midst of one of the richest societies in the world.
Many different kinds of unfair barriers confront persons with disabilities who seek to participate in the mainstream of Ontario life, which prevent them from living to their potential. Most buildings are not physically accessible to mobility-impaired persons who use a wheelchair. Those minority of buildings which have some provision for accessibility are often not fully accessible. The public mistakenly believes and expects
that building codes now require all public buildings to be made accessible to persons with disabilities. In reality, building codes merely require disability access to be incorporated into new buildings, and to old buildings only to the extent that they are renovated.
In addition to problems in gaining access to buildings, persons with disabilities often find that goods, services and facilities which are provided to the public are rarely if ever designed with the needs of persons with disabilities in mind. People with disabilities thus often encounter serious, and even insurmountable barriers when seeking to make use of many products, public transit facilities, private and government services and the like.
In the workplace, persons with disabilities often confront frustrating impediments to their securing employment based on their individual merit. Many if not most job descriptions are written on the erroneous assumption that only able-bodied persons might endeavour to do the job. Employers often acquire and use office equipment and technology which are not fully usable by persons with disabilities. Employers and coworkers are all too frequently unaware of their existing duty to accommodate the needs of persons with disabilities in the workplace as has been required for years under the Ontario Human Rights Code, and/or do little if anything to meet this duty. Collective agreements governing the workplace can include provisions which may be intended to operate in a non-discriminatory fashion. These nevertheless can and do at times impede the full and equal participation of persons with disabilities in the workplace, by creating arbitrary contractual barriers to their being employed, promoted, compensated on equal terms, or having their disability-related needs accommodated in the workplace as is required under the Ontario Human Rights Code. As well, persons with disabilities too frequently do encounter harassment in the workplace because of their disability.
Finally, when endeavouring to participate in any facet of Ontario life, persons with disabilities commonly encounter substantial attitudinal barriers when dealing with nondisabled persons. Many nondisabled persons still entertain false, patronizing and stereotypical attitudes based on misinformation and mythology, which lead them too often to underestimate the abilities of persons with disabilities, while heaping pity upon them for the perceived misery in which their disability must force them to live.
Whether physical (such as steps) or attitudinal (such as stereotypes), these numerous barriers have their roots in misunderstandings of disabilities, and deep-rooted historic patterns of exclusion. They can pose a massive impediment to persons with disabilities participating in employment and other life opportunities based on their actual individual merit.
As well, in addition to this litany of pre-existing arbitrary and unfair barriers that have their roots in the past, there are now numerous pew barriers that are even now being created afresh which will confront persons with disabilities in the immediate future. These new barriers can at times be the most pernicious, as they could easily be prevented now by concerted, low-cost societal efforts. If not prevented now, they will serve to make it even harder for persons with disabilities to participate in Ontario. To the extent that the public is aware at all of the lack of equal opportunity for persons with disabilities in Ontario, They tend to believe that this is solely due to pre-existing barriers in society. Most people are oblivious to the fact that society is in the process of creating new barriers at this very moment which will further hinder equality of opportunity for persons with disabilities.
For example, new technologies are now being invented and implemented to make life more convenient for the public at home, in school and the workplace. Yet these new technologies often include new features which increasingly impede full and equal use by persons with disabilities. Personal computers, now are found in almost every office, many schools and increasingly in homes. In the 1980s, adaptations were invented for personal computers to enable blind and visually impaired persons, among others to make use of them through Braille printers and speech synthesizers. Yet in the 1990s, the increasing use of pictorial graphics in computer software such as Microsoft Windows in lieu of pure printed text presentations on the computer screen has made it extremely difficult for visually impaired persons to continue to function on a footing of equality when working with computers. This same trend can be found to occur in connection with many new consumer products which could easily be designed to be fully usable by all, including persons with disabilities. As these new technologies find their way into workplaces, school programs and public services and facilities, persons with disabilities thereby encounter even greater barriers then ever before in seeking to fully and equally participate in these opportunities based on their personal merit.
In recent years, there have been some steps taken toward the removal of some barriers confronting persons with disabilities in the workplace and elsewhere in Ontario society. However, these have been limited in scope and in effectiveness. Discrimination against persons with disabilities and widespread stereotypical and inaccurate attitudes toward them still pervade, which prevent their full and equal participation in society.
Efforts Towards Equality.
There have been some important advances in the law in favour of equality for persons with disabilities. However, these have only had limited success in actually changing things for the better for persons with disabilities. For example:
(a) The Canadian Charter of Rights and Freedoms includes an important equality guarantee for persons with disabilities in Section 15. However, the Charter only applies to the actions of governments, and not the private sector. Thus many of the places in society where persons with disabilities are denied equality of opportunity to fully participate based on their individual merit are beyond the Charter's reach. As well, to take a Charter case to court costs massive sums of money, and can take years while a claim slowly wends its way up through the courts on appeal after appeal. Many persons with disabilities have neither the resources, the time to wait nor the willingness to undertake the formidable ordeal of mounting protracted, complex constitutional litigation against the federal or provincial government. This is demonstrated by the fact that among the thousands of Charter cases decided in Canada's courts, extremely few involve equality rights claims by persons with disabilities.
(b) The Ontario Human Rights Code includes a broad protection against discrimination based on disability. However, employers, landlords and providers of goods and services regularly ignore and/or breach the requirements of the Code. To engage the Code, it is usually necessary for an individual person with a disability to be prepared to fife a complaint, and become a private law-enforcer in a tough, adversarial process, something which many persons with disabilities would likely prefer not to have to do. For those who do choose to file a human rights complaint, they must suffer from undue delays of months and months before the Human Rights Commission even starts to investigate their case, and then years before a decision is made on whether the complainant will receive the most basic procedural entitlement - a hearing before an independent and impartial Board of Inquiry to determine if their human rights were violated. Human rights complaints often take so many years to litigate that the case can often become irrelevant to the complainant by the time a decision is reached. Where a complainant is prepared to shoulder the strain and delay of the human rights process, and proves before a Board of Inquiry at they had been the victim of discrimination, Boards of Inquiry often order only inadequate if not inconsequential sums as monetary compensation, calling to question whether it is worth it for the victim of discrimination to subject themselves to the Human Rights Commission process in the first place. Even if a person with a disability is willing and able to endure the stress, delays and hardship of seemingly endless human rights proceedings, and is fortunate enough to win their case before a board of inquiry, the case can drag on for years afterwards by way of appeals through the various courts.
Moreover, the Human Rights Code provides little in the way of meaningful guidance to employers, landlords, and the providers of goods, services and facilities who wish to bring their conduct in line with the law. It merely tells them in grand but unspecific terms not to discriminate, and to accommodate the needs of persons with disabilities up to the point of undue hardship. The Human Rights Code, like the Charter, includes guarantees of equality which, while broad, are also very vague. It does not tell a landlord how to ensure that his or her building is accessible. It does not tell a trust company or other financial institution how to ensure that their new automatic banking machines can be used effectively by a visually-impaired person, or a person with a mobility impairment. It does not tell a computer software company how to ensure that new software can be used by persons with disabilities, by being compatible with speech synthesizers for visually-impaired persons, modified keyboards for persons with motor impairments, etc. It does not direct public or private transit services on the standards to which they must comply to ensure that persons with mobility disabilities are able to have full and equal access to public transit services. It does not tell employers, landlords, or providers of goods or services how long they have to modify the* programs, facilities, products and the like.
For many if not most who extend opportunities for employment, housing, goods, services or facilities to the public, the preferred course of action has been to go about their business as usual, without regard to the needs of persons with disabilities. This practice may be deliberate, or it may simply be based on ignorance or misconception about the desire of persons with disabilities to fully participate in society's mainstream based on their individual merit. By this common business practice, many employers, landlords, and providers of goods, services and facilities, whether public or private sector only start to consider changing their practices when first confronted with actual human rights litigation. This "Discriminate Now - Litigate Later" approach arises from the fact that the Human Rights Code's core method of law enforcement is personal litigation brought after the fact. The Code does not have a meaningful process to motivate or facilitate parties bringing their conduct into line with the law by removing existing barriers confronting persons with disabilities or by preventing the erection of new barriers before they happen.
(c) Even if the new Employment Equity Act were not soon to be repealed, it does not adequately address these difficulties. It deals only with employment. It does not deal with removal of barriers confronting persons with disabilities in other important areas of life in Ontario such as housing, education, transportation, and the provision of goods and services for public consumption. The Employment Equity Act's standards for promoting equity in employment are quite weak. Under it, persons with disabilities have very little opportunity for meaningful input into
the employment equity plans under that Act. Important employment barriers confronting persons with disabilities such as seniority clauses are given significant insulation from equity review. Finally, the Employment Equity Act does not provide specific standards regarding the duty to accommodate persons with disabilities in the workplace. Moreover, based on the experience within the OPS, employment equity does not necessarily result in actual progress for persons with disabilities. Over the four years since the government of Ontario adopted an accelerated employment equity program in 1990, the representation of persons with disabilities in the OPS has dropped from 4.3% (in June, 1989) to 3.8% (in March, 1994).' Moreover, over the period of May, 1993 to March, 1994 the government of Ontario hired some 1,565 persons including 571 permanent and 994 contract staff. Of these, only 19 were persons with disabilities, some 17 on contract and 2 permanent. Thus, it has been our experience that persons with disabilities are under-represented among new persons hired within the OPS, while being over-represented among those losing their positions during downsizing.
(d) Voluntary public education on the need to extend equality of opportunity to persons with disabilities in all aspects of Ontario life, combined with voluntary equal opportunity programs within governments and private organizations, while helpful, have been proven over and over again to be insufficient to redress the serious plight confronting persons with disabilities. Neither normal market forces nor gradual increases in the public's understanding of the situation confronting persons with disabilities have been or will be sufficient to redress the impediments which prevent persons with disabilities all too often to participating fully in society based on their individual merit. Members of the O.D.A. Committee have been extensively involved for years in conducting public education on various disability issues. From this experience they have learned that though helpful, these activities tend only to have limited and largely short-term impact.
Put simply, even with all of the foregoing initiatives, persons with disabilities still face massive barriers in all aspects or Ontario life, and new barriers are being erected all the time. These initiatives, while helpful, will not ensure that persons with disabilities enjoy life in a barrier-free society, or even a barrier-reduced society. New, innovative governmental initiatives are required to promote the aim of equal opportunity for persons with disabilities to fully participate in Ontario society to the extent of their individual merit, if the current legacy of ongoing discrimination is to be redressed.
The Cost to Society of Denying Equal Opportunity to Persons with Disabilities.
When public discussion turns to the barriers confronting persons with disabilities, an almost automatic reaction by many is that everyone would agree that we should have a barrier-free society for persons with disabilities, but the cost of achieving this is just too high for us to be able to afford. Yet this superficial reaction turns out to be wrong, for several reasons.
First, the cost of removing existing barriers confronting persons with disabilities is often far lower than most would initially have guessed. Modern technology and a little imagination goes a long way here.
Second, it costs extremely little at worst, and at best, nothing at all to act now to prevent the creation of new barriers. For example, when a builder sets about to design and build a new building, it would cost him or her virtually nothing to design it to be accessible from the very outset.
Third, the limited cast of creating a barrier-free society for persons with disabilities must be assessed as compared to the massive cost to society if existing barriers are permitted to stay, and new ones are allowed to be created. Discrimination against persons with disabilities carries a huge social price tag. It forces so many of them onto social assistance, when their preferred place is in productive jobs. It prevents many from fully participating, in education and training opportunities which would, if undertaken, help them realize their true potential in the workplace. Put simply, the cost of achieving a barrier-free society for persons with disabilities pales in comparison to the societal cost of retaining them.
Fourth, the removal of existing barriers and the prevention or new ones helps not only those who now have a disability, but in one way or another, all members of society. It helps those who will acquire a disability in the future due to aging, illness or injury. It aids families of persons with disabilities who may otherwise have to shoulder burdens which their disabled relative would prefer to handle themselves. It helps parents who use baby-strollers and shoppers who use shopping carts, and who now confront the same obstructions such as staircases that impede persons using wheelchairs.
Another example is real time captioning. It makes television programs and also note taking in meetings/classrooms accessible to people with hearing loss. Captioning has other uses as well. It can help prompt literacy for people learning English as a second language, children learning to read and the population in general. It creates a global accessibility that will include both disabled and non-disabled persons.
Fifth, concerted efforts at achieving a barrier-free society for persons with disabilities can be good for the economy. It unleashes into the workplace the talents of so many persons with disabilities who have previously been frozen out. It also can help Ontario develop adaptive technologies for persons with disabilities which can be sold here and around the world in a new, challenging sector of the economy.
When it comes to undertaking serious efforts at achieving a barrier-free society for persons with disabilities, there are no losers. There are only winners. On the other hand, the status quo, which includes many unremoved barriers and even more being created, involves many losers and no winners at all.
The Solution.
General.
The Ontario Human Rights Code now gives a good basic framework for accommodating persons with disabilities up to the point of undue hardship. It sketches out this duty on employers, landlords, service providers, manufacturers and others in very general terms.
There is a pressing need for a new initiative to supplement the Ontario Human Rights Code which would breathe life into and expand upon these broad ideas. This initiative would have two objectives. First, it would effectively promote the removal of serious existing barriers confronting persons with disabilities, who seek to fully and equally participate in 1 aspects of Ontario life based on their individual merit. Second, it would prevent the erection of new barriers in Ontario, a number of which are being created at this very moment.
The key to this initiative is the enactment of new legislation which would provide very specific directions to employers, landlords, service providers, manufacturers and sellers of goods, and the like on precisely what existing barriers must be removed and what new barriers must be avoided, how this should be done, and how persons with disabilities should be accommodated. This new law should also establish realistic and workable timetables for the removal of barriers and the provision of full accommodation.
The process by which these rules are made should not leave it to individual victims of discrimination to be forced to come forward and complain against individual, offending employers, landlords and the like in adversarial law suits as the sole or main method for enforcement. Rather, the process should include a co-operative effort involving persons with disabilities on the one hand, the affected industries on the other, with the Ontario government or the appropriate agencies of that government acting as the ultimate facilitator and decision-maker. Rules should be enacted into law which address the major sectors of Ontario society, such as employment, education, services, goods, facilities, housing, and transportation, where the immediate need for barrier removal and barrier prevention are most pressing.
A helpful model for this initiative is provided by the new Americans with Disabilities Act passed by the U.S. Congress during the presidency of George Bush. The ADA is the most comprehensive and far-reaching piece of anti-discrimination legislation for persons with disabilities in the Western World. It incorporates a strong and meaningful duty to accommodate the needs of persons with disabilities at federal and state levels, and provides for regulations which will make these standards precise, workable, and understandable.
The benefits of such legislation are substantial. if implemented, it would help avoid the cost which society must bear in social assistance payments to persons with disabilities when they are unable to support themselves due to the many barriers that impede their full and equal participation in the workplace. The increased employment of persons with disabilities based on their individual merit will be made much easier if the many barriers that face people with disabilities in transportation, housing, education, transportation, and access to goods, facilities and services are eliminated. Ontario would benefit greatly if more persons with disabilities were able to be taxpayers, contributing to society through their work efforts as well as their contributions to the public revenue.
The O.D.A. Committee therefore calls for the prompt enactment of a strong, effective and comprehensive Ontarians with Disabilities Act. It should reflect the following non-exhaustive list of general principles:
a) The purpose of the Ontarians with Disabilities Act should be to effectively ensure to persons with disabilities in Ontario the equal opportunity to fully and meaningfully participate in all aspects of life in Ontario based on their individual merit, by removing existing barriers confronting them and by preventing the creation of new barriers. It should seek to achieve a barrier-free Ontario for persons with disabilities by the year 2000;
b) The Ontarians with Disabilities Act's requirements should supersede all other legislation, regulations or policies which either conflict with it, or which provide lesser protections and entitlements to persons with disabilities;
c) The Ontarians with Disabilities Act should require companies, organizations, government entities and public premises to be made fully physically accessible to all persons with disabilities through the removal of existing physical barriers and the prevention of the creation of new barriers, within strict time frames to be prescribed in the legislation or regulations;
d) The Ontarians with Disabilities Act should require the providers of goods, services and facilities to the public to ensure that their goods, services and facilities are fully usable by persons with disabilities, and that they are designed to reasonably accommodate the needs of persons with disabilities. Included among services, goods and facilities, among other things, are all aspects of education including primacy, secondary and post-secondary education, as well as providers of transportation and communication facilities (to the extent that Ontario can regulate these) and public sector providers of information to the public e.g. governments. Providers of these goods, services and facilities should be required to devise and implement detailed plans to remove existing barriers within legislated timetables;
e) The Ontarians with Disabilities Act should require public and private sector employers to take pro-active steps to achieve barrier-free workplaces within prescribed time limits. Among other things, employers should be required to identify existing barriers which impede persons with disabilities, and then to devise and implement plans for the removal of these barriers, and for the prevention of new barriers in the workplace;
f) The Ontarians with Disabilities Act should provide for a prompt and effective process for enforcement. It should not simply incorporate the existing procedures for filing discrimination complaints with the Ontario Human Rights Commission, as these are too slow and cumbersome, and yield inadequate remedies.
g) As part of its enforcement process, the Ontarians with Disabilities Act should provide for a process of regulation-making to define with clarity the steps required for compliance with the Ontarians with Disabilities Act. It should be open for such regulations to be made on an industry-by-industry basis, or sector-by-sector basis. This should include a requirement that input be obtained from affected groups such as persons with disabilities before such regulations are enacted. It should also provide persons with disabilities with the opportunity to apply to have regulations made in specific sectors of the economy.
h) The Ontarians with Disabilities Act should also mandate the Government of Ontario to provide education and other information resources to companies, individuals and groups who seek to comply with the requirements of the Ontarians with Disabilities Act.
i) The Ontarians with Disabilities Act should also require the Government of Ontario to take affirmative steps to promote the development and distribution in Ontario of new adaptive technologies and services for persons with disabilities
j) The Ontarians with Disabilities Act should require the provincial and municipal governments to make it a strict condition of funding any program, or of purchasing any services, goods or facilities, that they be designed to be fully accessible to and usable by persons with disabilities. Any grant or contract which does not so provide is void and unenforceable by the grant-recipient or contractor with the government in question.
k) The Ontarians with Disabilities Act must be more than mere window-dressing. It should contribute meaningfully to the improvement of the position of persons with disabilities in Ontario. It must have real force and effect.
THE GOVERNMENT'S PROMISE.
The previous Ontario government did not introduce or develop an Ontarians with Disabilities Act. the absence of a government bill, a private member, Gary Malkowski, prepared and introduced Bill 168 in the spring of 1994, entitled the "Ontarians with Disabilities Act." This Bill received unanimous bi-partisan approval in the Ontario legislature at both first and second reading. It was referred to the legislature's Standing Committee on Justice which convened public hearings on the bill on short notice in December of 1994 That legislative process was cut short by the spring 1995 provincial election.
During the election campaign, the Ontarians with Disabilities Act Committee sought to secure commitments from each of the three major political parties to enact a strong and effective Ontarians with Disabilities Act, if elected to office. The Ontario Progressive Conservative Party committed itself to pass an Ontarians with Disabilities Act, by letter dated May 24, 1995. Premier Harris reiterated by letter dated July 25, 1995 that his Government would keep its electoral commitments.
This commitment should be seen in the context of the other electoral commitments made by the P.C. Party during the campaign. These include the following:
The Government of Ontario has promised on May 5, 1995 specifically to introduce into Ontario a new Workplace Equal Opportunity Plan. The plan expressly recognizes the systemic barriers confronting persons with disabilities. An Ontarians with Disabilities Act can and should form a core element of such a plan.
Conclusion.
If the Ontario Government does not immediately put into place a comprehensive and aggressive barrier-removal and barrier-prevention legislative initiative with an effective Ontarians with Disabilities Act as its central component, people with disabilities will continue to be a marginalized and severely disadvantaged minority in Ontario society. The modest aims which they have won in the past will be superseded by the new barriers being placed in their paths in many areas or Ontario society. The need for action to remove the old barriers, and prevent the building of new ones, is immediate. The achievement of a barrier-free society for persons with disabilities by the year 2000 is a non-partisan political issue. No one could reasonably oppose the importance of this goal, or the need for new government action to promote it. No better indication of the bipartisan nature of this issue can be given then the fact that the most comprehensive legislation in he world aimed at securing a barrier-free society for persons with disabilities is the Americans with Disabilities Act, which was passed in the U.S. by a Democratic Congress and willingly signed into law by a Republican President, George Bush. This bi-partisan support for an Ontarians with Disabilities Act will also exist in Ontario.