Is the flu a disability? What a judge would say.

People have been discussing the definition of “disability” on the Linked In group “Accessibility for Ontarians with Disabilities  (AODA) Act forum.

As an adult educator I feel compelled to do some research and report on the legal definition of  “disability.” I’ll be reporting on the topic very soon . . . stay tuned!

Meanwhile, take the poll below and have your opinions included in the research!

Remember the mantra: Learn don’t litigate.

Andrew Lawson

www.learndl.ca

Elimination of the word, “disabled”

Ah, yes–words! I would like to see the word “disabled” eliminated from our lexicon. Here’s why: I have for years collected fabulous art painted by foot and mouth painters and have had the pleasure of meeting several of these talented artists from time to time. These artists paint with their mouths or their feet because they do not have arms and/or hands or do not have the practical use of these limbs. In contrast, I (and many others) have two fully functioning arms and hands. Yet, I cannot paint or draw anything that anyone else would really want to hang on their wall. Who should correctly be labelled a disabled person?
The Ontario legislature ought to pass a new law entitled, “Accessibility for all Ontarians” and lead the charge to dropping “disabled” from our consciousness.

AODA is an opportunity

Your obligations under the  AODA and the regulations are extensive–I hope this perspective helps you see your obligations in a positive light!

Going back two posts to “How to comply with two laws at the same time” I asked a skill testing question to which nobody responded! Nevertheless, I will answer the question here because I know you are busy and don’t have the time to respond to my skill testing questions.

Is the Accessibility for Ontarians with Disabilities Act (AODA):

• Opportunity focused?
• Penalty focused?

Is the Ontario Human Rights Code (HRC):

• Opportunity focused?
• Penalty focused?

Both laws provide:

• opportunities for persons with disabilities (and others)
• opportunities for employers, landlords and others to avoid penalties
• penalties for non-compliance

The AODA (and regulations) is opportunity focused because this law:

• tells you exactly what is expected of you
• provides opportunities for the involvement of various groups in the development of specific standards
• reverses historical trends of discrimination against persons with disabilities
• gives you a positive opportunity to create a welcoming environment for persons with disabilities
• requires you to accept feedback directly from the public thus creating the opportunity for change
• requires that you regularly report to the government (and the general public) that you have created specific programs, policies and procedures
• allows for government inspection to ensure compliance
• is specific about assistive devices, service animals, support persons and communication style.
• Accomplish their goals via proactive requirements and reporting procedures
• Are proactive

The HRC is penalty focused because this law:

• Tells you what not to do (infringe a person’s rights)
• Sets up a list of infractions
• Allows an individual to file a complaint against you with a quasi-judicial tribunal (a formal, court-like process)
• Does not require a feedback system for public complaints thus denying an opportunity for change
• Does not tell you HOW to avoid discrimination; only that you must
• Does not direct you to create specific programs, policies and procedures
• Does not provide for inspectors to check for compliance
• Is vague and open to wide interpretation
• Accomplishes its goals with the use of penalties
• Is reactive

Learn don’t litigate!

Andrew Lawson
www.learndl.ca

AODA QUIZ

Image: http://zincroof.wordpress.com/

I am going to tell you a story here that will test your knowledge of your current legal responsibilities under the Accessibility for Ontarians with Disabilities Act (AODA) and the Ontario Human Rights Code (HRC). For those readers who past the test, congratulations—you are providing all your customers with the respect they deserve and have sufficient knowledge to insulate your organization from legal liability. For those of you who don’t pass, well, we’ll give you another chance and point you in the direction of some helpful resources to help you get on track!

I live and work in a really great part of town with lots of great shops, restaurants and parks. Right across from the park at the end of my street is a coffee shop that I frequent. Recently I noticed that almost every time I went in for my caffeine fix there was a guy sitting in his electric wheelchair outside the shop; I would occasionally say “hi” to him and sometimes we exchanged small talk about the weather or about the traffic. The guy was usually enjoying a coffee or a cookie or some other delight that I assumed he bought in the shop. Even with my keen eye for such barriers, I never really noticed that there was a step leading up into this shop which made it virtually impossible for a wheelchair user to navigate on their own.

One day recently I was in the shop paying for my coffee when the barista excused herself and ran to the door. From where I was standing I could see she was talking to my friend in the wheelchair; she was taking his order! I asked her how she knew he was there and she told me that he knocks on the door and the staff respond; he comes several times a day, she said.

I was so amazed to see that the people running this small business are so in tune with the customers needs and were willing to “go the extra mile” to accommodate a customer in this way. Then I started thinking—they are being very nice but are they actually complying with the current law?

Ok, that’s the story. This is the test:

1. Is this business complying with both the AODA and the HRC?
2. Are the staff just being nice or is their behaviour a result of their employer having met certain legal responsibilities?
3. What responsibilities do you think they are complying with?
4. Which ones are they failing to comply with?
5. If you ran this coffee shop what would you do to ensure you are complying with the law with respect to access for people with disabilities?

For a discussion with the answers, visit my website: www.learndl.ca

Learn don’t litigate.

Andrew Lawson

www.learndl.ca

NOT Workplace Harassment

This disturbing message was delivered to me, just last week, by a manager who had just completed my seminar on workplace harassment prevention:

“After learning all this, Andrew, I am afraid to manage my employees anymore. It seems like any discipline I impose or any constructive criticism I offer can be construed as harassment and will be used against me by an employee. This new law really ties my hands as a manager of people.”

Have you heard yourself expressing exactly the same concerns? Are your managers and supervisors afraid to manage for fear of reprisal by an employee? Any regulatory scheme—like the changes under Bill 168—often has the unfortunate side effect of causing the people affected by it to feel disempowered.

Let’s take look at what is NOT workplace harassment.

Harassment is defined as being a course of vexatious comment or conduct that, among other things, you ought to know is unwelcome. Vexatious means, to be annoying or distressing.

Workplace Violence and Harassment: Understanding the Law
explains that the normal duties of a supervisor do not constitute harassment, even when the actions result in unpleasant consequences for the employee. It is not harassment when a supervisor assigns employees to duties, evaluates performance, enforces workplace policies or imposes discipline as long as he/she does so respectfully and fairly.
You are entitled to have disagreements with your employees as well as having opposing points of view; this does not constitute harassment.

The common law concept of employer prerogative, or right to manage, has been upheld in human rights tribunal decisions. In one such case the tribunal clarified the employer is legally entitled to manage the workforce and to utilize processes, procedures and tools to accomplish its objectives. In this particular case, the employee complained that his supervisor was using a “work log” to discriminate against him because of his disability and objected to its use. The Tribunal agreed that the employee had every right to disagree with management procedures and to discuss those disagreements with the employer. However, “at the end of the day an employee needs to work in accordance with rules and practices as established by his employer.”

Managers attending my workplace harassment prevention workshops often express concern about the level of control they are legally permitted over the activities of their workers. I am frequently asked by workshop participants about the extent to which a manager can control socialization in the workplace, especially where that socialization means that employees are not doing their work.

The case cited above addresses this issue in terms of management rights. The employee in this case also complained that he was being harassed because his supervisor told him he spent too much time talking with his coworkers instead of doing his work. The Tribunal made it clear that where management has a perception that a worker is not completing work as assigned, the employer has the right to raise the issue with the employee.

This case contains an interesting detail of particular interest to managers who feel harassed by anti-harassment policies. The Tribunal heard evidence that the supervisor in this case was coached because she needed to improve her approach when talking with employees about their performance. Her lack of interpersonal skills however, did not constitute harassment. So, you’re allowed to be less than perfect without being guilty of harassing your employees.

The message—
Just because an employee accuses you of harassment doesn’t mean you are guilty. Employees have the right to raise concerns and to have them addressed via due process. Try to view the complaint process as a perfect venue for the exchange of ideas toward creating a more respectful workplace.

Human Rights on Vacation

I am on a holiday in Montreal and delighted to see the city blanketed with banners announcing “International Day Against Homophobia.” A visit to the website below reveals an amazing arrary of events being held in high schools and city streets from St. John’s to Vancouver, places in between and all around the world!
The information on the website speaks for itself. Enough said.
Happy Anti-Homophobia Day.

http://www.homophobiaday.org/default.aspx?scheme=3282

Why All the Fuss about Workplace Bullying?

Why All the Fuss about Workplace Bullying?

By Andrew Lawson, Human Rights Advisor

Learn Don’t Litigate

In 1988 a man applied for Worker’s Compensation due to the stress of being teased, at work, about his appearance. His claim was denied. Almost 20 years later another man made a similar claim, a claim that was allowed; Worker’s comp paid up. Change was on the horizon.

In 1999 a man walked into his former place of employment in Ottawa and shot to death 4 coworkers, seriously injuring a fifth person.  He then killed himself. The killer had been teased by his coworkers because he spoke with a stutter.

 

A young woman was forced to quit her job as a senior claims adjudicator in 2000. A relative of her employer with whom she worked constantly harassed her, wrongly accused her of sabotaging company equipment and aggressively confronted her on several occasions. The woman successfully sued her former employer for constructive dismissal and was awarded damages for lost wages and for mental distress.

 

In 2009 the Ontario government passed new legislation requiring employers to develop policies and train employees on the prevention of harassment and violence in the workplace. The deadline in June 15, 2010.

 

Bullying is finally against the law in Canada and that is what all the fuss is about. The new law finally requires employers to create a mechanism for employees to report bullying behaviour. Employees are also entitled under the new law to know how the employer will investigate allegations of workplace bullying. Once you have these changes in place you will need to provide training to all your employees so they are aware of their rights.

Learn— Don’t Litigate  Engaging Human Rights Training Andrew Lawson, Human Rights Advisor   andrew@learndl.ca                       416-534-3499                       www.learndl.ca

How Would You Respond?

You are the manager of a retail store and 80% of your employees are female. A female employee, Helena, comes to your office with this complaint: “that weirdo uses the women’s washroom and we want it stopped.”

After asking Helena some initial questions you discover her complaint involves another employee, Trina. Helena believes that Trina is a transgendered woman. Helena says that she and some of the other female employees are uncomfortable with Trina’s decision to use the female washroom. She insists that you tell Trina to stop using the female washroom immediately.

HOW WOULD YOU RESPOND?

Some discussion questions . . .

• Is this situation covered by the Human Rights Code?

• Are employers required to develop policies to cover similar situations?

• Does your organization have a policy to cover this situation?

• Do you believe Helena has a valid complaint?

• Does Helena have the right to be accommodated? Does Trina?

EngagingHuman Rights TrainingAndrew Lawson, Human Rights Advisor   Learn—Don’t Litigate www.learndl.ca  416-534-3499     andrew@learndl.ca

Communication and civility

I communicate with a neighbour regularly and today I met him outside while he was shovelling snow. I say communicate because we don’t actually dialogue. We talk to each other back and forth, he in his language and I in mine. I don’t understand his verbal communication for the most part but we clearly communicate with each other very well. He always smiles and looks right at me and makes eye contact. He uses body language to tell me he’s feeling okay, but not great. The word “okay” combined with certain facial expressions and hand gestures seems to go a long way. I look forward to seeing him and I enjoy the few moments we connect with each other several times a week. He seems to enjoy meeting me as well.

I am struck by how effectively the two of us communicate ideas and emotions even though we really don’t speak a word of each other’s language.

The Vegetarian in the Park

I have written before about the park nearby to my home and the epiphanies I have had there. This one is about vegetarian food.
I recently stopped and bought a hot bowl of soup from a vendor at the organic farmer’s market that happens every Tuesday in my beloved park. WOW! Goooood stuff!
Only after I ate it, and one of her wonderfully huge cookies, did I realise the lady selling the soup is a Vegetarian Chef. I am eating vegetarian food! But, I’m not a vegetarian. Is that allowed? Apparently it is. And a good thing too because this stuff is great.
The market will end soon and I will miss the soup (and those amazing cookies) but there is hope.
The lady selling all this good stuff can be contacted at http://www.bonniesvegetariankitchen.com. Check her (and her fabulous food) out!