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Introduction
This Fact Sheet highlights the human rights principles that apply to the education of students with disabilities during strikes, walkouts, work stoppages or other job actions involving educational assistants. The information in this backgrounder is intended to set the stage for government, unions, school boards and others to act proactively to ensure equal access to education for students with disabilities during strikes or other work stoppages.
This Fact Sheet is not limited to public school boards. Rather, it outlines the relevant considerations for any situation in which educational services to persons with disabilities may be affected by job actions involving educational assistants, including French language school boards, separate school boards, colleges or universities.
Issue
At various times in the past few years, a serious issue has come to the attention of the Ontario Human Rights Commission (“Commission”) through media reports and human rights complaints. It appears that some students with disabilities have been asked or required to stay home or otherwise denied access to education and accommodation during strikes involving educational assistants employed in various bargaining units. The Commission is very concerned that students with disabilities, across the province, may be vulnerable to discrimination that is contrary to the Human Rights Code, R.S.O. c. H. 19 (“Code”), during strikes and other work stoppages.
Right to equal treatment in education
Students with disabilities have a Code-protected right to equal treatment in education. Efforts must be made to ensure the inclusion and full participation of students with disabilities in educational life, even during strikes and other work stoppages.
Barriers must be prevented or removed so that students with disabilities are provided with equal opportunities to access and benefit from their environment and face the same duties and requirements as everyone else, with dignity and without impediment.
Shared responsibility
Responsibility for ensuring equal treatment in educational services for students with disabilities rests with government, unions and school boards, among others. Similarly, there is shared responsibility to ensure that strikes and work stoppages do not result in a denial of equal treatment to students with disabilities. The Commission's 2004 Guidelines on Accessible Education (“Guidelines”) provide that all persons involved in the delivery of education services must work to remove barriers that impede access for students with disabilities.
Plan to meet the needs of students with disabilities during strikes
In order to ensure that student with disabilities have equal access to education during periods of strikes and work stoppages, it is essential that related plans, policies and procedures are designed with students with disabilities in mind. Care should be taken not to create barriers to access for students with disabilities. This type of inclusive design approach emphasizes equal participation and recognizes that all students have varying abilities and needs. Where barriers already exist, the duty to accommodate requires them to be removed, or changed.
At page 12 of the Guidelines, the Commission recommends contingency planning as a best practice in order to ensure compliance with the Code:
Workplace tensions have culminated to the point where a labour strike by school staff appears imminent. Thinking ahead, the school board in question works together with school principals to draft a contingency plan for students that would permit them to continue attending school should there be a work stoppage. The plan includes specific provisions addressing the needs of students with disabilities, and includes a back-up plan in the event that educational assistants, special needs assistants and other special education staff are part of a walkout.
Finally, it is to be expected that even if there is a contingency plan in place in advance, elements of this plan will need to be modified when a strike or other work stoppage seems imminent, so as to ensure that the accommodation needs of individual students can be met. As with any other plan, documenting progress relating to the above in writing helps with monitoring, accountability and future planning.
Lack of appropriate contingency planning
The Commission is concerned that there may be a lack of appropriate contingency planning by government, school boards and unions, in so far as ensuring that students with disabilities are not differentially impacted during strikes and work stoppages.
In the past, the Commission has heard that some students with disabilities have been asked or required to stay home during the duration of a strike by educational assistants. Such a requirement differentiates, and disadvantages, students with disabilities compared to students without disabilities. In order to be a bona fide requirement, such a requirement would need to have been adopted in good faith, for a purpose rationally connected to the goal and must be reasonably necessary, in that it would be impossible to accommodate without undue hardship (See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. [“Meiorin”] at p. 17 of the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (“Policy”). The principles of accommodation and undue hardship are described further below.
While it is necessary that provisions be made for the continued attendance at school by students with disabilities during strikes, this alone is not sufficient. Students with disabilities should continue to receive appropriate accommodation and education during strikes or other work stoppages.
Accommodation
Accommodation measures must meet the principles of individualized accommodation, respect for dignity and integration. The duty to accommodate requires that the most appropriate accommodation be determined and then undertaken, short of undue hardship. An accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges enjoyed by others, or if it is proposed or adopted for the purpose of achieving equal opportunity, and meets the student’s disability-related needs (Guidelines at p. 25).
The most appropriate accommodation known at a given point in time should be implemented or maintained. Short of undue hardship, the highest point in the continuum of accommodation must be achieved. However, if there is a choice between two accommodations which are equally responsive to the student’s needs in a dignified manner, then those responsible for accommodation may select the one that is less expensive or that is less disruptive to the organization. Before opting for the less expensive or disruptive option, however, an accommodation provider must first demonstrate, considering the student’s specific needs, that two accommodations are in fact equally responsive and equally dignified (Guidelines at p. 28).
Process of accommodation
The process by which an accommodation solution is reached is as important as the substance of the accommodation and should include:
- Meaningful dialogue among all parties that share the responsibility to provide accommodation, with expert assistance as required.
- Contingency planning, in consultation with affected families.
- Individual assessment of the needs of students.
- Examination and evaluation of less discriminatory alternatives.
Undue hardship
Collective agreements cannot be a bar to providing accommodation, nor can they justify discrimination that is prohibited by the Code, subject to the undue hardship standard (see Policy at p. 28). The undue hardship standard is a high standard in which only three factors can be considered: cost, health & safety and outside sources of funding.
In the human rights context, interference with a collective agreement is NOT considered to be undue hardship. Page 34 of the Guidelines provides the following example:
A union opposes the hiring of a specialized educational professional to assist in the accommodation of a student with a learning disability because the professional is not part of the bargaining unit. Unless the union can show that the hiring will cause undue hardship on the basis of one of the three elements set out above, disruption to the collective agreement will not, in and of itself, be enough to establish undue hardship.
An education provider would be required to prove undue hardship using evidence that is objective, real, direct, and, in the case of cost, quantifiable. The education provider must provide facts, figures, and scientific data or opinion to support a claim that the proposed accommodation in fact causes undue hardship. A mere statement, without supporting evidence, that the cost or risk is “too high” based on impressionistic views or stereotypes will not be sufficient. See the Guidelines at p. 35 for more detailed explanations of the type of evidence required to prove undue hardship in the educational setting.
Roles and responsibilities of education providers
Government: The government is required to ensure that school boards have access to sufficient funding to ensure equal access to education; take an active role as a partner in the accommodation process; facilitate accommodation efforts and support accommodation measures irrespective of collective agreements unless to do so would create undue hardship; take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated and canvass various forms of possible accommodation and alternative solutions.
Unions: Take an active role as a partner in the accommodation process; facilitate accommodation efforts and support accommodation measures irrespective of collective agreements unless to do so would create undue hardship.
School boards: Take steps to include students with disabilities in class and extra-curricular activities; take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated and canvass various forms of possible accommodation and alternative solutions, subject to the undue hardship standard.
Proactive contingency planning by education providers is expected
It is expected that those who are responsible for providing education will work cooperatively to put in place contingency plans that will allow for students with disabilities to continue to attend school and receive appropriate accommodation during strikes and work stoppages involving educational assistants.
Should education providers require the input or cooperation of other organizations or individuals to assist them in preparing such a contingency plan it is expected that they will arrange for such involvement in a proactive manner.
Action by Commission
While the Commission is willing and available to act as a resource to education providers working together to achieve compliance with the Code through contingency planning, it is not the Commission’s role to devise or suggest specific details of contingency plans.
The Commission is monitoring this issue in the media and human rights complaints. The Commission will continue to process any individual complaints about denial of accommodation during strikes and job actions until such time as the transitional provisions in the Act to amend the Human Rights Code take effect. In doing so, the Commission will ensure that any complaints filed name all the relevant respondents (government, school boards, unions and the senior decision-makers of these organizations).
Thereafter, the Commission may consider options such as initiating a public inquiry, intervening before the Tribunal on applications relating to this issue, or making its own application to the Tribunal, should it appear that students with disabilities have been denied access to education or accommodation during strikes or other work stoppages.
Relevant Commission documents
For further reference relating to the above-mentioned principles, please review the following documents, each of which are available on our website, www.ohrc.on.ca: