Chapter 9: Discrimination and Harassment in Law Practice
55 9.3 Navigating Disability in the Legal Workplace
Gemma Smyth and Aarzoo Mahajan
Introduction
Disability, as defined by the Ontario Human Rights Commission, includes a “broad range and degree of conditions, some visible and some not visible. A disability may have been present from birth, caused by accident, or developed over time. There are physical, mental and learning disabilities, mental disorders, hearing or vision disabilities, epilepsy, drug or alcohol dependencies, environmental sensitivities, and other conditions.”
However, this is different than an impairment, in that an impairment constitutes “any loss or abnormally of psychological, physiological or anatomical structure or function” where a disability, is in part, a social construct of a restriction caused by an impairment. See Roxanne Mykitiuk and C. Tess Sheldon, “Confronting Accessibility in Clinical Legal Education: Human Rights Law and the Accommodation of Law Students with Disabilities in External Placements” (2020) 32 Journal of Law and Social Policy 67-90, online: https://digitalcommons.osgoode.yorku.ca/jlsp/vol32/iss1/5.
“The Convention on the Rights of Persons with Disabilities (CRPD) adopts this understanding of disability in its Preamble, which recognizes that “disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”
Disability is not an “anomaly to normalcy” but an inherent and expected variation in the human condition. Systemic barriers exist as a result of policies and programs being created on this misinterpretation.
Disabilities vary widely and accommodation needs must be individualised to the student in the particular environment. In Ontario, there is a duty to accommodate enshrined in the Ontario Human Rights Code s. 13 that requires accommodation informed by respect for dignity, individualization, integration and full participation. However, as discussed earlier in this coursebook, the reality of how law is enacted “on the ground” is often quite different from how it is legislated.
Trends and Access to Education
The number of university undergraduate students with disabilities enrolled in Canadian universities has risen over the past 25 years. This trend is also reflected in the increased number of students entering professional education programs. However, universities have struggled with appropriately accommodating students. This includes placement sites.
Respondents in a study from 2000, “Lawyers with Disabilities: Identifying Barriers to Equality”, three barriers to education were identified: discrimination (58% of respondents), prejudice (23.2%), and access barriers (18.8%).
Discrimination was reported to include the following:
- Lack of accommodation and support (32.2%)
- Difficulty finding employment (19.7%)
- Being told accommodations were too expensive
- Disclosure of disability leading to adverse treatment (14.7%)
- Being marginalized into sole practice (10.7%)
- Instances of harassment (3.4%)
Prejudice was reported to include the following:
- An unawareness of disability issues (!5.6%)
- Access barriers included both structural barriers (80.8%) and social barriers (19.2%)
Accommodations
Students should note that the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms enumerate disability to be a prohibited ground of discrimination.
Students with a disability are often required to provide notice well in advance of placement before they may receive accommodations. This can be particularly challenging when the workplace does not provide advanced notice or hasn’t thought through what meaningful accommodation looks like in a workplace context.
For students with disabilities, entering a new workplace environment can require specific supports from both the law school and the workplace. Typically, there are different processes, funding models, practices, and degrees of understanding that can make navigating a new placement challenging.
Ideally, externship programs will directly communicate with students and the workplace in advance of the placement to ensure accommodations are set up, or are responsive when disabilities arise during the course of a placement. While there might be specific policies set up specifically for these purposes, as David Lepofsky wrote more than twenty years ago, “effective accommodation is often the product of open-mindedness, ‘adhocracy’, and ongoing trial-and-error experimentation. It is usually not the product of a simple, once-and-for-all quick fix”. (David Lepofsky, “Disabled Persons and Canadian Law Schools: The Right to the Equal Benefit of the Law School” (1990) 36(2) McGill Law Journal at 639.)
Below is an excerpt from an interview with former Canadian Bar Association president Ray Adlington and Toronto lawyer Lorin McDonald who was born with profound hearing loss in both ears. In this excerpt, Lorin talks about her experiences seeking accommodations from her law school:
“Lorin: … [W]ith the university, it was a challenge for a couple of years. I actually started law school using sign language interpreters because the university denied my request for captioning. And I figured that it was better to start law school part-time with a sign language interpreter and continue fighting from the inside as opposed to sitting back and trying to keep convincing them. And so I did that for my first year which was part-time. Kept trying to convince the powers that be that this was the appropriate accommodation for me and I’m sad to say that it took the threat of a human rights complaint to resolve it. And just before the complaint was going to be mailed out, I think the next day, I was advised that yes, that I would have captioning for law school but only in the class. So the next battle was but what about all those extracurricular activities like mooting competition, guest speakers that come to the school, all those things outside of the classroom lecture proper.
So that was another fight. I won that one. They agreed to allow that. And then the next one was over the issue of taping my lecture because sometimes a notetaker wasn’t available so I had to tape the lectures and have someone take notes after and then one of the professors said no, I forbid you to do that because that goes against the professor’s right for academic freedom to be able to say whatever they want in the classroom if you’re taping a lecture. So I had to point out that under the copyright act that there is a provision if the taping is needed as an accommodation measure that was permissible. Professor disagreed. I challenged him. Let’s go to the Supreme Court of Canada and let’s see how they decide that and backed down. But it sounds all very brave and at the time but those fights were hard. They were extremely difficult because I was a law student. I was also a mature student who was not feeling confident being around classmates who are 20 years younger than me. I have a disability and it’s very hard, if you remember your law school days, going up against a professor…. It would be akin to be an articling student going up against a partner. It’s very intimidating. But I always approached these kind of requests as for the greater good. That if this helps me it’s going to help others as well, not particularly in law school but across the university in future years and that sustained me but it was also really, really hard to do that. And remember, this is 15 years ago and so things have improved somewhat. We’re still not quite there. But it was intimidating. It was in many respects more of a hands-on approach to learning human rights law than it was being in a lecture.”
There are many other structural barriers in law practice that act to exclude lawyers with disabilities, and also many important advocacy efforts to promote and ensure inclusion. Some of these barriers (eg, the billable hour, supervisory practices, etc.) are canvassed elsewhere in this text.
