3.3: OHRC and Accommodations

Ideally, developing a course utilizing UDL principles and following accessibility guidelines will proactively meet the needs of all students, including supports outlined in accommodation requests. This should help reduce time spent in retrofitting accommodations after the fact. However, as there is no “one size fits all” approach to learning, the need for individual accommodations within a learning environment will always be present. Designing a course with accessibility in mind and utilizing principles of UDL, the ability to accommodate individual requests and to pivot a portion of your course should require less labour.

Under the Ontario Human Rights Code (OHRC), people are protected from discrimination, either direct or indirect, in “services”, based on protected grounds. This protection includes education as a social area since education is a service within the meaning of the Code. This means that students with disabilities are covered by the Code. There are also protections under the Code for those who experience reprisal or are threatened with reprisal for trying to exercise their human rights (OHRC, 2003).

“Education, in its broadest sense, is a ‘service’ within the meaning of the Code. The scope of “educational services” will include the mastery of knowledge, academic standards, evaluation and accreditation.”

 

— Ontario Human Rights Commission, 2004

Principles of Accommodation under the Code

Accommodation of students with disabilities is governed by the Charter of Rights and Freedoms, and by provincial human rights statutes, like the Ontario Human Rights Code enacted in 1962. The Ontario Human Rights Code (OHRC) makes illegal any actions that discriminate against people based on protected grounds in a protected social area.

As you read through the following list, think about if any of these grounds or social areas surprise you as protected? If so, why? Are there grounds or areas that you expected to see that do not appear here? What are these grounds or areas?

What is an Accommodation?

Accommodation is one way of preventing and removing barriers that hold back, obstruct, or impede students with disabilities from participating fully in the educational environment in a way that is accessible and appropriate to their own unique circumstances. The principle of accommodation involves three considerations: dignity, individualization, and inclusion (OHRC, n.d.).

Defining Appropriate Accommodation

There are a wide variety of accommodations provided to students with disabilities at the post-secondary level. These may include:

• Accommodations to improve the physical accessibility of facilities
• Provision of, or training on adaptive technologies
• Sign language interpretation services
• Real-time captioning
• Recording lectures
• In-class support such as, for example, notetakers
• Modifications to evaluation methodologies, such as extended test-taking time, or alternative examination formats

The accommodation process in post-secondary is primarily the responsibility of Student Accessibility Services. It is this office’s responsibility to collect and maintain relevant documentation to support the accommodation request, work with students in developing their accommodation plan, and prepare communication to be shared with instructors.

Policy on Accessible Education for Students with Disabilities

The Ontario Human Rights Commission released the policy on accessible education for students with disabilities. This policy was designed to help educators recognize and fulfil their obligations under the Code. The intention is to create a more inclusive educational experience with policy and procedures that will help prevent and remove barriers. In addition, effective implementation of this policy will address issues before human rights claims are made to the Human Rights Tribunal of Ontario (HRTO).

The following are steps education providers can take to provide students with disabilities with the greatest opportunity to participate fully in educational services:

STEP 1: Promoting inclusive design
STEP 2: Removing barriers
STEP 3: Accommodating remaining needs (OHRC, n.d.)

The Duty to Accommodate

The duty to accommodate rests on the educational institution as a whole—not just on the specific office for students with disabilities. All members of the post-secondary institution have a role to play (OHRC, 2018). For example:

• Faculty and staff have a duty to educate themselves about disability-related issues, to interact with students in a non-discriminatory manner, to engage in the accommodation process, and to provide appropriate accommodation to the point of undue hardship.
• Staff and faculty responsible for designing or developing new or revised facilities, services, policies, processes, courses, or curricula have a responsibility to ensure that these are designed inclusively, with the needs of persons with disabilities in mind.
• Clear and reasonable processes and guidelines for seeking accommodation should be in place at all post-secondary institutions, and these should be clearly communicated to all students.
• The process of accommodation, as well as the outcome, should be respectful of the dignity of the persons affected, and should take into account the importance of integration and full participation. Any planning for accessibility should recognize that persons with disabilities are important stakeholders in the process.

Duty to Inquire 8.6.1

In general, the duty to accommodate a disability exists for needs that are known or ought to be known. Education providers are not, as a rule, expected to accommodate disabilities they are unaware of. However, in some circumstances, an instructor may notice a student who has been performing well, suddenly start struggling. Or a student’s conduct in the classroom suddenly changes.

A respectful way to inquire would be:

• Asking whether there is anything a student needs in the way of support to help them participate effectively at school.
• Students should not be pressured to share more information than they are comfortable sharing.

If the student discloses that they could use support, then the instructor should direct them to the Student Accessibility Services (Offices for Students with Disabilities) which can help students get the support they need and to which they are legally entitled.

Confidentiality and Protecting Disability-Related Information

Students at the post-secondary level should not be required to reveal their private medical information to, or seek accommodation directly from, their professors, instructors, teaching assistants, administrative staff, etc. as a condition of receiving academic accommodations (OHRC, 2018).

In order to avoid labelling or stereotyping, it is essential confidentiality be maintained. The institution as a whole is responsible for ensuring that the medical information in its possession is secure, and the student’s right to privacy and confidentiality is protected. It is essential that the information requested is limited to what is specifically needed for the accommodation which is often handled by the Student Accessibility Services (or Offices for Students with Disabilities).

• In general, disclosure of a disability should only be shared at the choice of the student.

Accommodation letters or plans provided from the Student Accessibility Services to instructors will not include a diagnosis, but a set of accommodations required to enable the student to have equal opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges enjoyed by others.

Undue Hardship

Education providers have a legal duty to accommodate students with disabilities to the point of undue hardship. In many cases, it will not be difficult to accommodate a student’s disability. Accommodation may simply involve making policies, rules, and requirements more flexible. While doing this may involve some administrative inconvenience, inconvenience by itself is not a factor in assessing undue hardship.

The Code prescribes only three considerations when assessing whether an accommodation would cause undue hardship:

• Cost
• Outside sources of funding, if any
• Health and safety requirements, if any

No other considerations can be properly taken into account under Ontario law. Therefore, factors such as institutional inconvenience, student or instructor morale, third-party preferences, and collective agreements are not valid considerations in assessing whether an accommodation would cause undue hardship.

It is important to note that the “undue hardship” threshold is quite high, and the educational provider has the onus of proof.

Academic Freedom

This OHRC (2013) video, Working Together: Part 3. Understanding the Duty to Accommodate [5:31], briefly explains your rights and responsibilities under the Code and the AODA.