On the Legislative Front

Accommodations: a key component of educational and employment success for people with learning disabilities
by Eva Nichols, Legislation and Government Liaison Consultant

Under the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code, everyone in Canada has the right to be free from discrimination because of a real or perceived disability. This means that persons with disabilities have the right to equal treatment, including the right of access and the right of accommodation.

Accommodation is defined as the provision of diverse supports and services which level the playing field and eliminate the innate disadvantage resulting from having a disability for persons with disabilities. Accommodations never create an unfair advantage to the person with the disability. Unfortunately, people often suggest to the individual with the disability that by utilizing perfectly appropriate accommodations, they are somehow cheating the system. Students with learning disabilities often hear the comment, both from fellow students and from their teachers, that if only everybody could have the extra time, the use of a computer, the support of a scribe, etc., they all would do better. And therefore, in the name of equality, the student with the learning disability should not have those "advantages". These attitudes often create the greatest disadvantage by far for persons with disabilities.

Ontario law states that persons with disabilities must be accommodated to the limits of undue hardship. This is a high standard indeed, but it is one that must be maintained and enforced. Undue hardship may only be established under law if the provision of the accommodation:

represents such high costs, that they may jeopardize the continued existence of the business, organization or institution that is expected to provide the accommodation; and

creates health and safety related dangers.

Within the educational system the duty to accommodate is frequently challenged under a third, indirectly derived concept, namely that the accommodation will lower the standards of the course or program in which the person with the disability is enrolled or interfere with the integrity of the educational institution. It must be clear to all concerned, including the person with the disability, that lowered standards, modified or limited outcomes are not and cannot be the results of the provision of appropriate accommodations.

In order to determine an appropriate accommodation, the following must be taken into consideration:

the individual's specific areas of difficulty and whether these difficulties are in fact a disability under law;

the essential requirements of the job or the educational course in question;

the circumstances where the accommodation is expected to be provided and whether the accommodation is beyond the undue hardship standard.

In considering the duty to accommodate, it is essential that the most appropriate accommodation be determined and then be undertaken, short of undue hardship. The most appropriate accommodation is one that most respects the dignity of the individual with a disability, meets his or her individual needs, best promotes integration and full participation and ensures confidentiality. An accommodation is usually 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 experienced by others or if it is adopted for the purpose of promoting equal opportunity and meets the individual's specific disability related needs.

For example, placing a wheelchair ramp on a loading dock rather than at a building's main entrance is not appropriate if we wish to focus on dignity and equality of access for the wheelchair user.

Since the most appropriate accommodation must be individualized, it cannot be denied on the grounds that if everybody were to demand such an accommodation, the costs would be unmanageable. This claim is often made in educational settings, where the student with the disability is considered as part of a group such as a class, rather than as an individual. Each person's accommodation needs are unique and must be considered individually when the request is made.

Integration and full participation is one of the other key goals cited. However, integration in this context does not mean that persons with disabilities are provided with exactly the same things as their non-disabled peers, in the name of integration or inclusion. We have to remember the quote from Judge Rosalie Abella who wrote "that there is nothing so unequal as the equal treatment of unequals". Denying a person with learning disabilities the right to use a computer or extra time to carry out tasks is as unequal as telling a person who uses a wheelchair that they could manage to climb the stairs if only they tried a bit harder.

It may be essential for employers to consider modified performance or productivity targets. It may also be appropriate to reorganize job descriptions so that people with disabilities do not have to carry out non-essential tasks which impact on their area of disability. However, it is important to recognize that employers are not obliged to modify qualification standards for a particular job. Just as a lowered pass mark in an educational setting is not an accommodation, employers have no obligation to reduce the skill and knowledge levels deemed essential to obtain and maintain a given job.

• What does all this mean for the person with the disability?
• In order to obtain an accommodation, the person with the disability is expected to:
• advise the potential accommodation provider of the disability, although he or she does not have to provide proof or disclose the nature of the disability;
• make his or her accommodation needs known, preferably in writing;
• be prepared to answer questions or provide information about his/her limitations, including information from health care providers where needed;
• participate in discussions regarding the accommodation, accept that accommodation under certain circumstances is a process rather than an all or nothing proposition and co-operate with any experts brought in to help manage the accommodation process;
• meet mutually agreed upon performance standards, once the accommodation has been provided.

This, in turn, means that persons with disabilities need to understand their own disabilities, be able to explain their accommodation needs under diverse circumstances and accept that the provision of the most appropriate accommodation is a process for which they also have some responsibility.

That means that students with learning disabilities should be helped, as early as in secondary school, to participate in discussions related to their special education programming, service and accommodation provisions. A key component of their future success is the ability to become and function as an effective self-advocate. That means understanding and being able to explain their learning disabilities to others, describe their accommodation needs and be able to clarify why the specific accommodation is needed under certain circumstances and not others.

Both parents and teachers have a major role to play in facilitating this. Withholding information on the grounds that we do not want the student to feel badly about him or herself is very short sighted. The student will certainly know that he or she is different. Understanding the difference and learning how to build on his/her strengths to compensate for and cope with the difficulties arising from a learning disability is one of the greatest benefits that we can give to our sons and daughters with learning disabilities.

It is also important to realize that it is never too late to learn these skills and to start to advocate for the appropriate accommodations. The most important A words for people with disabilities are: access, advocacy and appropriate accommodation. Without these, future success is questionable; with them, future success, equal opportunities and outcomes are achievable. We must therefore ensure that everyone who has learning disabilities as well as other disabilities is supported in gaining access to the most appropriate accommodation of their disabilities.

Eva Nichols is LDAO Legislation and Government Liaison Consultant.