Practitioner’s Corner

By Denise Feltham

Is a Driver’s Licence the New Barrier to Employment?

People with disabilities are experiencing as much difficulty as ever in securing medium and high income level jobs that will allow them to be financially independent. They are also more likely to be underemployed or working in low-paying jobs despite having received college and university training in specialized fields. Employers can be selective, exclusionary and demanding in their hiring practices by requesting longer work week, a higher education, more extensive experience and a second language. The process of downsizing and restructuring has necessitated the merging of two or more jobs into one, requiring multi-tasking and a combination of skill sets that are often mutually exclusive (for example, good analytical and writing skills combined with reception and secretarial skills in a fast paced environment).

The path to employment for people with disabilities is filled with road blocks, detours and dead ends however some improvements have been made to remove these barriers such as the Ontario Human Rights Code, the Canadian Human Rights Act and the Equal Opportunity Plan.

Section 15(1) of the Ontario Human Rights Code states:

“Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.”

Disability is defined by the Ontario Human Rights Code as:

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“ ”)”

You are a person with a disability. You persist and conquer your barriers, and you finally get that degree or diploma. The battle is over, right? Unfortunately, this isn’t the case. You engage in an intensive job and soon become entangled in the net of inexperience because you didn’t get paid for all the volunteer work you did over the years. Then as you excitedly read down the list of requirements for those jobs that you could and would love to do. Your hopes are dashed by that ubiquitous phrase, “driver’s licence and car required.” You can’t drive – you’d be a danger to yourself and others. You won’t drive – air pollution kills hundreds of people a year. And a course in driving certainly wasn’t included in your program curriculum.

Over the years, a form of discrimination has emerged in the labour market that has been very much left unnoticed because it is a non-issue for so many people – the requirement of a driver’s licence, vehicle and, in some cases, specialized insurance. The legislation does not protect citizens from discrimination based on whether or not they have a driver’s licence or own a car. The Canadian Human Rights Act, No. 15(1), gives employers the right to discriminate against non-drivers by allowing that:

“It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement.”

Many people with a disability cannot drive. If employers cannot discriminate against individuals with a disability, and these individuals cannot drive because of their disability, then it follows that allowing employers to refuse employment on this basis is discriminatory against people with disabilities. However, the Canadian Human Rights Act also makes the widely interpretive provision in (Accommodation of needs) No. 15(2) that is ignored by employers and enforcers of the Act:

“For any practice mentioned in Paragraph (1)(a) to be considered to be based on a bona fide occupational requirement…it must be established that accommodation of the needs of an individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.”

A thorough assessment of the accommodation request must be made before rejecting the accommodation as an unjustifiable hardship, including direct and indirect costs; tax breaks and subsidies; effect on sales and revenue; the person’s skills and experience; and degree of compliance with other acts, laws and standards.

Paralleling this provision, Section 17(2) of the Ontario Human Rights Code specifies that with respect to driving as essential component of the job, an employer must accommodate the needs of a person with a disability in the performance of the essential features of a job, unless it could be demonstrated that the needs of the person cannot be accommodated short of undue hardship on the person responsible for accommodating those needs.

Furthermore (Special Programs) No. 16(1), of the Canadian Human Rights Act states:

“It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.”

A “special plan, program or arrangement” could be feasibly implemented without undue hardship to the employer to accommodate people with disabilities who do not drive. Accommodations in this case could include job sharing, car pooling, taxis, or even a chauffeur at the employee’s expense. In the human services field, where visits to clients in the community are necessary, caseworkers can go in teams in which employees who do not drive could be paired with those who have cars. Years ago, there were designated drivers on site to transport the professional to clients’ homes.

Recently, I was dismayed to hear that a person with a mobility impairment lost his chance of a job with an agency serving people with disabilities because he could not drive. Current legislation needs to be challenged under the Charter of Rights. This effort requires public education and collective action. If we do not educate employers and take necessary action now, then a driver’s licence will become the next barrier to employment for people with disabilities.

Denise has completed the BSW with Honours from Ryerson and the Career and Work Counsellor Program with Honours from George Brown College. Being a person with a disability herself, she devised a self-assessment tool called D.I.C.E. (Disability Impact on Career/Employment).

References

Ontario Human Rights Code
www.ohrc.on.ca/english/code/index.shtml

Canadian Human Rights Act
http://laws-lois.justice.gc.ca/eng/acts/h-6/

Other Websites of Interest:

Equal Opportunity Plan (Paths to Equal Opportunity)
http://www.equalopportunity.on.ca

Canadian Charter of Rights and Freedoms
http://laws-lois.justice.gc.ca/eng/Const/page-15.html