Emerging Issues in the Law of Accommodation

1. Emerging Issues in the Law of Accommodation Milé Komlen Director, Human Rights & Equity Services McMaster University Hamilton, Ontario

2. Human Rights & Equity Services • Provides consultation and advice on human rights-related issues and complex situations • Offers guidance on the dispute resolution processes under the university’s Anti-Discrimination and Sexual Harassment Policies • Raises awareness and provides education on harassment, discrimination, accommodation, accessibility, and other human rights-related issues • Free service to all members of the university community

3. Duty to Accommodate • Service providers (e.g. universities) are required by law to accommodate individuals who have one or more characteristics that are protected by human rights legislation • The law requires institutions to provide reasonable accommodation “to the point of undue hardship” • The undue hardship standard can rarely be relied upon by most large institutions • Implies a duty of fairness so that disadvantaged groups can participate fully in society

4. Obligations of Institution • If student has a recognized disability (or other protected characteristic), obligation is to reasonably accommodate to the point of undue hardship • Accommodation does not require a “Cadillac” solution or that student’s request be precisely mirrored, but must respect dignity of individual • Institutions required to be creative in fashioning accommodation solutions • Risks to the institution if appropriate accommodation is not provided

5. Obligations of Student • Student must present accommodation letter to instructor at beginning of the course • Student must approach instructor and arrange for specific accommodation in advance • Student has an obligation to participate in their own accommodation • Articulate need in a timely fashion • Attend CSD for assessment • Cooperate with prescribed accommodation

6. Obligations of Instructor • If student presents an accommodation letter, instructor has obligation to provide accommodation as outlined • Instructor should not ask student about their specific disability, but can ask about limitations (e.g., “When can you hand in the assignment?”) • Discussions about accommodation should respect individual privacy and confidentiality (i.e. not in class with other students around) • Make inquiries if significant change in student performance occurs during the term • Instructor may consider informal, creative forms of accommodation, such as extensions or re-weighting

7. Obligations of Faculties • Ensure that accommodation has been properly provided by instructors • Mediate misunderstandings between students and instructors • Consider student complaints (i.e. pre-petition) • Deliberate on petitions for special consideration • Determine if there is a human rights matter • If no, deliberate on special consideration/compassionate grounds • If yes, matter may be appealed to internal (or external) Tribunal • Consult HRES about the tough cases

8. Myths About Accommodation MYTH: Student is trying to gain an unfair advantage FACT: Student wants same opportunity to achieve as everyone else and shouldn’t be penalized for a condition that is beyond their control MYTH: Student shouldn’t be in school if they have a disability (or other protected characteristic) FACT: Most disabilities do not affect intellectual capacity (e.g. loss of sight or hearing), but some adjustments are required to allow everyone to succeed on an even plane (i.e. “but for” disability)

9. Myths About Accommodation MYTH: Anyone can get an accommodation letter FACT: Students first need a diagnosis from a medical professional, then a functional analysis by a disability specialist at CSD MYTH: Some disabilities can be faked for a missed test, such as depression or other mental illness FACT: Accommodation is for ongoing or recurrent mental or physical limitation, and must be diagnosed by a health care professional. Temporary illnesses (e.g. short-term depression) don’t count.

10. Consequences of Decisions • Student may file complaint with HRES or petition with faculty • Student has complaint/appeal right to internal Human Rights Tribunal • Student may also file a complaint directly with the Ontario Human Rights Tribunal (or bring an appeal from an internal tribunal decision) • FREE legal support for complainants! • Hearings could take years and $$$ in legal costs

11. Academic Integrity Issues • Academic institutions have a right to direct their franchise and preserve integrity of academic system • Institutions usually given broad deference by the courts on academic matters • BUT human rights legislation quasi-constitutional, so can override institutional deference • Any set policy or rule that potentially has the effect of discriminating against certain individuals, without justification, could be overturned

12. Retroactive Accommodation • The law is beginning to recognize that individuals may require retroactive accommodation when they are not aware of a condition that affects performance • A retroactive discovery or diagnosis of an existing illness may be an indicator of poor past performance • Since purpose of accommodation is to permit disadvantaged individuals to participate fully “but for” their disability (or other characteristic), law says after-the-fact considerations may be required

13. Retroactive Accommodation • Very fact specific, case-by-case basis • Time sensitive (when did individual know?) • Obligations on instructor/faculty/institution (did we know or ought to have known?) • Strong medical documentation required • Other factors may be relevant (e.g. language or cultural barriers) • Assessment of risk to the University, as well as considerations of “inclusive community”

14. Possible Solutions • Deferred examinations • Grade re-weighting • Additional or make-up assignments • Retroactive withdrawal • Grade replacement • Others…

15. Case Scenarios FACTS: Student cheerleader performs well during mid-terms. Sustains head injury during practice in late November. Diagnosed with a concussion. Student advises Faculty, is given option to defer, but chooses to write final exams in December. Poor results on exams. Subsequent diagnosis with specialist reveals diminished brain functions. Medical documentation shows that injury likely contributed to poor performance on finals. Student requests to re-take courses in following year.

16. Case Scenarios FACTS: Foreign graduate student was aware of medical condition prior to arrival in Canada. Did not mention disability to instructors due to fears of stigma or misperception that he could not complete program. Student was not familiar with Canadian medical system and did not have a family doctor. Condition worsened while in Canada. Student sought treatment, but still had apprehensions about disclosing disability. Student failed two courses and was asked to withdraw from program. Disclosed disability during efforts at reinstatement.

17. Case Scenarios FACTS: Student performed well during mid-terms, but did poorly during final exams. Later discovered that he had mononucleosis during last half of term, confirmed by doctor’s note. Student requested that grades be re-weighted or that he be permitted to re-write exams, or re-take courses.

18. Case Scenarios FACTS: Instructor notes that student’s performance drops significantly after third mid-term. Student exhibits fatigue and lack of participation during classes, which is a noticeable difference from before. Instructor does nothing, but student continues in course. Student neglects to submit final paper before grades are submitted, and requests extension or retroactive withdrawal months later when she receives a diagnosis of a severe mental illness with detailed medical documentation.

19. Case Scenarios FACTS: Student had bulimia, which created an adverse impact on her course performance. She did not reveal condition to instructor prior to drop date, due to fears of stigma, although she was aware of it. She did well on a mid-term assignment, but high stress levels prevented her from completing remaining assignments. She sought assistance of her professor and mental health counsellor after grades were submitted in requesting late withdrawal without academic penalty.

20. Moving Forward • Consider cases carefully • Distinguish human rights considerations from special consideration/compassionate grounds • Assess strength of medical documentation • Obtain assessments/advice from CSD • Consult with HRES on tough cases • Assess importance of academic integrity issues • Be proactive and inclusive