Human Rights and Accommodation

by Michael Dick

Accessibility is a human rights issue and is everyone’s business. But as service providers, faculty and staff have specific obligations to persons with disabilities: these may be prescribed in law, a collective agreement, a specific university policy, or all three, but they can be generally summarized within the broader rubric of the duty to accommodate the needs and diversity of abilities and disabilities. In an employment context, for example, an employee might be permitted to telework, perform modified duties, or use special office equipment.

But the OHRC also applies to our interactions with students. For example, we regularly accommodate students with extra time on assignments, by helping arrange note-taking support, by permitting audio recording of lectures, and by modifying testing conditions. In such cases, students typically submit documentation to an accessibility specialist who determines the appropriate accommodations in consultation with the student. Only the pertinent information concerning the accommodation measures are shared with the appropriate members of the teaching staff. This process of providing individualized accommodations is in line with the OHRC’s general expectations that accommodations respect one’s individuality, dignity, and right to fully participate in higher education.

In recent years, greater focus has been placed on mental health conditions and their correlation to disability. As other modules in this series note, there is widespread criticism of medical models of disability, but medical information provided by a practitioner is often used to trigger the duty to accommodate. In this case, the circumstances may give rise to psychological or psychiatric disability, at least in human rights terms. With this in mind, the OHRC regularly issues policy guidance based on changing societal norms and, in particular, case law as established by decisions of its tribunal (the HRTO).

In 2014, the Policy on preventing discrimination based on mental health disabilities and addictions was released by the OHRC, with further guidance provided in 2018 specific to the accommodation of students with mental health disabilities in PSE. As a consequence, students with these disabilities arguably have more rights now in connection with their learning. For example, they are not required to submit specific diagnostic information to on-campus accommodation services, as it is enough to note mental health conditions without a medical diagnosis. Interim accommodation can now also be granted while documentation from healthcare providers is being obtained, and retroactive accommodation can also be granted on a case by case basis (e.g., a retroactive drop). Universities, including TMU, are currently revising their academic accommodation policies to ensure full compliance.

There are several benefits to the recent OHRC guidance and its implementation in higher education institutions. For one, mental health conditions aren’t always apparent even to the individual: many things that seem “odd” to others are actually “normal” to the person experiencing them, meaning a level of self-awareness is often required to be aware that needs are present and that it would be advantageous to seek accommodation.

This is compounded by the harsh realities of the current healthcare system in Ontario and elsewhere: as many with mental health challenges can attest, it is exceptionally difficult to access psychiatric care in an outpatient setting, and psychological services are expensive and not covered (or only minimally covered) by student health insurance programs. While there are now more affordable options for psychotherapy, such as social workers and registered psychotherapists, these professionals are not permitted to make the diagnosis that would ordinarily be required to receive accommodations. A simplified accommodation process, including the possibility of interim and retroactive accommodations, is therefore helpful.

Even with these changes, the system arguably still fails students. Or, at the very least, it adds additional burden (including emotional labour) that could be better spent elsewhere. It may always be necessary to request individualized accommodations, and it is understood that there will always be a case where this is necessary. But the purpose of training like this is to shift some of the “burden” onto the service providers, in this case faculty and staff. There are things we can do to make life more accessible for others without necessarily adding significantly to our workloads. What this comes down to is being more intentional in how we view accessibility in connection to our courses and our learning environment.