"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Wednesday, November 26, 2008

The Law on Human Rights and Employment in Nova Scotia: Part I

I really enjoyed Andy Montgomery's presentation on Human Rights and Employment law at the recent Tools For Life Conference. Mr. Montgomery is a lawyer at Taylor MacLellan in Kentville and gave an interesting and useful presentation. Which, admittedly, taught even me a thing or two.

It also made me realize that other than noting the new limitation period in bringing claims under the Human Rights Act and an interesting human rights complaint underway in the Province, we haven't really much discussed the protection that the Human Rights Act offers individuals with disabilities in Nova Scotia.

Made me think that it was about time to remedy that. But before getting into the nuts and bolts of employment discrimination, I thought we would discuss a few ancillary, but nonetheless important, points.

A few background facts to ponder:
  • As of 2001. 20% of Nova Scotians considered themselves to have a disability while only 14/5% of Canadians nationally considered themselves disabled

  • In 2004, 60% of persons with disabilities (87,310) in Nova Scotia were 15-64 years old

  • In 2004, the average income of Nova Scotians (aged 15-64) with disabilities was only $18,160.
Were you aware that in Nova Scotia, employed people with disabilities reported that
  • 25% were refused employment

  • 22% were dismissed from their employment and

  • 17% were refused promotion
Moving on to the Human Rights Act itself, one point that Mr. Montgomery made which I thought was a particularly good one is that not all discrimination is protected under the Act.

The Act only protects against discrimination on the basis of
  • age;
  • race;
  • colour;
  • religion;
  • creed;
  • sex
  • sexual orientation;
  • physical disability or mental disability;
  • an irrational fear of contracting an illness or disease;
  • ethnic, national or aboriginal origin;
  • family status;
  • marital status;
  • source of income;
  • political belief, affiliation or activity;
  • that individuals association with another individual or class of individuals having characteristics referred to above.
Thus, it is perfectly acceptable under the Human Rights Act to discriminate against an individual because they are a stamp collector or a fire fighter, for example. It is important to remember that in order have a valid complaint under the Act you must have been discriminated against on the basis of one of the characteristics set out above.

And again, in terms of bringing yourself within the protection of the Act, the term "physical disability or mental disability" is defined in sec. 3 of the Act as
an actual or perceived
(i) loss or abnormality of psychological, physiological or anatomical structure or function,
(ii) restriction or lack of ability to perform an activity,
(iii) physical disability, infirmity, malformation or disfigurement, including, but not limited to, epilepsy and any degree of paralysis, amputation, lack of physical co-ordination, deafness, hardness of hearing or hearing impediment, blindness or visual impediment, speech impairment or impediment or reliance on a hearing-ear dog, a guide dog, a wheelchair or a remedial appliance or device,
(iv) learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(v) condition of being mentally handicapped or impaired,
(vi) mental disorder, or
(vii) previous dependency on drugs or alcohol
In the next post, we will look at an employer's "duty to accommodate" an employee or potential employee who fits within the above definition of having a "physical or mental disability" as set out in the Act.

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