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Guest Blog: Ravi Malhotra on Exclusion of Disabled Workers From Employment Standards Protections

Professor Ravi Malhotra of the University of Ottawa Law School (and co-author with me and others on the Labour Law Casebook Group) wrote an interesting op-ed in the Winnipeg Free Press last week.  It concerns the exclusion of disabled workers from protections afforded other workers in employment standards statutes in Manitoba, Saskatchewan, and Alberta.  These provinces permit employers to pay disabled workers less than the minimum wage, and perhaps no wage at all.

The Saskatchewan regulations include a narrow exclusion for disabled workers “who work for a non-profit organization or institution in programs that are educational, therapeutic or rehabilitative.” (s. 13 of the Regs).  Alberta (s. 67 of the Code) and Manitoba (s. 85 of the Code) both grant the government power to issue permits to employers allowing them to pay disabled workers less than the minimum wage.

The other provinces do not allow disabled workers to be paid less than other workers.  Read Ravi’s opinion.

Why do you think these Western governments allow disabled workers to be paid less?

Do you agree with the exclusion?

And here’s a good question for law students (and my industrial relations students): Do you think that a law allowing disabled workers to be paid less than non-disabled workers violates Section 15 of the Charter?  If so, would it be “saved” by Section 1?

Here’s Ravi’s Commentary:

As someone who writes and teaches about disability rights law and as a person with a physical disability since birth, I was extremely surprised when I received an email from a student asking about laws that allow people with disabilities to be paid below the minimum wage. Surely this could not be the case in Canada in 2011.

Surely, I thought, the student had simply made an error.

To my horror, she was correct. Provisions in employment standards legislation in Manitoba, Alberta and Saskatchewan to this day allow people with disabilities, any disabilities, to be paid below the minimum wage provided a permit is issued by the minister.

An access to information request I launched found that in Manitoba, no fewer than 15 such permits have been issued since 2006. Undoubtedly, some will suggest that the purpose of such permits is to allow people with intellectual disabilities to acquire skills. The employer is thereby given an economic incentive to hire a person with a disability.

Such reasoning is deeply troubling, especially where the statutory language in all three provinces does not restrict the permit to any particular class of disabilities.

In Manitoba, section 85 of the Employment Standards Code expressly authorizes such permits for people with both physical and mental disabilities. The mere existence of such provisions on the books profoundly devalues the very real contributions made by all people with disabilities.

For too long, disability has been equated in the popular imagination with an inability to work and a life of begging.

Many people with disabilities in the past were confined to institutions, asylums and workhouses. More recently, when rehabilitation experts encouraged people with disabilities to work, it was in sheltered workshops where they worked for sub-minimum wages.

Many employers, educators and even family members perpetuate the damaging stereotypes, with real consequences.

Statistics Canada data indicate people with disabilities are far more likely to be outside the labour market than the average Canadian. This translates into significantly higher poverty rates.

Disability rights advocates have repeatedly stressed that we must move toward acceptance of a social model of disability in explaining and challenging the poor labour market participation rates of people with disabilities.

In the social model, we place primary emphasis on how structural barriers make it difficult for people with disabilities to gain — and keep — employment. These can range from physical barriers in the workplace that make it impossible for wheelchair users to use the washrooms to a lack of assistive technology that would permit a blind person to effectively use a computer.

It also includes patronizing and discriminatory attitudes by closed-minded individuals who fail to see the potential and creativity of people with disabilities. And it includes appropriate supports to allow people with disabilities to achieve success in employment and in the post-secondary educational system, which is a vital prerequisite to success in the labour market.

Slowly, attitudes have been changing.

Although people with disabilities were largely kept out of the public sphere in the past with only the rarest of exceptions (Eugene Kingsley, a double amputee, ran for Parliament three times between 1908 and 1926), more and more people with disabilities are becoming active in the political life of the country.

A number of people with disabilities have been elected to Parliament and provincial legislatures in Alberta and British Columbia in recent years, including federal cabinet minister Steven Fletcher, Alberta MLA Kent Hehr and British Columbia’s minister of Labour, Citizens’ Services and Open Government, Stephanie Cadieux. All three use wheelchairs and all three serve in important positions.

The recent ratification by Canada of the United Nations Convention on the Rights of Persons with Disabilities was a momentous occasion which disability rights advocates rightly celebrated.

The enactment of the Accessibility for Ontarians with Disabilities Act was another proud moment for disability rights advocates.

However, keeping provisions that are blatantly discriminatory is an unnecessary provocation. The elected officials in Manitoba, Alberta and Saskatchewan ought to repeal the provisions in their respective provinces, which authorize permits allowing payment below the minimum wage for people with disabilities.

Thanks Ravi.  Very interesting piece and topic.  Comments?

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