DOC; PDF; RTF
Official Abstract: "The focus of this article is mental health and workplace disability discrimination in the UK. The article will look at a number of ways that disability discrimination in the UK could be developed to the advantage of people with mental health problems, through an examination of the legislation and through case analysis.The issues that are raised by disability discrimination on the ground of mental health are pertinent to all legal systems that have enacted laws to try and protect people suffering from disability discrimination.
Author discusses Central Okanagan School District v Renaud (1992) and encouraged cooperation between unions and employers to accommodate employee disabilities; however, subsequent tribunals have interpreted this as holding unions co-liable; author calls on SCC to clarify Renaud.
Examines the rights of persons with mental health issues when participating in the workplace, and argues that the principle of inclusion can facilitate a better understanding of discrimination complaints in order to address them appropriately.
Discusses the inter-connectedness of the concepts of duty to accommodate, Bona Fide Occupational Requirement and undue hardship. She argues that the duty to accommodate is part of the test for BFOR, within the process of justification required which is linked to the concept of reasonable necessity in step three of the Meiorin test. Discusses that the implication of the duty to accommodate, as established in the Meiorin test, requires considering alternative standards to the employers standard being questioned, which challenges norms and has the potential to affect substantive change.
Advocates for a systemic approach to anti-discrimination law and reviews the factors considered when anticipating the need for individualized accommodation; reiterates that prima facie case of discrimination should be distinct from assessments of a bona fide occupational requirement.
A brief discussion of pre-employment drug testing. Discusses the law on when a drug dependency is required to be accommodated, the justification for drug testing, and the workplace health and safety plans to support testing. It discusses when pre-employment, pre-access, random drug testing and zero tolerance policies are discriminatory. It discusses the implications of medical cannabis and recreational use. Discusses a decision where the lack of cannabis testing that could determine impairment was found to be undue hardship.
The article discusses the conceptual challange that addiction and mental health pose in being not immutable, pose for establishing prima facia discrimination and how courts/adjudicators have dealt with it. The article addresses the test to determine indirect discrimination and the need to include indirect discrimination to achieve substantive equality.
Entire volume available on CanLII; Author reviews Honda Canada v Keays with reference to supplemental case-law on costs in wrongful dismissals; vulnerability of non-unionized employees; employment law and discussion of punitive damages.
Article filters through human rights disclosure rulings in Canada; concern with levels of confidentiality awarded to persons with disabilities when providing disclosure of medical information.
Discussion of alcohol dependence and obesity as disabilities; forms of accommodation afforded to individuals with these conditions; comparative law of Canada, UK and Australia; affect of alcohol addiction and obesity on workplace organization; random workplace testing for alcohol.