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Law of Work Archive

Are Disabled People Writing the LSAT entitled to Accommodation?

by David Doorey January 22, 2010
written by David Doorey January 22, 2010

Imagine you have a disability of some sort, say, a learning disability.  And you want to go to law school.  Are you entitled to special accommodation on the LSAT test (which all applicants to law schools must take)?  If so, what sort of accommodation?
These are the questions at issue in a recent complaint filed at the Ontario Human Rights Tribunal called Arenson v. LSAC. This isn’t an employment case, but its interesting for its treatment of the human rights issues generally.  Arenson requested that the organization that runs the LSAT accommodate her, arguing that she would underperform without the accommodation.  She wanted the following accommodation ordered:

(i) double time on every task in the LSAT, (ii) a human reader or a computer equipped with an electronic reader, (iii) a computer for writing the LSAT essay, and (iv) a separate room in which to take the LSAT.

Jurisdiction Issue
LSAC responded that the Ontario legislation does not apply to it, since it is an American company with no office in Ontario, and the decision to deny accommodation was made in the U.S.
The Tribunal rejected that argument, finding that since LSAC offers a service in Ontario, and the accommodation sought was to take place in Ontario, the legislation applied.  In so finding, it relied on a BC Human Rights decision called Carlisle v. LSAC. In Carlisle, the applicant sought the right to smoke marijuana during the exam (uh, for medical reasons).  So if you offer a ‘service’ in Ontario, you are covered by the Code provisions prohibiting discrimination in the provision of services, even if you are in fact a foreign company without an Ontario office.  Straightforward enough.
Interim Remedy Issue
But Arenson had another problem.  By the time her complaint was heard and decided by the Tribunal, the February LSAT test would be over, and she would miss out on her chance to get accepted for next fall’s law school classes.  So she asked the Tribunal to issue a fast, “interim” remedy, ordering the accommodation so she can write the February test.  An interim remedy is an order that will apply until the Tribunal has decided the case.  These are permitted, and governed by Rule 23 of the Tribunal’s Rules of Procedure.  Rule 23 says:
Rule 23.2 states that the Tribunal may grant an interim remedy where it is satisfied that:

a)         the Application appears to have merit;
b)        the balance of harm or convenience favours granting the interim remedy requested; and,
c)        it is just and appropriate in the circumstances to do so.

Applying this test, the Tribunal refused to order the interim remedy.  It indicated that interim remedies are ‘extraordinary” and that, therefore, there is a heavy burden to meet to get one.  The Tribunal concluded that, even assuming the first two criteria had been met, it was not ‘appropriate’ to order the remedy sought.  In other words, the third criteria gives the Tribunal an ultimate discretion.
The fact that Arenson’s chance to apply to law school this year is probably lost without the interim remedy was not enough to sway the Tribunal.  It found:

…the applicant has failed to establish that it is just and appropriate in the circumstances to grant the interim remedy. Although the applicant may have to wait another year to apply for law school if an interim remedy is not granted, she has not established that the Tribunal will be unable to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found. In addition, … it is obvious from the parties’ pleadings and submissions that there is conflicting evidence with respect to the issue of whether the accommodation offered by the respondent was appropriate. As such, the applicant has not established that the Request is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances.

In other words, there is a real issue about whether the accommodation sought is required, and a hearing needs to be held to decide that.  If it turns out that accommodation is required, the Tribunal can order it, and Arenson can write next year.
Do you think that is a fair outcome in this case?

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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RSandillRicha Sandill@RSandill·
9h

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364627677785821185Retweet on Twitter 13646276777858211851Like on Twitter 13646276777858211852Twitter 1364627677785821185
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TheLawofWorkDavid J. Doorey@TheLawofWork·
9h

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
10h

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
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