The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

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

by David Doorey September 2, 2011
written by David Doorey September 2, 2011

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?

0 comment
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
We're Hiring!
next post
I'm off to Cambridge for the Society of Legal Scholars Conference

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 337 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦Follow

Law Prof. Talking #labor & #employment #law #Gig to the masses. Alpaca ❤️ @YorkUniversity @OsgoodeNews @LSELaw @LWPHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

David J. Doorey🇨🇦
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
15h

A Nationwide Bargaining Unit to Fight Starbucks Is a Moon Shot Worth Trying

My latest on ⁦@jacobin⁩. https://jacobin.com/2022/08/starbucks-service-unions-nlrb-law-centralized-bargaining/

Reply on Twitter 1556339370461786112Retweet on Twitter 15563393704617861122Like on Twitter 155633937046178611211Twitter 1556339370461786112
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
18h

Luck is part of it for sure. Right time right place. True of a lot of jobs not just academia.

But in my experience sitting on lots of academic hiring committees, people selected have superior CVs. 60 applicants, one position. Not all luck. It’s a very competitive job market.

David Webster@dwebsterhist

I've been hired for 2 tenure track jobs and been on multiple committees, sent in more than 100 job applications, and done multiple interviews. Here is my thread 🛢
of job market advice for early career academics based on decades of experience:

1. Get lucky.

Reply on Twitter 1556285407817506817Retweet on Twitter 1556285407817506817Like on Twitter 15562854078175068171Twitter 1556285407817506817
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
6 Aug

Sunflowers!

Reply on Twitter 1556032894640037890Retweet on Twitter 1556032894640037890Like on Twitter 15560328946400378905Twitter 1556032894640037890
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.