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Canadian Labour and Employment Law Journal Revue Canadienne De Droit Du Travail Et De L'emploi VOLUME 17

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Canadian Labour and Employment Law Journal Revue Canadienne De Droit Du Travail Et De L'emploi VOLUME 17 Canadian Labour and Employment Law Journal Revue canadienne de droit du travail et de l’emploi VOLUME 17 EDITOR IN CHIEF / RÉDACTEUR EN CHEF Bernard Adell Faculty of Law, Queen’s University 2013 CanLIIDocs 427 ARTICLES EDITORS / RESPONSABLES DES ARTICLES Kevin Banks Faculty of Law, Queen’s University David Doorey School of Human Resource Management, York University ASSOCIATE EDITORS / RÉDACTEURS CONSULTATIFS Jeffrey Sack of the Ontario Bar Brian Burkett of the Ontario Bar QUEBEC EDITOR / RÉDACTRICE POUR LE QUÉBEC Renée-Claude Drouin Faculté de droit, Université de Montréal BOOK REVIEW EDITOR / RÉDACTEUR DES COMPTES RENDUS Peter Neumann of the Ontario Bar MANAGING EDITOR / DIRECTEUR ADMINISTRATIF Boris Bohuslawsky of the Ontario Bar 00_Frontmatter_v17n2.indd 1 13-12-17 4:49 PM SENIOR STUDENT EDITORS / RÉDACTEURS ÉTUDIANTS Susan Croft Andrew Ebejer STUDENT EDITORS / RÉDACTEURS ASSOCIÉS Giovanna Di Sauro Anthony Gatensby Graham Parkinson Chanelle Wong STUDENT EDITORIAL ASSISTANTS / 2013 CanLIIDocs 427 ASSISTANTS À LA RÉDACTION Graeme Adams Ruby Egit Nick Fitz Gabrielle Fortier-Cofsky David Francis Connor Kense Chantel Levy Simone Ostrowski Alexandra Peng Carl Petersen-Deeprose Jenna-Dawn Shervill Ryan Trimble Ruoxi Wang Angela Wiggins Julian Yang Faculty of Law, Queen’s University 00_Frontmatter_v17n2.indd 2 13-12-17 4:49 PM EDITORIAL ADVISORY BOARD / COMITÉ CONSULTATIF DE RÉDACTION CHAIR Hon. Warren Winkler Chief Justice of Ontario Professor Roy Adams Professor Ronald McCalIum McMaster University University of Sydney Hon. Marie-France Bich Professor Alan Neal Court of Appeal of Quebec University of Warwick 2013 CanLIIDocs 427 Professor Keith Ewing Professor Jean Sexton King’s College, London Laval University Professor Matthew Finkin Mr. Kenneth Swan University of Illinois Mediator and Arbitrator Hon. Sheila Greckol Hon. Katherine Swinton Alberta Court of Queen’s Bench Ontario Superior Court of Justice Dr. Patricia Hughes Professor Paul Weiler Law Foundation of Ontario Harvard University Professor Thomas Kuttner Professor Manfred Weiss University of Windsor J.W. Goethe University, Frankfurt PRACTICE ADVISORY PANEL / COMITÉ CONSULTATIF PROFESSIONNEL David Blair Gordon Petrie Vancouver, B.C. Fredericton, New Brunswick David Corry Ronald Pink Calgary, Alberta Halifax, Nova Scotia Donald McDougall Thomas Roper Halifax, Nova Scotia Vancouver, B.C. Gaston Nadeau Suzanne Thibaudeau Montreal, Quebec Montreal, Quebec 00_Frontmatter_v17n2.indd 3 13-12-17 4:49 PM INTERNATIONAL ASSOCIATION OF LABOUR LAW JOURNALS www.labourlawjournals.com Análisis Laboral (Peru) Arbeit und Recht (Germany) Australian Journal of Labour Law (Australia) Bulletin de Droit Comparé du Travail et de la Securité Sociale (France) Bulletin of Comparative Labour Relations (Belgium) Canadian Labour & Employment Law Journal (Canada) Comparative Labor Law & Policy Journal (US) 2013 CanLIIDocs 427 Industrial Law Journal (South Africa) Industrial Law Journal (UK) International Journal of Comparative Labour Law & Industrial Relations (Italy) International Labour Review (ILO) Japan Labor Review (Japan) Labour, Society and Law (Israel) Lavoro e Diritto (Italy) Relaciones Laborales (Spain) Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht (Germany) The International Association of Labour Law Journals was established for the following purposes: 1. Advancing research and scholarship in the fields of labour and employ- ment law; 2. Encouraging the exchange of information regarding all aspects of the publishing process; 3. Promoting closer relations among editors of national and international labour and employment law journals. 00_Frontmatter_v17n2.indd 4 13-12-17 4:49 PM The Disability Accommodation Gap in Canadian Workplaces: What Does It Mean for Law, Policy, and an Aging Population? Kevin Banks, Richard P. Chaykowski & George A. Slotsve* The “accommodation gap” refers to the shortfall between those accom- modations which persons with disabilities require in order to work, and those workplace accommodations which they actually receive. This paper argues that the accommodation gap raises important issues for policy-makers in Canada, given the growing participation of older workers in the labour market and the 2013 CanLIIDocs 427 fact that the incidence of disability increases with age. Such issues include the loss of productivity, higher poverty rates, increased cost of social programs, and failure to achieve the goals of human rights legislation. Using the results of an extensive analysis of data obtained from Statistics Canada’s 2006 Participation and Activity Limitation Survey, the authors inquire into three questions: (1) Is there a workplace accommodation gap in Canada, and if there is, how big is it and whom does it affect? (2) Is it associated with age or aging, and there- fore likely to be aggravated by the aging of the Canadian population? (3) Are its causes likely to elude complaint-driven enforcement of human rights law because they are systemic? In answering these questions, the study finds that a large number of Canadians (about 35%) do not receive accommodations they need to work productively, or at all. Furthermore, the results show that the older the worker and the more severe his or her disability, the greater the accommo- dation gap. The authors suggest that this finding supports the view that employ- ers’ decisions on whether to provide accommodation are influenced by economic considerations, stereotypes about the link between age and disability, the fact that certain types of accommodation may conflict with workplace culture, and other factors. Finally, the paper contends that the enforcement mechanism cur- rently in place is probably inadequate to deal with the accommodation gap, in view of the systemic nature of many of its causes. The authors set out a number of alternative options which may be more effective in closing the accommodation gap, and propose that those options be considered as part of a comprehensive policy review. * Kevin Banks is Assistant Professor, Faculty of Law, and Director, Centre for Law in the Contemporary Workplace, at Queen’s University, Kingston. Richard Chaykowski is Professor, School of Policy Studies, Queen’s University. George Slotsve is Associate Professor, Department of Economics, Northern Illinois University. We wish to thank Michaela Keenan-Pelletier for her very able and tireless research assistance, and the Borden Ladner Gervais Fellowship Fund for supporting this research. 01_Banks.indd 295 13-12-19 9:00 AM 296 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [17 CLELJ] 1. INTRODUCTION In coming years, a growing proportion of Canadian workers who have disabilities will want or need to continue working. Canadians are aging, and are staying at work longer. In 2006, 13% were over 64, and that figure is expected to exceed 25% by 2036.1 Labour force participation rates of those over 55 have climbed steeply and stead- ily since 2000.2 The key reasons for this are durable. They include the aging of the cohort of women who entered the labour force in large numbers in the 1970s and 1980s, a growing desire among older persons to remain active, and financial need due to inadequate retire- 3 ment savings. Not surprisingly, however, the incidence of disability 2013 CanLIIDocs 427 among employed Canadians increases with age, from just over 3% of those between 20 and 24 to over 12% of those from 60 to 64.4 If many of these persons with disabilities (PWD) are to overcome activity lim- itations and work productively, employers will have to design, adapt and manage workplaces appropriately. In short, the aging workforce will need accommodation. Yet there are already widespread accommodation shortfalls in Canadian workplaces. Using data from Statistics Canada’s 2006 Participation and Activity Limitation Survey (PALS), we find that 35% of PWD say they are not receiving accommodations they need 1 Statistics Canada, Some facts about the demographic and ethnocultural com- position of the population (25 January 2008), online: <http://www.statcan.gc.ca/ pub/91-003-x/2007001/4129904-eng.htm>. 2 See Michael Wolfson, “Population Aging − Demo Doom or Apocalypse No?” (presentation delivered at the Centre for Law in the Contemporary Workplace, Shades of Grey: Law and Aging in the Contemporary Workplace Conference, 29 April 2012) at 8, online: <http://law.queensu.ca/lawResearch/clcw/events/ 2012conferenceonaging/speakerpresentations/MichaelWolfson.pdf>. 3 Ibid on the effects of the aging of the female cohort. See Jungwee Park, “Retirement, Health and Employment Among Those 55 Plus,” 23:1 Perspectives on Labour and Income, Statistics Canada Catalogue No 75-001-X (Ottawa: StatCan, 31 January 2011) at 10 on the role of financial considerations and the desire to remain active. On the inadequacy of retirement savings, see Michael C Wolfson, “Projecting the Adequacy of Canadians’ Retirement Incomes: Current Prospects and Possible Reform Options” (Montreal: Institute for Research on Public Policy, April 2011), IRRP Study No 17, online: <www.irpp.org>. 4 See below, Table 2. 01_Banks.indd 296 13-12-19 9:00 AM DISABILITY ACCOMMODATION GAP IN CANADIAN WORKPLACES 297 in order to work. We then show that widespread employee reports of such shortfalls are consistent with previous research which finds that the employment opportunities of PWD are negatively influenced by information gaps, stereotyping, economic incentives and workplace cultural resistance, and suggests that such influences are likely to interact with perceptions of aging in ways that
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