Month: February 2022

Swimming up Stream in the Education System

When people in power use silence, lying and manipulation with the goal of making you go away, they do so based on experience. They do it because they have experienced success with those strategies and it works.

Every time we do not agree to follow the path they lay out for us and we decide to swim upstream, and it does certainly feel like we are swimming against a very powerful current, we are upholding all of the advocacy work done by parents who fought the fight before us. 

My grandfather’s sister was Deaf and his brother had a son with Down syndrome. My great aunt was an advocate in the Deaf community for over 30 years. My great uncle with his wife and other parents founded a school for disabled children who were being denied an education, and named it after their son.  Parents who were getting together for support in their basement ended up founding a school. Stories that have been passed down in my family make it clear that we have come a long way. We certainly can accomplish things we never expected when driven by our children, don’t we? We validate and honor their work when we decide to not accept the discrimination but instead we decide to swim upstream. 

The tactics schools use on parents, they use it because it works for them.  Quite simply, we need to make their strategies not work.  We may feel like we are fighting our own individual fights, but we are each a raindrop filling up the bucket. 

Building relationships in the path of advocacy cannot be overstated. It’s these micro daily interactions that be the most impactful. Sometimes the most gentle actions holds the most power.

I had concerns about the daycare my son was in and I wrote them a very detailed and thoughtful email outlining all of the concerns. It was straight forward. I didn’t sugar coat the reality, but it was also no way aggressive, and was still written with care. Still….the first face to face interaction, I was nervous by their reaction. The manager said I was the third parent to express concerns in the past 2 weeks and obviously something was going on here. She said, to have one parent complain is not unusual, but to have three parents about the same issue in 2 weeks, that is alarming to us. Those first two parents have NO IDEA that because of their complaint, mine was validated and the daycare took action and changed staff and their whole program focus. I have no idea who these parents are, but THANK YOU!!

We are the enforcers of policy and human rights. Those words written on those documents of paper are meaningless unless someone stands up to enforce those policies when they are not being followed. 

Before social media, before the mass sharing of knowledge, communication and support, there were individuals unaware of anyone else taking great risks to stand up for their children and what they knew wasn’t right.  

Any advocacy you do in the system is never wasted. And if you do think it was wasted, never stop talking about it so we can all learn too!

We need to swim upstream. 

We need to be a raindrop in the bucket whether its confirmed to us that we are making a difference or not. 

Even people who identify themselves as advocates get tired. We need breaks too. Even people who don’t identify themselves as an advocate can unexpectedly be a swift force of change. Never underestimate the quiet ones sitting in the back.

Silence, unethical practices and discrimination need to stop being success strategies for administration on how to deal with staff shortages, poor inclusion frameworks and chronic underfunding. 

Human Rights – Lunch and Learn

I have just attended a free workshop hosted by the Human Rights Clinic. It was wonderful!!! I highly recommend people sign up. Below are my notes that I took during the workshop. I hope people find it helpful.

https://bchrc.net/

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It is our responsibility to prove discrimination at a hearing. The HRT does not investigate.

Decisions are final and binding but not enforceable. We can take the decision to the BC Supreme Court to enforce it.

Discrimination is negatitve treatment or impact that’s connected to a person’s protected characteristic.

Eg. Stereotyping, unfair assumptions, bullying and harassment, singling out, profiling, exclusion, disadvantage

Discrimination can be

  • Overt or subtle, intentional or unintentional (Code S.2), concerned with impact, concerned with equity and fairness) rather than sameness
  • Not all different treatment = discrimination
  • Sometimes treating people the same = discrimination

You don’t need to prove they intended to discriminate

** Treating people, the same can result in discrimination

(Put up the equality picture of people standing on boxes)

Section 3 lists the purpose of the Human Rights Code

2/3 of complaints are related to employment

The focus of the workshop is on employment

HRT protects us from retaliation for making a human rights complaint.

Discrimination can happen outside of employment hours. As long as it is connected to the workplace. For example, drinks at a bar with co-workers after hours, or a weekend conference.

Employer must resolve all discrimination complaints. They must respond with action all claims of discrimination. They are liable for the discrimination.

Individuals can also be held accountable. High degree of personal responsibility. Eg. Sexual harassment.

Complainant must prove they have the characteristic

Need only to be A FACTOR in the negative treatment

Need not be the only or most important factor. Must be connected.

Most are undefined in the Code. Must be interpreted in line with the purpose of the Code.

The complainant goes first.

They have to prove

  1. They have a protected characteristic
  2. They have experienced some kind of negative impact in a protected area
  3. There needs to be a connection between the characteristic and negative treatment of impact

Respondents Case

They need to prove:

  1. Treatment was justified
  2. There is a reasonable explanation
  3. Bona fide occupational requirement
  4. Cannot be accommodated without undue hardship

Facts will be enough to file a complaint, do not guarantee the claim would be successful

A respondent may have a non-discriminatory explanation for their conduct (meaning there ‘s no connection between their conduct and a protected characteristic)

Or they may have a justified reason for their conduct

Evidence and Proof

Standard of proof = balance of probabilities. Prove it’s more likely than not. It’s not proof “beyond a reasonable doubt”

Must look at circumstantial evidence

The facts support a reasonable inference

You can win even without a smoking gun

Circumstances that may justify drawing an inference of discrimination – timing of events, statistics, experience of others

Must convince the Tribunal that the inference of discrimination is more than likely than the respondent’s explanation

The complainant has the burden to prove their case

Even if you don’t have documents or witnesses, you can still win. It’s harder, but they can still be successful. They will assess the credibility of the witnesses. Who they believe. What is the most likely version of events.  It can be difficult, but very much possible.

Physical Disability – perceived of permanence or persistence, be involuntary, affects a person’s abilities

Mental Disability – involuntary, permanence or persistence, mental illness, learning disability, addictions, affect a person’s abilities

Many people are unrepresented without lawyers

Adverse Effects Discrimination (not direct) but the impact

In the context where everyone is being treated the same – If your policy, rule, standard, requirement or practice creates a negative impact on a person due to their disability you must be prepared to justify that policy, rule, standard, requirement, or practice as bona fide and reasonable.

Duty to Accommodate

Employer must show that it could not have done anything else reasonable or practical to avoid the negative impact on the individual

Employer must take all reasonable steps to accommodate

Goal is to ensure that an employee who is able to work can do so

Employer must give a serious consideration to how employee can be accommodated

Requires an individualized case-by-case approach

Must be approached with common sense and an open mind

Flexibility is key

Accommodations are as individual as the people seeking them. Context is important.

Examples of accommodations: Different or lighter duties, toleration of absences, adjustment of schedule, change in environment, staff transfers, unpaid leave, time off to attend treatment or counselling.

Reasonable accommodation doesn’t mean perfect accommodation

Accommodation related to NEEDS and not WANTS

A shared obligation – employee must be involved

Employee must provide necessary information, participate in meetings and discussion, cooperate and facilitate the accommodation process

If a complainant has rejected a reasonable proposal, the respondent has met its duty to accommodate and the complaint will be dismissed.

Undue Hardship

Might involve expense, inconvenient, and or disruption as long as it does not unduly interfere with its business.

The burden is on the employer to show that it has offered a reasonable accommodation, and any further accommodation would be an undue hardship.

Factors: cost, economic conditions, size of employer’s operation, interference with rights of other workers, safety/risk

(Crismer, SCC 199) – Undue hardship

Duty to Inquire

Employer may have a duty to inquire as to the existence of a disability, if the are aware of ought to be aware must inquire before making an adverse decision based on performance.

HRC has webinars posted on their website to watch. In their audio and video section.