We have completed our foundational work. We know the power of the Human Rights Code. We understand the 3-part question for the discrimination test, and the reasonable justification test. Now we are focusing on the action part of the Duty to Accommodate.
How do we trigger the Duty to Accommodate?
We disclose our child’s disability. That is the on button.
That means by submitting documentation. This locks the school district in without any wiggle room. If that documentation isn’t possible, we want to send the disclosure to the school via email. The school needs to be aware that they are on a waitlist, or receiving professional supports for their disability, or that you suspect that they have a disability and you would like further testing, etc.
I know there are different mixed feelings about this. Some people don’t like that disclosure is necessary, but to legally protect yourself, it is essential.
Here is why disclosure is necessary.
Duty to inquire.
For example, I will use employment as an example. This is just an example for example’s sake. Let’s say you start arriving late at work every morning and your employer fires you for your lateness. If they knew that you had a disability, they would have a duty to inquire to see if your disability was related to your lateness. If you said yes, then they would need to offer you accommodations. Maybe a flexible work schedule, or working from home in the morning, etc. But, if you don’t disclose and they fire you and you come back and say it’s discrimination because your lateness is connected to your disability, they are off the hook. They didn’t know. They didn’t have the duty to inquire. By not disclosing, you aren’t locking them into certain obligations. I offer this blog from the BC Human Rights Clinic.
Do schools have a duty to inquire?
Yes! And it has been referred to as meaningful inquiry.
Let’s start with the written authority. 👇👇👇👇
Student (by Parent) v. School District, 2023 BCHRT 237
[75] The “duty to inquire” is a human rights obligation which arises where the student is facing some adverse impact in their education – ie. discipline, poor grades, lack of meaningful access – and the school is aware, or ought reasonably to be aware, that a student’s disability may be a factor in that impact: eg. Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29; Aydogmus v. York University, 2021 HRTO 176 at para. 59. The purpose of this inquiry is to identify and remove disability-related barriers to a successful education, likely through the process of accommodation.
So we have the school being aware of harm connected to a students disability, and the point of the “inquiry” is to identify AND remove barriers that are “disability-related” through the accommodation process.
Lovely.
This kicks off the accommodation process. We have our foot in the door by identifying the school disability-related harm.
Also pointed out in this case, as by now we all know:
[89] …………the respondent is not responsible to accommodate disability-related needs that it was not aware of or could not reasonably have been aware of.
Something important to note here, too, is that when we are expressing our kids’ struggles:
[96] On balance, I am not persuaded that the District’s response to the situation after April 24, 2019, was a reasonable one. The Parent had brought forward relevant facts of the Student’s diagnoses and the toll that school was taking on her. I do not accept that the onus was entirely on the Parent or Student to utter the magic word of “accommodation” before the school took steps to explore the reasons that the Student’s mental health was being so impacted by school. Nor do I accept that the simple fact that a 13-year-old child with anxiety says they are “fine” is enough to end a school’s obligations. At this point, the school had enough information to understand that something at school was adversely impacting the Student in connection with her disabilities, and it was in the best position to investigate the causes. If it felt it needed more information from the Parent or the Student, it could have and should have asked. Again, the goal is to ensure that the Student is afforded equitable access to an education.
We don’t need to specifically say: Can my child have accommodations? The school should be identifying this and the school needs to ask us for more information so that they can do their job in giving our kids an equitable access to an education. Bottom line, they need to fulfill their obligations to the student as they are responsible for providing the service.
Ok, so now let’s move into meaningful inquiry and how this case locked in the duty to inquire in an education setting.
[99] Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.
[100] In short, I agree with the District that the Parent and Student were obliged to bring forward information relating to accommodation. The Parent did that, when she communicated that the Student had anxiety and trichotillomania and that school was taking a significant toll on her physical and mental health. That information should have been enough to prompt a meaningful inquiry by the school to identify what was triggering the Student’s symptoms and what supports or accommodations may be appropriate to ensure she was able to meaningfully and equitably access her education. The failure to take that step was, in my view, not reasonable. As a result, the disability-related impacts on the Student, arising from conditions in her Language 10 class between April 24 and June 27, 2019, have not been justified and violate s. 8 of the Human Rights Code.
[104] In sum, I have found that the conditions in the Student’s grade 8 Language 10 class exacerbated the Student’s anxiety and trichotillomania, and that the District failed to take reasonable steps to investigate and address those conditions during the period between April 24, 2019, and June 27, 2019 (the last day of school). I find this is a violation of s. 8 of the Human Rights Code, and warrants a remedy, which I address below.
It is on the school to INVESTIGATE and address the conditions.
They can’t just accept that they are witnessing students struggling. They need to be actively investigating to figure out what the barriers are (not parents’ responsibilities to identify these as we aren’t in school with our kids) it is them that need to investigate, figure out the barriers and address them.
We express disability-related harm that our kids are experiencing in school and we are now engaged in the duty to accommodate.
Kids are not responsible for bringing forward their own accommodation needs.
[90] Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.
Key Takeaways
Step One: We need to disclose with documentation (ideally) to the school to protect our kids with the Human Rights Code and the Duty to Accommodate process.
Once the disclosure is communicated to the school, they are now locked in and required to provide our children with a quality, equitable access to an education. It’s all about removing barriers so our kids get an equal playing field. They get a chance, an opportunity, at success just like anyone else.
We don’t need to use the word “accommodation” in order to trigger an investigation. We need to communicate that our child is struggling or experiencing harm due to “disability-related” needs.
The school has the responsibility to investigate, figure out what the barriers are, and address them.
The responsibility of bringing forward their accommodation needs does not fall on the shoulders of the student.
We need to keep communicating and telling the school the harm we are witnessing and are aware of, and how this is connected to their disability. That’s our job. That’s how we engage the duty to inquire (Meaningful inquiry) that will start off the duty to accommodate.
Emailing our concerns is creating that document trail that we need.
Next Blog
We are now into the next part of the process, the duty to consult (meaningful consultation)