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Protecting Human Rights of Persons with Mental Disabilities

December 3, 2006 -  It is likely we all know someone who has struggled with depression, anxiety disorders, schizophrenia, or behavioral disorders and addictions. Yet, the silence surrounding the treatment of a mental illness means that the negative stigma associated with it remains.

People with mental disabilities face a number of challenges including poverty, sub-standard housing and access to adequate mental health services. And, discrimination may be compounded for Aboriginal people or members of racialized groups who have a mental disability.

The Canadian Mental Health Association estimates that one in six people will experience mental illness in their lifetime. In its submission to the Parliamentary Committee on Equality Rights, the Association stated, “Mental illness is one of the least understood and least accepted of all illnesses. It creates fear and stereotypical responses in people…For a great many people, such illnesses are shameful and embarrassing and as a result they are very reticent to stand up for their rights or to protest when injustice has been done to them.”

The Supreme Court of Canada has recognized the historical disadvantage, negative stereotyping and social prejudice experienced by persons with mental disabilities. In the Saskatchewan case of Gibbs v. Battlefords and Dist. Cooperatives Ltd., the Court held it was discriminatory to differentiate between physical and mental disability in an employee disability insurance policy. The Court acknowledged that the treatment to which persons with mental disabilities are subjected sets them apart from disabled persons generally.

The Saskatchewan Human Rights Code protects people with disabilities, both physical and mental, from discrimination in areas of public life including employment, education, housing, and public services. In employment, workers with a mental disability can experience barriers to finding a job, while those who are employed are particularly vulnerable in the workplace, sometimes finding that the stress of their job exacerbates their condition.

The Commission recently settled a complaint from an employee who suffered chronic depression for several years before taking an approved medical leave of absence from her position to get well again. Alleging that it had accommodated her to the point of undue hardship, her employer terminated her from her job only days before she was to return to work.

Another complaint involved a food clerk with attention deficit-hyperactivity and bi-polar disorders. Employed since 1994, the complainant was demoted to a lesser-paying position without warning in 2005. Humiliated by such treatment, his complaint alleged that he could have completed his duties with proper accommodations. In a mediated settlement, the respondent agreed to pay the complainant $8,500 in general damages and $15,000 in severance pay.

Under the Code, all Saskatchewan citizens are guaranteed the right to freedom from discrimination in the workplace, and to accommodation of disability where that would make productive employment possible. Employers have a duty to accommodate a mental disability unless doing so would create an undue hardship for the employer. Undue hardship is generally defined as intolerable financial cost or a disruption to business, or interference with the rights of others. In neither of these cases did the employers thoroughly explore how accommodation could be provided.

The stigma of mental illness remains a barrier to those who want to participate as equal citizens. Gaining a better understanding of mental disability is the first step in eliminating prejudice and stereotypes related to this type of discrimination.

Donna Scott, Q.C.
Chief Commissioner
Saskatchewan Human Rights Commission