In this Article, I examine considerations around stuttering as a disability and discrimination.
Is stuttering a disability?
Good question. I take the position that it is.
You may have heard or been told that stuttering is (or perhaps) is not a disability, especially in the context of someone “overcoming” or “conquering” their stutter. Some may consider that a stutter must be severe to be considered a disability, or your stutter is not severe enough.
As a lawyer, I can offer that there are many cases where the fundamental issue is whether a person has a disability. Defining disability is a complex, evolving matter. Case law tells us that disability should be interpreted in broad terms. The term “disability” covers a broad range and degree of conditions and is not exhaustive. A disability may have been present at birth, caused by an accident, or developed over time. The severity of a disability does not have to be consistent either.
For example, under the Ontario Human Rights Code (OHRC) “disability” means:
- (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
- (b) a condition of mental impairment or a developmental disability,
- (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
- (d) a mental disorder, or
- (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
Definitions of “disability” are often found in human rights legislation. These types of laws are given a broad, purposive, and contextual interpretations to advance the goal of eliminating discrimination. However, context is important. What is considered a “disability” under the Income Tax Act (ITA) may be different than human rights legislation. In this article, we are looking at disability through an employment lens.
You also need to be mindful of what legislation applies to you and in what context. For example, I work for the Government of Canada and for employment-related matters, I am subject to federal legislation: Canadian Human Rights Act (CHRA) and Accessible Canada Act (ACA). I also live in Ontario and in the context of my non-employment related matters, I am subject to the OHRC and Access for Ontarians with Disabilities Act.
Prima Facia Discrimination: the Moore Test (Moore v. British Columbia, 2012 SCC 61)
What is discrimination?
Depending on who you ask, there are many different definitions of discrimination. I like to define it as the differential treatment of persons or groups based on protected grounds often resulting in harm or disadvantage. Discrimination can take many forms, for example: direct (prima facie), indirect, subtle, or adverse impact. In this article, I am addressing direct or prima facie discrimination.
The term “protected ground” is important. Not all instances of discrimination are illegal.
Going back to the OHRC, regarding employment, the following grounds below in bold are protected grounds:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Discrimination based on one or more protected grounds is prohibited, with an exception from the Moore Test outlined below.
At present, there is no stuttering-specific test for establishing discrimination. Until one is created by legislators or developed through litigation, we need to rely on the Moore Test.
Simply put, Moore is a 3-part test that shifts the onus (or burden of proof) between the person alleging discrimination and the person performing the (alleged) discrimination. To keep things simple, I will use the terms Complainant and Respondent.
To demonstrate prima facie discrimination a Complainant must show that:
- They have a characteristic protected from discrimination,
- They have experienced an adverse impact*, and
- The protected characteristic was a factor in the adverse impact.
*For the purposes of this article, the adverse impact relates to their employment.
If a Complainant can establish all three, they will have established prima facie discrimination. However, the test is not over. Here the onus shifts to the Respondent to justify the conduct or practice (with clear and cogent evidence).
If the conduct or practice cannot be justified, discrimination will be found to occur. There are instances where discrimination be legally justified: if the requirement, qualification, or factor at issue is reasonable and bona fide in the circumstances. However, this analysis is highly contextual and fact specific. A party claiming justification of a conduct or practice cannot simply, on its face, claim it is reasonable and bona fide. That in my view, would be insufficient.
We will explore the issue the limitations of accommodation in a future article.
Disclaimer: The opinions and statements in this article are solely the author’s and do not represent the Government of Canada or the Department of Justice Canada. Nothing in this article should be construed or relied upon as legal advice or opinion.