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Abstract

This paper surveys leading and recent case law on disability with a specific focus on “non-mainstream” disabilities. Such disabilities are categorized according to the difficulty with which they can be medically diagnosed, their transient nature, and their fluctuations in severity. Jurisprudence on the duty to accommodate has been developed through what law professor Judith Mosoff classifies as “mainstream” disabilities. That is, disabilities that are better understood by employers and medical professionals, and to which the duty to accommodate more easily applies. In contrast, “non-mainstream” disabilities challenge the conventional understanding of the duty to accommodate. Standard accommodation practices do not necessarily assist persons with “non-mainstream” disabilities. As a result, “non-mainstream” disabilities are infrequently accommodated. Relevant human rights legislation is rendered ineffective because the threshold for undue hardship is easier for employers to meet in the context of “non-mainstream” disabilities. This leaves persons with these disabilities without recourse to statutory remedy. The lack of accommodation in the workplace further ostracizes vulnerable groups and reinforces inequality instead of addressing it.

This article is helpful for readers seeking to learn more about:

  • disability, accommodation, “non-mainstream” disabilities, discrimination, human rights, equality

Topics in this article include:

  • employment law, labour law, disability law, fibromyalgia, chronic fatigue syndrome

Authorities cited in this article include:

  • British Columbia (Public Service Employee Relations Commission) v British Columbia Government Services Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3
  • Honda Canada Inc v Keays, 2008 SCC 39