Ontario Human Rights Code
Under section 1 of the Code, people with disabilities are protected from discrimination in services. This protection includes education services.
Section 9 of the Code prohibits both direct and indirect discrimination. Section 11 states that discrimination includes constructive or adverse effect discrimination, where a requirement, policy, standard, qualification, rule or factor that appears neutral excludes or disadvantages a group protected under the Code.
Students with disabilities are also covered by the Code under section 8 if they experience reprisal or are threatened with reprisal for trying to exercise their human rights.
People are also protected from discrimination based on their association with someone with a disability . This could apply to friends, family or others for example, someone advocating on behalf of a student with a disability.
2.1.2 Defences and exceptions
The Code includes specific defences and exceptions that allow behaviour that would otherwise be discriminatory. An education provider that wishes to rely on these defences and exceptions must show it meets all of the requirements of the relevant section.
- designed to relieve hardship or economic disadvantage
- designed to help the disadvantaged group to achieve or try to achieve equal opportunity, or
- likely to help eliminate discrimination.
Review Of The Disability Standards For Education
In 2020 the Australian Government Department of Education, Skills and Employment undertook a review of the Standards through an extensive community consultation process. The Standards are reviewed every five years to test if they are effective in achieving their objects and whether any improvements could be made.
The Hon Alan Tudge MP, Minister for Education and Youth, released the final report on 12 March 2021. The final report makes 13 recommendations which reflect 4 reform directions:
- empowering and supporting students with disability and their families
- strengthening the knowledge and capability of educators and providers
- embedding accountability for the Standards throughout the education system
- building awareness and capability in the early childhood education and care sector.
A summary document is also available, which explains how the Review was undertaken, what the Review was found, and what it recommends. The summary document is also available in Auslan, Easy Read, and 11 languages.
What Should I Do If I Think My Child Is Being Discriminated Against
- Request to meet with the head teacher of the education provider to discuss the incident.
- Speak to the responsible body. This will be the Governing Body for Local Authority maintained schools and the Academy Trust if the school is an academy.
- Follow the education providerâs written complaints procedure.
- If you are unsuccessful at this stage, the complaint can be escalated to the Local Authority or the Education Funding Agency .
- Also/alternatively, make a claim for unlawful discrimination through the Special Educational Needs and Disability First Tier Tribunal in England.
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What Is The Public Sector Equality Duty Of Public Bodies
The Equality Act 2010 introduced a single âPublic Sector Equality Dutyâ which may also be referred to as the âgeneral dutyâ. It applies to public bodies, including maintained schools and academies, and extends to all protected characteristics â race, disability, sex, age, religion or belief, sexual orientation, pregnancy and maternity and gender reassignment.
The duty states that, in carrying out their functions, public bodies are required to have due regard to the need to:
- eliminate discrimination and other conduct that is prohibited by the Act
- advance equality of opportunity between people who share a protected characteristic and people who do not share it
- foster good relations, across all characteristics, between people who share a protected characteristic and people who do not share it.
In meeting their duty, schools are required to publish information to demonstrate how they are complying with the Public Sector Equality Duty and to prepare and publish equality objectives Regulations 2011).
Additionally, schools are required to publish an accessibility plan which must demonstrate how the school plan to:
- increase the extent to which disabled pupils can participate in the curriculum
- improve the physical environment of schools to enable those with disabilities to take better advantage of education and services and
- improve the availability of accessible information to those with disabilities.
Buy Accessible Goods Services And Facilities
Where possible, include accessibility design, criteria and features when purchasing new goods, services or facilities for your organization so that they are accessible to people with disabilities. When this is not possible, you must explain why, upon request.
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Summary Of Key Recommendations
A definition of consult is included in the Standards as well as direction as to when it should occur.
The Standards include a requirement that all students with disability have an individual education plan which cannot be enacted without the signed consent of the student or their representative.
Clarification of participation is included to ensure that it is not presumed that students with disability participate in an education program simply because they have a physical presence.
Mandatory training and professional development of all staff of education authorities, state and federal education departments and education providers on relevant human rights, legislation and disability education standards.
Provision of a copy of the Standards to all families/carers of students with disability.
Establishment of website which details educational rights & entitlements of students with disability.
That provision of funding to educational authorities be contingent on the establishment of an action plan detailing how education providers will be informed and receive professional development on the responsibilities under the Standards.
Development of a system which records known breaches of disability education standards and informs Department of Employment, Education & Workplace Relations of these breaches. There should be a mandatory requirement that action be taken to address identified systemic issues of concern.
What Can An Aoda Standard Include
A standard specifies the kinds of organizations or sectors of the economy that must follow it. For instance, some standards have rules that apply only to public sector organizations or private businesses with fifty or more workers. In addition, some organizations must obey more than one standard. For instance, a newly-built shopping mall must comply with the Design of Public Spaces Standards and the Customer Service Standards. Standards also provide deadlines for the organizations that must follow them. In other words, they specify how soon a business needs to begin following their rules.
Our next article will outline how standards development committees work to create AODA standards.
Aoda Requirements For Educational Institutions
Currently, the AODA only has five standards that Ontario organizations must follow to become more accessible. Committees are making more standards to prevent or remove barriers that current standards do not address. One of the standards that does not exist yet is an education standard. Two committees have been created to recommend what an education standard should include. One committee will identify barriers facing students from kindergarten to grade twelve. It will then recommend how an education standard should remove those barriers. In contrast, the other committee will identify barriers facing students in university and college. It will then recommend how a standard can support these students. In the meantime, however, there are still AODA requirements for educational institutions to follow.
What Is The Difference Between Direct And Indirect Discrimination
The DDA provides protection against both direct and indirect forms of discrimination. Direct discrimination means treating people with a disability less favourably than people without a disability would be treated under the same circumstances. Indirect discrimination includes:
- where there is a condition or requirement imposed which may be the same for everyone but which unfairly excludes or disadvantages people with disabilities in a manner that is unreasonable
- when a person treats another unfavourably on the basis of a characteristic that appertains generally to people who have such an impairment .
It is also unlawful for a person who is a staff member of an educational institution to harass, victimise a student with disability who has lodged a complaint under anti-discrimination legislation and/or discriminate against people because of their association with a student with disability.
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What Is Direct Discrimination
Education providers must not treat a disabled pupil less favourably simply because that pupil is disabled â for example, a school refuses to admit children or young people who are disabled. There is no justification for direct discrimination in any circumstances.
Discrimination by associationâ When a pupil is treated unfairly on the basis of another personâs protected characteristic. For example, it is discriminatory for a school to exclude a pupil because one of their parents is disabled.
Discrimination by perceptionâ When a pupil is treated unfairly because they are perceived to possess a âprotected characteristicâ when in fact they do not. For example, where a school perceives a pupil to be disabled and treats him/her less favourably as a result.
Disability Standards For Education 2005
The Disability Standards for Education 2005 clarify the obligations of education and training providers, and seek to ensure that students with disability can access and participate in education on the same basis as students without disability.
The Disability Standards for Education 2005 were developed under the Disability Discrimination Act 1992, and came into effect in August 2005.
In 2020, the Department of Education, Skills and Employment undertook the third review of the Standards on behalf of the Minister for Education. For more information, see the 2020 Review page.
Here you will find the Reviews final report, as well as a short summary document that outlines how the Review was undertaken, what the Review found and what it recommends. This summary document is available in Auslan, Easy Read, and 11 community languages.
The Australian Government will work closely with state and territory governments and education authorities to implement recommendations. Changes will be made with help and advice from people with disability and educators. This will include and Aboriginal and Torres Strait Islander people with disability. The Government will keep the community up to date about progress on these changes.
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How Do I Make A Complaint To The Tribunal
The First Tier Tribunal can decide disability discrimination claims and appeals. The claim must be filed within 6 months of the incident.
For more information on making a disability discrimination claim, see our How-To Guide on âClaiming Against Disability Discrimination in Schoolsâ.
Provide Accessible Customer Service
Your organization must provide customer service to people with disabilities that allows them to access your goods, services or facilities. This includes:
- communicating in a manner that takes a persons disability into account and upon request, provide accessible formats and communication supports for persons with disabilities
- allowing assistive devices, such as wheelchairs, scooters, walkers, etc.
- documenting individual accommodation plans
- creating a return to work process and plan for employees who have been absent from work due to a disability
- considering the needs of employees with disabilities if you have performance management or career development or re-deployment processes
Use the accessible recruitment tool to help make your hiring process more accessible.
Learn how to make your workplace accessible and get tips for accommodating employees with disabilities.
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Analysing Service Delivery Strategies
Do you conduct analyses to find out how services are being used by people with disabilities, and if there are any barriers to full participation?
Do you consult with stakeholders and people with disabilities in your analyses to increase the likelihood that solutions are appropriate and practical?
Do you promote measures, solutions, and best practices so that the general public, and most importantly people with disabilities, are made aware of them?
Do you have enough flexibility in your services and programs to adapt processes to respond to accessibility issues?
Ableism Negative Attitudes Stereotypes And Stigma
An ableist belief system often underlies negative attitudes, stereotypes and stigma toward students with disabilities. Ableism refers to attitudes in society that devalue and limit the potential of people with disabilities. According to the Law Commission of Ontario:
may be defined as a belief system, analogous to racism, sexism or ageism, that sees persons with disabilities as being less worthy of respect and consideration, less able to contribute and participate, or of less inherent value than others. Ableism may be conscious or unconscious, and may be embedded in institutions, systems or the broader culture of a society. It can limit the opportunities of persons with disabilities and reduce their inclusion in the life of their communities.
Ableist attitudes are often premised on the view that disability is an anomaly to normalcy, rather than an inherent and expected variation in the human condition. A great deal of discrimination faced by students with disabilities is underpinned by social constructs of normality which in turn tend to reinforce obstacles to integration rather than encourage ways to ensure full participation.
Everyone has a different normal. I used to think I was dumb and stupid but now I dont think that anymore. Anonymous, Student
In its own consultations with people with disabilities, the Law Commission of Ontario reported:
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Disability Standards For Education For Education Assistants
This course is designed to help you, as an education assistant, to uphold your legal obligations under the Disability Discrimination Act 1992 and the Disability Standards for Education 2005 . These obligations focus on providing fair access to education for students with disability.
As you will discover by doing this course, Australians with disability still face considerable barriers, many of which begin at school. In your role as an education assistant, you can make a huge difference. Your positive attitude and actions towards students with disability can set a high standard for your whole community.
Work at your own pace.
What Are The 3 Major Objectives Of The Disability Discrimination Act Of 1992
The DDA makes it generally unlawful to discriminate against people because of disability. It has three objectives, which in summary are: to eliminate as far as possible discrimination on the ground of disability. to ensure as far as practicable equality before the law for people with disabilities.
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Rehabilitation Act Of 197331
The Rehabilitation Act prohibits disability discrimination in programs operated by federal agencies, such as federal employment or receiving federal funds. Employment discrimination follows the same standards as Title I of the ADA. Section 121 of the Rehabilitation Act authorizes tribal grants for vocational rehabilitation services.
How Does Discrimination Affect Education
Experiencing discrimination can provoke stress responses similar to post-traumatic stress disorder. Children who experience discrimination from their teachers are more likely to have negative attitudes about school and lower academic motivation and performance, and are at increased risk of dropping out of high school.
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Americans With Disabilities Act
Federal law recognizes tribal sovereignty and immunity to encourage self-sufficiency and economic development8. Tribal Nations are, for the most part, largely exempt from the ADA. On the other hand, the Oglala Sioux Tribe of South Dakota, for example, passed the ADA as written in 1994.9 Oglala Sioux Tribe is not bound in a similar fashion as states and local governments. Instead, the tribal government implements and enforces the ADA independently like the federal government.
Under Title I, covered entities cannot discriminate against workers with disabilities in employment.10 Indian Tribes are explicitly excluded from the definition of employers.11 Title I does not exclude private employers located within Indian Country. The ADA requires Title I complaints to be filed with the Equal Employment Opportunity Commission. Varying between individual tribes, tribal law may permit legal remedies for disability discrimination in tribal governments. Tribal members should consult tribal laws of their individual tribe on whether legal remedies for disability discrimination are available.
Title II prohibits disability discrimination in public services.12 The term public entity means any State or local government and any department, agency, special purpose district, or other instrumentality of a State or local government.13 Tribal governments are not specifically mentioned, and employment and Indian law experts agree that it is doubtful Title II is applicable to Tribal Nations.14
Individuals With Educational Disabilities Act28
IDEA makes available free public education to eligible children with disabilities, and IDEA governs how states and public agencies provide early intervention, special education, and related services to children. IDEA authorizes formula grants to states to support special education and early intervention services, as well as discretionary grants to state educational agencies, higher education institutions, and non-profit organizations to support such things as research, technical assistance, and information centers.
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Preventing Harassment And Victimisation
The Disability Standards for Education also requires education providers to develop and implement strategies and programs to prevent harassment or victimisation of students with disability. Specifically, they must2:
Requests for adjustments to standard assessment practice may occur for students for whom the course design does not automatically provide full access. Reasonable adjustments refer to a measure or action taken to assist a student with disability to participate in education and training on the same basis as other students. An adjustment is considered reasonable if it achieves this purpose while taking into account students learning needs and balancing the interests of all parties affected, including those of the student with disability, the education provider, staff and other students. Refer to the Reasonable Adjustment section for further information.
When Disability Intersects With Other Code Grounds
Discrimination may be unique or distinct when it occurs based on two or more Code grounds. Such discrimination is said to be intersectional. The concept of intersectional discrimination recognizes that students lives involve multiple interrelated identities, and that marginalization and exclusion based on Code grounds may exist because of how these identities intersect.
For example, the United Nations Committee on the Rights of Persons with Disabilities has noted the effects of intersectional discrimination on girls and women in school:
Intersectional discrimination and exclusion pose significant barriers to the realization of the right to education for women and girls with disabilities. States parties must identify and remove those barriers, including gender-based violence and the lack of value placed on the education of women and girls, and put in place specific measures to ensure that the right to education is not impeded by gender and/or disability discrimination, stigma or prejudice. Harmful gender and/or disability stereotypes in textbooks and curricula must be eliminated. Education plays a vital role in combating traditional notions of gender that perpetuate patriarchal and paternalistic societal frameworks. States parties must ensure access for and the retention of girls and women with disabilities in education and rehabilitation services, as instruments for their development, advancement and empowerment.
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