The Globe and Mail, July 28, 2015
David Pettinicchio is an assistant professor of sociology at the University of Toronto.
Despite their differing approaches, both Canada and the U.S. face challenges in keeping their promise to improve the economic wellbeing of their disabled citizens.
Until recently, the U.S. had generally been regarded a world leader in disability rights, while Canadians with disabilities had to wait until the 1982 Charter of Rights and Freedoms and even there, activism was necessary in pressuring the government to include disability in the Charter. Meanwhile the U.S. government had already enacted disability rights and antidiscrimination legislation in the early 1970s.
In 1990, Republican President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law, calling it “the world’s first comprehensive declaration of equality for people with disabilities.” In addition to informing policies in other countries, the language of the ADA served as a basis for the UN Convention on the Rights of Persons with Disabilities. Then attorney general Richard Thornburgh referred to disability rights as “America’s best export,” while Senator Ted Kaufman called them as “American as apple pie.”
Sunday, July 26, marked the 25th anniversary of this landmark legislation.
But with employment rates among Americans with disabilities lower now than before the ADA was enacted an abysmal 18 per cent in 2012 and an earnings gap that has remained largely untouched over the last quarter century, the U.S., once world leader, has become a laggard.
How does Canada compare? Considerably better than its neighbour to the south, but there’s definitely room for improvement. In 2011, the employment rate among disabled people between the ages of 25 and 64 was about 49 per cent compared to 79 per cent for people without disabilities.
When they do work, Canadians with disabilities earn anywhere between 10 and 15 per cent less than similar workers without disabilities.
Among men working on a full-year, full-time basis, the average employment income was $69,200, compared with $92,700 among their non-disabled counterparts. Despite the Charter banning discrimination, 15 to 30 per cent of people with disabilities still report being denied a job interview or job because of their disability.
The Council of Canadians with Disabilities suggests that the Charter has been more “symbolic than substantive.” There is no real Canadian equivalent to the ADA, many people instead refer to a “patchwork” of confusing disability policies and regulations.
Provinces have enacted their own legislation. For instance, Ontario has a fairly comprehensive disability rights policy. However, the employment rate among Ontarians with disabilities is still about three times less than people without disabilities. Workers with disabilities in Ontario earn on average about 12 per cent less than workers without disabilities.
And policies like the ADA haven’t provided more substantive national remedies than the Canadian Charter either. On the contrary, disability rights legislation in the U.S. has been mired in judicial (mis)interpretation, a victim of a weak and unstandardized regulatory mechanism. This was the opinion of many in Congress when they sought to “restore” the original spirit of the ADA in 2008.
Despite their different legal contexts, Canadian courts have resembled their American counterparts in their reluctance to embrace the spirit of the Charter when it comes to equal rights for the disabled. Many disability activists point to the 1997 Eaton case as an example where the Canadian Supreme Court ruled that segregating people with disabilities in education isn’t always discriminatory.
Experts continue to point to the lack of federal resources allocated to the Canadian Human Rights Commission. And, just last year, The Globe and Mail reported on the failure of the Canadian government to monitor compliance when it comes to disability discrimination.
If rights for people with disabilities were once labeled as “American as Apple Pie,” they should be as Canadian as… maple syrup. Whether or not the Charter is guilty of being more platitude than policy is a much bigger debate than can be had here. What is certain is that the solutions to the ongoing problem of unemployment and income inequality among people with disabilities isn’t necessarily about how policy manifests itself through a legislature or a constitutional amendment but whether there is a commitment to subsequently enforce these good intentions.