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An Autistic at the Canadian Human Rights Tribunal

by Michelle Dawson

"... the Tribunal finds that the complaint filed by Ms. Dawson against Canada Post is substantiated and that the Respondent has contravened sections 7 and 14 of the Act." 
That's from paragraph 248 of a decision released by the Canadian Human Rights Tribunal on the morning of October 3, 2008, in the first ever autism-related case referred to this Tribunal for a hearing. 

You can find this decision here in html and here in pdf. 

In some ways it's a very strange decision, with a stupefying number of just huge factual errors in it. Due to my own incompetence in representing myself (and in just generally functioning throughout the extensive hearings) and for other reasons, including the enormous factual errors made by the Tribunal, I lost some aspects of this case. But to my own astonishment, I won other aspects. Indeed the aspects I won are those most important to me, and also those which I was firmly discouraged from pursuing by the Canadian Human Rights Commission (which was a party to this case, representing the public interest). 

Setting aside the astounding factual errors about the specifics of the case, as I believe they should be set aside, and setting aside my own personal situation, as I believe should also be set aside, this decision is entirely good for autistics in Canada. It is unprecedented in establishing under a human rights law in Canada that autistics--as autistic people, and regardless of what kinds of interventions we may or may not have received--are human beings with human rights. 

Here is an excerpt: 

[242] Be this as it may, the Tribunal finds it disturbing for the future of autistic people that they be seen because of their condition to pose a threat to the safety of others and some form of nuisance in the workplace. An employer has a duty to ensure not only that all employees work in a safe environment but also that ill perceptions about an employee's condition due to poor or inadequate information about his disability lead other employees to have negative and ill-founded perceptions about him. 

[243] An autistic person should expect that his workplace be free of any misperception or misconception about his condition. It goes to the right of autistic individuals to be treated equally, with dignity and respect, free of any discrimination or harassment related to their condition. In this respect, in a society where human rights are paramount, an employer has the duty to dispel such misconception or misperception about such individuals. 

[244] This duty stems from the Canadian Human Rights Act and the need to get rid of any discriminatory behavior in the workplace as well as in society in general. It is worth reminding employers as well as society as a whole that the purpose of the Canadian Human Rights Act, as stated in section 2 of the Act, is to give effect to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

[245] Autistic people, if they want to be able to accomplish themselves in a workplace or in society, need to be reassured that everything possible short of undue hardship will be done in order to ensure that misperceptions and misconceptions about their condition are properly handled by their employer, so that co-workers have a proper understanding of their condition and are not inclined to discriminate against them or harass them. 

[246] To discriminate on the basis of somebody's physical appearance or social behavior might be one of the cruelest forms of discrimination. Here, Ms. Dawson was seen or perceived, at one point in her career at Canada Post, to be a threat to her co-workers because she had self-injured in the past, not because she had assaulted colleagues. She was later on perceived as a form of nuisance because she insisted on obtaining rational responses to her queries and never backed down. The fact of the matter is that Ms. Dawson was, until her diagnosis became officially known to Canada Post in 1999, seen as an excellent employee. 

[247] The Tribunal is of the opinion, in view of the evidence, that the Respondent needs to review its policies in relation to discrimination and harassment and put in place educational programs that will sensitize its employees as well as management to the needs of disabled individuals in the workplace, notably autistic individuals, so that individuals such as Ms. Dawson will not have to suffer from a lack of knowledge and understanding of their condition. In this respect, given the Canadian Human Rights Commission's expertise in these matters, the latter can surely provide assistance, which should be welcomed, to the Respondent.

What I was dreading most was the same thing I had dreaded in Auton at the Supreme Court of Canada: a decision that would harm autistics, would make our lives even more difficult, would further limit our possibilities, would make it less likely that we would ever be given the opportunity to demonstrate our ability to contribute to society as autistic people. But this Tribunal decision, for all its faults with respect to the facts of the specific case, is instead a step in the right direction. It's a step towards human rights for autistics in Canada, and towards all the possibilities human beings have, when we are regarded and treated as equals, and can proceed in society as fully human beings with human rights and dignity. 

As one autistic person, I did the best I could (with many thanks to those who helped along the way). And I didn't win every aspect of this specific--and very difficult and exhausting--case. But for all autistic people, this Canadian Human Rights Tribunal decision is a one hundred percent victory.

[Note: for clarity, the title "Another autistic victory” alludes to a 2005 article I wrote called "An autistic victory,” about the Auton Supreme Court of Canada decision.]


© Michelle Dawson 2008 | Published October 4, 2008
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