Harold Doherty is a leading Canadian autism advocate. He has a blog, on which he has just posted his expert opinion (Mr Doherty is a lawyer) about a legal case I lost a long time ago. I lost this case for two separate reasons, reasons which are clear if you read the full, original decision.
The first reason is that in Canada, the Labour Code only protects workers who are judged to be "normal", as opposed to all those who are able to perform any particular job. So those who are not deemed "normal" are considered to have a "medical condition", are not protected, and can be obliged to do pretty much anything by their employers, even if it is dangerous to them. E.g., while it is illegal to put a hearing person in danger by not providing proper ear protection in a noisy environment, it is not illegal to put a deaf person in danger by removing from their workplace the kinds of information they need in order to work safely. The deaf person is considered to have a "medical condition", even in a workplace where s/he has advantages over hearing persons, and not to be entitled to a safe workplace under this law. I used this specific example when I argued the appeal.
The second reason is that what I was being asked to do was not part of my job description, and therefore did not fall under the law. That is, if an employer asks you to do something dangerous, you cannot use this law to refuse, if this something is not part of your job description.
The original decision hinged on wording that was only available in one language, an anomaly which caused a lot of dictionary-searching. It was long ago (regardless of Mr Doherty presenting this as news), but I vividly remember the extent to which the original decision was based on semantics.
The first reason, as described above, is problematic. It means if you are not "normal" (by the definition of whoever decides these things), no matter how well you do your work, you can be gratuitously put in danger at any time by your employer, and you do not have the right to refuse to do what they demand. Your only recourse is a human rights case, which would involve losing your job and taking years and years to fight (at your own expense) for an uncertain outcome. However, Mr Doherty is not objecting to this interpretation of the law, but to the fact that I contested it.
In my case, I was gratuitously put in danger, and this continued for a long time with multiple variations on the theme. Mr Doherty's complete response to this is in the link above, including the derisive implication that I was arguing that autism is an occupational hazard. No, Mr Doherty, I was arguing that the consequences of disability-based harassment and discrimination, including the disregarding of relevant laws and contracts, are hazardous in many ways, including to one's safety.
This is my response to Mr Doherty, major league Canadian autism advocate, and his views of an autistic adult attempting to make workplaces safe for autistic people. I've also posted this response here. The CSST (a French acronym) is Quebec's workers health and safety board.
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That is an extremely and deliberately misleading subject line.
I had a better safety and work record than most Canada Post letter carriers, and maintained this for a long time. It was recognized, e.g., that I could work safely, accurately and quickly in hazardous conditions that my co-workers refused to work in.
This case involved an illegal (no legal or contractual basis, no credible reason of any kind was ever given) expertise which was scheduled in many contradictory ways, including without notice. Notice was required, both under the law and under the collective agreement.
Provincial but not federal jurisdiction workers are protected from this kind of harassment under a provincial law (ARIAOD, administered by the CSST). This kind of harassment, in my case, set precedents such that no one knew what to do or how to apply the law.
For example, apart from never agreeing with themselves over why an expertise was being demanded (only about half the time was I told it had something to do with the short, long-ago work accident), Canada Post management threatened me with disciplinary action if I refused to see a doctor who did not exist. This "doctor" was not listed as a doctor anywhere in Quebec, and it turned out that indeed, he did not exist.
Throughout the time of this case, and long after, I was at work and doing my job to the usual "exemplary" (Canada Post's word, in writing) standards. My attendance record was recognized as superb, with extremely infrequent absences for any reason.
The expertise was never related to autism, though multiple conflicting reasons for this expertise were given by Canada Post. Sometimes different reasons were given on the same day, as the threat continued for months. The duly certified injury on duty leave lasted 4 days and was my first declared work accident for 8 years. Canada Post failed to ask for an expertise within the time allowed for by the CSST's law (ARIAOD), but continued to demand an expertise for months after the time allowed, though for multiple different and contradictory reasons not founded in any contractual or legal right on their part.
I don't know about the autistics Mr Doherty works with, but it has been very dangerous for me and many other autistic adults to see health-care professionals who have no knowledge of autism--the kind of professional I was being forced to see. This was regardless that it was suggested (by doctors) that I see doctors who were knowledgeable in autism, something I would have been willing to do if a credible reason were provided for an expertise. Instead, the suggestion that I see doctors who had some familiarity with autism (doctors I had never seen before and didn't know of) was rejected by Canada Post.
The obstacle to employment for autistics here is not a failed attempt to protect us from being put into danger via gratuitous threats of an illegal medical expertise. The obstacle comes from a psychologist (a behaviour analyst) who recently informed Canada Post at the national level that there is nothing good about autistic people. This psychologist promoted a dire view of autistics as being less than human (e.g., we have no emotions) and good for nothing (e.g., if we have any abilities, we use them in totally useless ways), which Canada Post took and continues to take to heart. Yes, this psychologist was prosecuted for her grossly biased presentation and for conflict of interest (I was her client) by the Quebec Order of Psychologists, but it was already far too late. Having a long-standing excellent work record, including in the area of safety, does not protect you against this kind of professionally-promoted prejudice.
All of the above has been testified to, complete with hundreds of pages of evidence (some of it publicly available), at the Canadian Human Rights Tribunal, in the first autism-related case referred for a hearing there. This case is the result of my revealing my diagnosis to Canada Post after 11 years of service, and succeeds a previous Canadian Human Rights Commission case that was settled in my favour.
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It's unclear what Mr Doherty would have wanted me to do. He does seem to be implying--I'm sure he'll correct me if I'm wrong--that an autistic who knows a medical expertise is likely to be dangerous should not be believed, even when (as in my case) she has medical documentation to back her up. And nor, apparently, should any consideration be given to engaging a medical professional who has some knowledge of autism. This is typical of how my attempts to stay autonomous--and not require a high level of services, and to basically survive--have been dealt with by Canada's important autism advocates.
22 comments:
I did not imply anything. I commented on a reported legal decision in which you were involved. It was an occupational health and safety case. You argued your case on the basis of your autism arguing that it rendered your direction to attend a medical an occupational danger. You lost at the investigation stage and on appeal.
Your personal attacks are unnecessary and unwarranted. I make no comment on your human rights cases but if you wish to email them to me I would be happy to review them and comment.
I am proud of being an autism advocate. I advocate because of my son who has classic Autism Disorder. You can see pictures of him on my blog site if you wish at:
http://autisminnb.blogspot.com/2006/09/conor.html
Hi Mr Doherty,
That was not the basis of my argument, since there were conditions under which a medical expertise would not be hazardous, provided a credible reason were provided for requiring one and the necessary notice was given (in fact, many plans were made about this at the time).
Unfortunately, those conditions were refused by Canada Post, and no credible reason (one founded in the relevant law or in the collective agreement) was given by Canada Post for the expertise. Indeed, as I wrote, multiple contradictory reasons were given, both before and after the original Labour Canada hearing and the futile appeal.
And no, Canada Post never got their expertise, though they maintained the threat for months, without reason. They were well outside of the work accident law (ARIAOD) from the outset, and made no attempt to follow procedures allowed for in the collective agreement. Months after I had returned to work after the 4-day work accident, I was in a conference call with two high-up (regional manager, regional health and safety person) Canada Post executives who disagreed with each other about the basis for the expertise but were demanding one anyway.
However, I only started the Labour Canada case because I was told it was a reasonable avenue. It wasn't. I had no way of winning this case, because the Labour Code does not protect disabled employees, autistic or otherwise, and because of the definition of the French word "tâche".
On your blog, you wrote:
"It is not clear from the decision why Ms. Dawson felt that a direction to attend a medical examination posed a danger to her because of her autism. Had Ms. Dawson's argument been accepted though it might have been used by federally regulated employers to deny workplace opportunities to employees with autism."
In other words, you are saying if I won, this would have been harmful. As I wrote, this raises the question of what you would have had me or any other autistic do in the situation I was in. Do we go to an illegal expertise we know (from experience) is likely to be dangerous, or do we try a bit harder to maintain our autonomy and our means of making a living?
Also, the title of your post, "Autism Not an Occupational Safety Hazard" is inaccurate and misleading, as I mention.
Like you, I don't see how calling a person an autism advocate is a personal attack, so I see no personal remarks or attacks in what I wrote about you.
I posted this to the NB blog, he has comment moderation on, so I'll put it here, too.
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So was Canada Post right to tell Michelle she had to go see a non-existant doctor?
Who is disabled? If Michelle had gone to see the non-existant doctor and reported that she had seen him, would they have declared her mentally ill?
It appears that Canada Post refused to accept a medical opinion from a doctor with experience in autism is that correct? Why would they do that?
Seems very weird. Seems like they were harassing Michelle and trying to get her to quit because they found out she was autistic.
I've also left a comment on Mr Doherty's blog, in response to this comment of his. In case it's moderated, here's my response (or as close as I can reconstruct it):
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I did not and would never argue that "autism is an occupational safety hazard". In this case, you would also have to claim that my non-autistic coworkers who refused work (on the grounds that this was dangerous for them) that I could do safely and easily were arguing that "non-autism is an occupational safety hazard".
I did argue that disability-based harassment can result in occupational hazards. With your expertise, you will immediately recognize that this is a futile argument at the level of the Labour Code. One is required to argue this kind of case at the level of human rights.
Also, it was not an expertise per se that I refused, but an expertise under various circumstances, including that it had no legal or contractual basis, no notice, etc., and that suggestions (by professionals) as to how to make an expertise safe were refused by Canada Post. Again, you will immediately recognize that none of this is of any concern to Labour Canada.
This does not mean it is difficult to decribe my own arguments (however incompetent they were, seeing as I was in the wrong venue) and situation accurately. But how you decide to describe this, and what position you adopt, is up to your own standards, and the standards you believe autistics deserve.
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Okay, here's the comment I submitted to Harold's blog:
Harold, I don't agree that the tribunal "concluded that your disability (autism) was not a danger or hazard created by the workplace." I can see why you would not want a finding that autism is an occupational hazard. But that was not the question here.
Both the Health and Safety Officer and the Tribunal read Canada Labor Code Section 128.(1)as requiring that the danger be inherent in the machine, thing, condition, or activity, and not result from the employee's disability. Reasoning that attending the mandated medical exam would not be dangerous except for the autism, they concluded that the activity of attending the medical exam was not dangerous under Section 128.(1)(c).
What this decision means is that if a machine, thing, condition or activity does not pose a danger to most people, but only to some disabled people due to their disabilities, it is not dangerous under Section 128.(1). Therefore, nobody would have the right to refuse to work with the machine or thing, or work under the condition, or engage in the activity, even if it poses a danger to them because of their disability.
November 27, 2006 5:28 PM
Harold wrote:
"I am proud of being an autism advocate. I advocate because of my son who has classic Autism Disorder."
Okay, here's a hypothetical question. Assume your son has a job, and none of his job activities are dangerous to him or to anyone. Further suppose that his employer decided to require an additional activity that would be dangerous to your son because he is autistic, although it wouldn't be dangerous to others.
Would there be a legal basis for him to refuse to carry out that new activity, or would he be required to do it anyway as a condition of retaining employment?
Mr. NB :
Just the act of seeing a 'medical professional' can be dangerous in Canada. While talking about thoughtcrimes is typically similar to invoking Godwin's law, it is also accurate at this level : under the OMHA, it's quite possible to involuntarily commit an individual to a mental institution with very little actual purpose or oversight. Given the applause meeting folks who parade around autistics as being 'worse than cancer', finding two mental health 'professionals' willing to commit an individual as being a danger is far, far too easy.
For those new to this sort of thing, such an action is fairly equal to instant damnation to the local grocery store for life, if that. Hiring practices for those deemed to have been mentally disturbed to such a degree is... problematic.
Nevermind that the Post was effectively stating that it could, for example, require individuals with severe allergies to peanuts to dip their hands in especially if such an act wasn't described as part of their job description (if I'm reading this correctly).
If you wish to damn your son to such a fate, go ahead and condemn Mrs. Dawson's legal action. As it is, I'd rather not be put in a job where I'm likely to be required to do acts which significantly endanger me, and would prefer protection against those who would wish to force such status.
Dang
I should have read this lot before putting a comment on Harold's blog - it'll never see the light of day and I didn't think to make a copy.
I thank you all for your legal interpretations of the Michelle Dawson v Canada Post decision. I respectfully disagree with them.
I commented on the decision as it is publicly reported not based on any other information. For those who don't know, such decisions are used as precedents, and can be used in other fact situations to support other employers and or employees. Had Ms. Dawson's argument succeeded it would have been used by employers in exactly the way I indicated. Fortunately it was rejected and she sought a more appropriate forum - a human rights tribunal - in which to make her arguments.
So far as I can tell, Mr Doherty is saying that if disabled people have the same protection against being gratuitously put in danger as non-disabled people, then this is a good reason for employers not to employ us.
Meanwhile, other kinds of advocates fight for the basic rights (including the safety) of disabled people, and for our equality, not against this.
So, your argument is that your son should be hired for positions which are not safe for him, and have no legal protection when the fit hits the shan?
Therefore, nobody would have the right to refuse to work with the machine or thing, or work under the condition, or engage in the activity, even if it poses a danger to them because of their disability.
Sounds like something requiring a political solution. This law is inherently biased against disabled people in general. An employer could easily put a disabled worker in a situation that would result in the employer having an excuse to fire the disabled employee.
"I thank you all for your legal interpretations of the Michelle Dawson v Canada Post decision."
Hey, no problem, I won't even send you a bill.
"I respectfully disagree with them."
But you don't explain why. I explained why I think your reading of the decision is wrong, based solely on the published decision. You have no argument to support why you think your interpretation is the right one.
"For those who don't know, such decisions are used as precedents, and can be used in other fact situations to support other employers and or employees."
Yes, that's the problem, isn't it? The precedential effect of this decision does not benefit disabled employees in any way. It's not a case *I* would cite to help a disabled client in a dangerous workplace situation.
Michelle Dawson:
"So far as I can tell, Mr Doherty is saying that if disabled people have the same protection against being gratuitously put in danger as non-disabled people, then this is a good reason for employers not to employ us."
I did not say that at all Ms. Dawson. Your argument was that because you have an autism spectrum disorder it would be dangerous for you to attend an employer required medical examination. You chose the safety provisions of the Canada Labour Code. Had your argument succeeded employers could have used your argument to deny opportunities to employees with autism spectrum disorders and would have had your case as a precedent to strengthen their argument. Fortunately your argument was rejected.
"Meanwhile, other kinds of advocates fight for the basic rights (including the safety) of disabled people, and for our equality, not against this."
I advocate for government funded interventions to help autistic persons at the pre-school and school levels, for a real education for persons with autism, who do not have your communication skills, and for decent residential care for autistic adults. Simple disagreement with you is not reason to cast aspersions on those efforts. But feel free to attack my efforts if you wish.
Respectfully,
Harold Doherty
Conor's Dad
http://autisminnb.blogspot.com/2006/09/conor.html
No, Harold, you are mischaracterizing the decision. For anyone who wants to read it, it is here.
Outside of autism, most advocates claiming to be concerned with the well-being of disabled people would not argue that it is a good thing that we are not protected from being deliberately and gratuitously put in danger in workplaces where we are as capable as or more capable than non-disabled people to (safely) perform the work at hand.
The consequence of this, as has already been pointed out, is that an employer who does not want a disabled employee is free to deliberately and gratuitously put that employee in danger. A disabled employee then has the "choice" of being in danger, or of losing his/her job.
Interesting that autism advocates describe autistic adults as burdens and drains on society (with dollar figure attached), and also oppose efforts to have autistic employees protected by the laws that protect non-autistic employees, laws that make it possible for non-autistics to succeed in the workplace.
I can't improve on Anne's analysis of this case (where were you in 2002, etc.), and agree with her that Mr Doherty has not supplied a credible basis for the interpretation and position he has publicly posted.
I haven't "cast aspersions" on Mr Doherty's efforts, nor have I attempted to diagnose him over the Internet.
However, like many other autistics, I live the consequences of his work, and of the work of other eminent autism advocates, every day. Unlike advocacy in other areas, like Down syndrome, autism advocacy makes it very difficult for autistics to proceed safely anywhere, whether in workplaces or in our communities and in society in general.
I removed the post above, from Anonymous, because, among other reasons, it was an anonymous message including a personal phone number.
Anonymous posted about the abuse of an Asperger boy in an unnamed Mississippi school. This boy has also been denied services.
I'm going to suggest to the anonymous poster that s/he contact the Autistic Self-Advocacy Network (ASAN), an American advocacy organization that has the expertise to help the Asperger boy who is both being denied help and being directly harmed.
ASAN's website is here. There is contact information here.
Robin, I passed along your first message (the one I deleted) to a person at ASAN. But I still suggest you contact ASAN yourself (I'm not sure what "I CAN'T GET A CALL BACK FOR ASAN" means, sorry).
I'm in Canada and have very limited knowledge of resources, laws (re child protection, the duty to report child abuse or neglect, and so on), etc., in the US.
Apart from contacting ASAN, I suggest contacting disability organizations in Mississippi (or nationally, if that's necessary) until you find one that can help your son. Also, given the apparent urgency of the situation, it looks like you should get legal advice and assistance.
Robin has posted numerous similar (all capitals, e.g.) messages on this and other blogs (e.g., see the messages here), most with one or two phone numbers attached.
According to Robin, this kind of action on her part does not seem to have led to the kind of help Robin wants. Robin has not given any reasons why the well-known organizations who Robin has approached have not been able to help or to refer her to those which could help.
I'm going to repeat my suggestion (above) that Robin undertake to get directly in contact with disability organizations, with organizations which can provide legal advice and assistance, etc., in the state where Robin lives. These organizations would have the possibility of helping her son or have the possibility of referring her to organizations and resources which may help her son.
Please, remove posting for me. Robin Hodges
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