S. Michael Lynk

Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada

The rise of the accommodation duty, and particularly the accommodation rights of employees with disabilities, has been the greatest single innovation within Canadian labour law over the past twenty years. High Law principles on disability accommodation have been developed through a series of Supreme Court of Canada rulings, and these principles have been applied through the voluminous Low Law decisions of labour arbitrators and human rights tribunals. This article examines the dismal employment status of employees with disabilities in Canada, traces the emergence of the Supreme Court of Canada rulings, and critically examines the caselaw on disability accommodation from labour arbitrators, human rights tribunals and the common law courts. Although Canadian labour law transplanted the accommodation duty from the early civil rights jurisprudence in the United States, recent Canadian law on disability accommodation has headed in a much different direction than its American progenitor.

The Wall and the Law: A Tale of Two Judgements

Israels construction of a 670 kilometre wall and barrier through the West Bank and East Jerusalem has generated international political controversy, and two significant judicial rulings. In July 2004, the International Court of Justice issued its Advisory Opinion to the United Nations General Assembly, stating that the Separation Wall violated international human rights and humanitarian law, and proposing that Israel immediately dismantle it, with reparations to its victims. The week before, the Israeli Supreme Court released its decision in Beit Sourik Village Council vs Israel, finding that the Wall complied in principle with legal norms, but portions of it must be re-located to reduce avoidable harm to Palestinian villages. This article critically assesses the two decisions against the requirements of international law. It also tracks the response of the international community to Israels continued construction of the Wall in the aftermath of these two judicial rulings.

Employment Equity and Canada's Aboriginal Peoples

Aboriginal Canadians – First Nations peoples, Inuit and Metis – are the most disadvantaged social group in Canada, with significant gaps in their health, education and living standards compared to other Canadians. A 2010 social development index created by the federal government reported that, of the bottom 100 Canadian communities on the index, 96 were First Nations and one was Inuit; only one First Nation community ranked among the top 100 Canadian communities. These social disadvantages are reflected in the Canadian labour market: while the Aboriginal presence in the workplace has steadily improved during the past thirty years, there remain substantial differences in employment rates, job training, advancement to higher-responsibility positions and wage earnings that will not be closed any time soon. A meaningful legislative tool in the federal government’s hands is the Employment Equity Act, enacted in 1986 following the 1984 recommendations of the Commission on Equity in Employment (the “Abella Report”), and revised a decade later. There have been some remarkable employment equity gains for Aboriginal peoples over the past 25 years, but these gains have been too modest and incremental to qualitatively transform their labour force standing, let alone significantly close the social gaps separating them from the rest of the Canadian population. This essay attempts to measure the efficacy of employment equity over the past quarter-century on the working lives of Aboriginals in Canada, set against the landscape of their social well-being.

Labour Law and the New Inequality

Rising economic inequality in Canada and the Western world has become an unspoken but influential political theme over the past quarter century. The Great Compression between the late 1940s and the 1980s - which brought an unlamented end to the pre-war Gilded Age and its social inequities, established a post-war middle-class society in the industrial democracies, and created a host of equalizing institutions, including a vibrant union movement - has been unravelling since the rise of modern political conservatism. A hydraulic relationship exists between unionization and inequality. Countries that have higher unionization rates tend to have lower patterns of economic inequality. And as unionization rates decline, inequality tends to rise. In Canada, the political impulse to reform labour laws has been waning since the early 1990s, shortly after Canadian unions had reached their numerical zenith. As income and wealth inequality levels rose, labours share of the Gross Domestic Product has declined to record lows in the post-war era, wages have stagnated and most of the economic productivity gains over the past 25 years have been captured by those at the very top of the income scale. One significant explanation for the eroding levels of unionization in Canada has been the countrys stagnant labour laws. In particular, statutory changes to the union certification process in a number of Canadian jurisdictions has diminished the ability of unions to protect their representational levels. Empirical social science suggests that labour laws matter, not only for unionization levels, but as an important tool to enhance economic egalitarianism.