The Social Phenomenon of Handicapping
| Author | Ena Chadha |
| Pages | 209-227 |
Twelve
The
Social
Phenomenon
of
Handicapping
ENA
CHADHA*
Introduction
In
the
legacy
of
important
equality rights jurisprudence authored
by
Justice
L'Heureux-Dube,
the
Merrier1
decision will stand
as a
significant milestone
in
the
advancement
of the
rights
of
persons with disabilities.
At
first
blush,
the
key
legal question raised
in
Merrier,
specifically
what constitutes
a
"handicap,"
appeared simple
and
straightforward compared
to
weighty
and
controversial
disability judgments previously rendered
by the
Supreme Court
of
Canada.
By
the
year 2000,
the
Court
had
already tackled such contentious disability issues
as
forced
sterilization,
the
right
to
die,
and
segregated versus integrated edu-
cation.2
In
fact,
one
wondered what aspect
of
this seemingly ordinary disabil-
ity
employment discrimination case
the
Supreme Court considered
to be of
such paramount national interest
to
warrant granting leave
to
appeal.
The
importance
of the
Merrier
decision
is
found
in
Justice L'Heureux-
Dube's
lucid
and
thoughtful understanding
of the
multi-dimensional nature
of
disability
and her
progressive approach towards eliminating disability dis-
crimination
and
inequality.
In
Merrier,
Justice
L'Heureux-Dube
did
with ease
and
eloquence what
she is so
good
at
doing—identifying
and
naming preju-
dice,
barriers, myths,
and
stereotyping. Justice L'Heureux-Dube introduced
Canadian jurists
to the
"social phenomenon
of
handicapping."3
In
Merrier,
she
recognized
that
disability
is a
complex phenomenon
that
manifests
not
209
210
ADDING FEMINISM
TO LAW
only
as a
physical condition,
but
also
as a
social
and
cultural state
of
being.4
Writing
on
behalf
of a
unanimous Supreme Court,
Justice
L'Heureux-
Dube
boldly interpreted
the
term "handicap"
to
include
a
form
of
disadvan-
tage
that arises
out of
society's prejudice
and
paternalistic stereotyping
of
dis-
ability.
By
conceiving disability
as
having both objective
and
subjective
dimensions
and as
being contextual
in
experience,
the
Mercier
decision
emerges
at the
forefront
of
disability jurisprudence with
its
developing
awareness
of the
"universality"
of
disability. Universalism,
as a
theory
of
dis-
ablement,
is
grounded
in the
notion that disability
is not a
fixed
and
special
condition
of a
homogenous
group,
but
rather
is
fluid
and
affects
all
members
of
humankind.5
Facts
of the
Case
In
Mercier,
the
claimants were persons with disabilities
who
were
refused
employment
or
fired
because
of
their health conditions, notwithstanding
the
fact
that their conditions
did not
produce
functional
impairments.
Rejeanne
Mercier
applied
to the
City
of
Montreal
for a job as a
gardener-horticultural-
ist.
Her
pre-employment
medical examination revealed
an
anomaly
in her
spinal column. While
the
medical evidence established that there
was no
spe-
cific
limitation
arising
out of
Mercier's
condition,
the
City
of
Montreal
was
concerned that Mercier could develop lower back pain.
The
second com-
plainant, Palmerino Troilo,
a
newly
hired
police
officer
with
the
City
of
Boisbriand,
was
diagnosed with Crohn's disease
and
underwent surgery dur-
ing
his
probation.
Although Troilo
was
medically cleared
to
return
to
work,
the
City
of
Boisbriand terminated
his
employment
on the
basis that
he
pre-
sented
a
risk
of
absenteeism.
A
third
individual, Jean-Marc Hamon,
was
refused
employment
as a
police
officer
by the
Communaute
urbaine
de
Montreal when
he was
diagnosed with anomalies
in his
spinal column,
although
it was
determined that
the
condition
was
asymptomatic.
In all
three
situations,
the
medical evidence indicated that
the
claimants could perform
the
regular duties
of the
job.
In
seeking
to
enforce
their right
to be
free
of
disability discrimination,
each
claimant
filed
human rights complaints with
the
Quebec Commission
des
droits
de la
personne
et des
droits
de la
jeunesse. With respect
to the
claims
of
Mercier
and
Troilo,
the
Human
Rights Tribunal held that
the
claimants
had
To continue reading
Request your trial