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Environmental Sensitivities, Disability and Medical Evidence

International approaches to definitions of disability in human rights protection vary in their reliance on medical diagnoses and symptoms. At one end of this spectrum are the Canadian and Australian approaches, in which a very broad definition of disability is adopted.³ As a result of this, complainants are required to provide minimal medical evidence to establish that they qualify as persons with a disability, and individuals with environmental sensitivities do not need to prove the veracity of their condition. In fact, the courts have specifically held that the inability of the medical community to diagnose a condition or identify its cause does not affect whether an individual has a disability, so long as its triggers can be identified.⁴ Instead, the analysis is meant to focus on the individual’s accommodation needs and the behaviour of the employer or service provider.⁵

In contrast, the Americans with Disabilities Act (ADA) applies a very restrictive medical test for an individual to qualify as a person with a disability and be eligible for protection under the ADA.⁶ Individuals with environmental sensitivities often find it difficult to establish that they have a disability under this definition. In one case, for example, the United States District Court held that a woman did not qualify as a person with a disability because her sensitivities to chemicals only affected a major life function (breathing) while at the office and exposed to chemicals.⁷ Numerous other decisions have similarly concluded that environmental sensitivities do not qualify as a disability under the ADA because of their intermittence.⁸

b. Evidentiary Difficulties

The reliance upon medical evidence in the United States places individuals with environmental sensitivities at a particular disadvantage as a result of the scientific confusion or broad acceptance of environmental sensitivities, the diagnostic difficulties, and the variation in triggers, symptoms and severity. American courts have frequently refused to allow expert testimony on sensitivities because they have concluded that it does not meet the test of scientific reliability for the acceptance of expert evidence.⁹ As a result, individuals with sensitivities are often required to identify their disability more restrictively so as to obtain the status of scientific reliability. They may, for example, state that their disability is asthma or an allergy to a particular chemical.¹⁰ However, this may have a detrimental impact upon other aspects of the discrimination analysis, including whether a major life function is affected and what accommodations the person may require.

While the Canadian and Australian approaches do not rely as heavily on medical evidence, particularly in establishing that a person qualifies as a person with a disability, such evidence remains necessary and relevant in determining what accommodations the person requires. The authors have not identified any Canadian jurisprudence regarding the acceptability of a medical opinion on an environmental sensitivity as it relates to needed accommodations, but such an obstacle to complainants can be anticipated and frequently arises for individuals in workplace injury compensation regimes.¹¹

The general lack of knowledge on sensitivities within the medical community and the unavailability of tests to identify particular triggers may act as an obstacle to the treatment of sensitivities and to a complainant’s ability to identify appropriate experts to testify before a tribunal or provide evidence to an employer about accommodation needs.¹²

Recommendation 1: Where an individual with a poorly understood disability is unable to provide expert medical evidence, the employer, service provider or other decision maker should seek an informed expert opinion on the effects of the condition and the resulting accommodation needs.

Recommendation 2: Employers, service providers and other decision makers should ensure that, if accommodation requests are rejected, it is not because the medical evidence provided is not as unequivocal as it may be with other disabilities: knowledge and understanding of the condition is still developing, and the expectations regarding medical evidence should reflect this.

3. Disability is defined in section 25 of the Act as “any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.”

Section 4 of the Australian Disability Discrimination Act (DDA) 1992 (Cth.) defines disability in an equally broad manner, however with more detail, as:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
4. Brewer v. Fraser Milner Casgrain LLP, [2006] A.J. No. 625 (Q.B.).  Note that this decision is currently under appeal.
5. See e.g. Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 at para. 26.
6. To qualify as a person with a disability under the ADA (42 U.S.C. § 12102(2)), a claimant must have, be perceived as having or have a history of a “physical or mental impairment that substantially limits one or more of [their] major life activities.” 
7. Jones v. Ind. Civ. Rights Comm'n, 2006 U.S. Dist. LEXIS 23954.
8.  See e.g. Owen v. Computer Sciences Corp., 1999 U.S. Dist. LEXIS 12635; Minor v. Stanford University/Stanford Hosp., 1999 U.S. Dist. LEXIS 9135; and Farrish v. Carolina Commercial Heat Treating (2002), 225 F. Supp. 2d 632.
9. See e.g. Treadwell v. Dow-United Techs (1997), 970 F. Supp. 974; Gabbard v. Linn-Benton Hous. Auth. (2002), 219 F. Supp. 2d 1130; Frank v. New York (1997), 972 F. Supp. 130; Coffey v.County of Hennepin (1998), 23 F.Supp.2d 1081; Yacher v. Shalala (2000), EEOC DOC 03A00077.
10. See e.g. Treadwell v. Dow-United Techs (1997), 970 F. Supp. 974.
11. See e.g. Nova Scotia Teachers Union v. King's County District School Board (Manzer Grievance), [1997] N.S.L.A.A. No. 10; Nova Scotia Teachers Union v. King's County District School Board (Van Zoost Grievance), [1996] N.S.L.A.A. No. 6; Decision No. 899/97, [1998] O.W.S.I.A.T.D. No. 1695.
12. See e.g. Wachal v. Manitoba Pool Elevators, [2000] C.H.R.D. No. 4 (C.H.R.T.), where complaint dismissed for lack of evidence linking disability with absences; United Parcel Service Canada and Smith, [2000] C.L.C.R.S.O.D. No. 15, where unsuccessfully invoked right to refuse unsafe work because no evidence linking health reactions and the workplace; Brewer v. Fraser Milner Casgrain LLP, [2006] A.J. No. 625 (Q.B).