Chapter 5:   Human Rights Issues During Employment

 

Prohibitions on discrimination in employment in HRC apply not only to hiring, but to entire duration of employment relationship

 

Supplementary Reading:  Just What Ringma Said

 

Reform M.P.  tells reporter that an Er should he permitted to send gay and visible minority employees to the back of the store if its customers are homophobic or racist …   human rights law would prevent this …  shows conflict between ‘market’ approach and human rights approach

 

Chapter begins with Meiorin (87) case again – the case involving a test for firefighters in B.C.  that discriminates indirectly against women, who are less able to satisfy the test -  Meiorin failed the  fitness test and is fired … files a human rights complaint

 

The SCC created a test Ers must satisfy to justify a rule or standard that discrimates:

 

1.              Must be a rational connection between the purpose for which standard introduced and requirements of the job [Purpose of test in Meiorin case was to test cardio-aerobic fitness, which is related to job requirements]

 

2.              Standard must have been adopted in a honest and good faith belief that it is necessary for performance of the job  [this test met too in Meiorin]

 

3.              Standard must be reasonably necessary for performance of job, and no standard is reasonably necessary unless impossible to accommodate employees who are being discriminated against without undue hardship

 

            Er in Meiorin failed this test ..  didn’t show that running 2.5 KM in 11         minutes was necessary to be a good firefighter … the standard itself was      based on a male’s performance, so standard was itself discriminatory

 

Most cases come down to step 3, and the duty to accommodate

 

Meiorin was less important in Ontario because the Ontario HRC already had extensive provisions for accommodation to the point of undue hardship for both direct and indirect discrimination

 

Duty to Accommodate

 

Applies to Ers, EEs, and unions (if there is one)

 

Duty of Employee:  must provide information necessary to allow Er to assess what type of accommodation is necessary (usually medical info) … . and must accept reasonable accommodation

Salim Al-Saida v. Brio Beverage (96):   ee fails to give er medical info it requested about extent of injuries so that Er can determine what accommodation necessary …. So Er fires him:    Tribunal:  Er did not violate HRC here, since ee failed to provide relevant information as requested … Ee fails in his duty to fasciliate accommodation

 

Duty of Unions: 

 

            Unions must participate in discussions about accommodation .. and must be             prepared to waive collective agreement terms if necessary to accommodate ee

 

Bubb-Clarke v. TTC (90):   ee with sleeping disorder can’t drive machine, his normal job … Er proposes accommodating him in Janitor job …  but this would require allowing him to bring his ‘seniority’ from old job, which would allow him to jump ahead of existing janitors on the janitor seniority list …   Union says this would cause it (and other janitors) undue hardship.   Tribunal:  Union fails its duty to accommodate by refusing to waive collective agreement provision that would not allow ee to bring forward his seniority

 

What Constitutes “Undue Hardship”?

 

Recall when Duty to Accommodate arises under OHRC:  s. 11(2) [indirect discrimination];  s. 17(2)  [disability];  s. 24(2) [bona fide occupational requirement with respect to age, sex, record of offence, and marital status]

 

In each case, statute tells us what factors must be considered in assessing UH (see p. 91):

 

Costs, including outside sources of funding:  but very high threshold …   tribunal has found that the cost of accommodation is ‘undue’ hardship only if ‘so substantial that they would alter essential nature of the business or so significant they would substantially affect its viability … 

 

Health & Safety Requirements:  if proposed accommodation would pose safety risk to public or coworkers, then may be ‘undue hardship’.   But if risk is only to ee, then accommodation may require allowing ee to assume that risk

 

 

Discussion of Accommodation in Particular Situations

 

1.      Disability  (s. 17)

 

            Er must consider changing physical set up of workplace (build ramp, elevator,         etc) …     to change way work is performed and scheduled (provide devices to aid   lifting, allow ees to sit rather than stand, provide aids for hearing impaired, etc) …  allow more breaks

 

Essex Police Services Board (p. 93)

EE with back disability requests an accommodated job ..  two jobs he could do:  (1)  a new job comprised of light tasks taken from a variety of existing job classifications; or (2) an existing job presently occupied by someone

 

Decision: 

 

1. Duty to Acc.  requires Er to create a new ‘light’ job from light duties in existing jobs, provided this would not cause UH ..   light duties must be ‘real’ duties that need doing ..  Er doesn’t need to let worker hang around and do nothing useful … here, it was possible to create a day’s work by compiling light tasks together

 

2.              Er may have to bump someone from a job to create an opening for someone who needs accommodation …  but only as  a last option, and it may be UH if this would cause someone to be laid-off, for example

 

 Duty to Accommodate is an Ongoing Duty.  Er must constantly assess whether disabled ee could perform any existing job that arises: 

 

 OHRC v. Falconbridge (95)

 

When clerical vacancies arise, Er fails to consider disabled ee who is off on leave for the jobs and awards the jobs to other people …  Tribunal: Er breached HRC by not assessing whether disabled ee could have performed the clerical jobs, with or without accommodation

 

 

Accommodating Drug and Alcohol Addiction

 

Recall that drug and alcohol addiction is a disability.  So what can Er do it ee shows up to work drunk or on drugs

 

            If ee not an alcoholic or drug addict .. then HRC doesn’t apply to that ee …  but       does apply if person is an addict

 

Chopra v. Syncrude (98)

long service ee starts showing up to work drunk …he’s an alcoholic … Er  tells him to enter rehab program .. he goes, but is kicked out … enters another program, and returns to work, but then shows up to work drunk again .. Er fires him

 

Court:   Er satisfied its DA here …   ee breached his contract 4 times in short period .. Er accommodated him by giving him leave to get help, but ee failed …    (so Er must usually allow ee to enter rehab program, but ee must participate meaningfully in those programs, or he may fail in his own duty to participate in reasonable acc)

Drug & Alcohol Testing   (p. 104-05)

 

            When can an Er use random drug & alchol testing?

 

            Entrop  v. Imperial Oil        

            Alcoholic ee who hadn’t had a drink in 7 years reassigned from a safety sensitive    job after Er introduced a new drug and alcohol testing policy ..  ee challenges the      policy as discriminatory

 

Court:   random drug testing policies are illegal (discriminatory) because they do not actually measure impairment and are intrusive (have to pee in bottle) …   random alcohol testing for people in safety sensitive jobs is ok if is not possible to monitor the employees in less intrusive ways (i.e. if there is no supervisor watching the ees at all times) .. because alcohol testing does measure impairment

 

            Selective (not random) testing may be alright if there are reasonable grounds for       Er to believe the person is impaired (they look impaired, etc)

 

            But even when testing is lawful … Er must still be careful in how it responds to a    failed test … it must accommodate an alcoholic or drug addicted ee

 

Disability and “Innocent Absenteeism”

 

A disabled ee may miss a lot of work …  at what point does absenteeism become ‘undue hardship’ for ER?

 

Hydro Quebec (supplemental reading)

 

Ee missed 960 days over 7 year period ..  medical letter claimed that she is unlikely to be able to return for foreseeable future … Er fires her .. she files HRC complaint, alleging that it is not “impossible” [the word used in Meiorin]  to accommodate her … Er could simply keep her employed (recall that they are not paying her while she is off work)

 

SCC:  Meiorin did not say that Er can’t fire someone unless it is ‘impossible’ to accommodate … it just said that Er must accommodate to point of UH … in case of absenteeism due to disability, UH is reached when:  (1) ee has missed excessive amount of days in the past and (2) medical evidence is that she will not return in the foreseeable future

 

            That is what we have here … so it would cause UH for Er to have to keep    ee employed longer …

 

 

 

 

2.   Religious Belief

 

Er may be required to alter dress codes and work shifts to accommodate ee religion …   sometimes doing so will cause UH, sometimes it won’t … depends        on facts in each case

 

Central Alberta Dairy Pool (100)

 

            Ee wants Easter Monday off work for religious reason .. Er says need everyone       working that day so refused request … when ee doesn’t report, Er fires him

 

            SCC:  Er failed to show it couldn’t accommodate ee’s request to have the day off                without suffering UH …  no evidence of hardship to Er

 

But  in Ford Motor Co. (101), Er successfully argues that allowing ees to have Friday nights off for religious reasons would cause Er UH …  main reasons were that Er had big problem getting people to work Friday nights and allowing ees to have Friday nights off would require waiving collective agreement seniority provisions

 

 

3.      Accommodating Pregnant, Breast-Feeding Women

 

Since pregnancy and breast-feeding are treated as ‘sex’ under HRC, Er cannot discriminate against women on these grounds

 

So Er may need to allow women time off to breast-feed, and provide a place for this to occur

 

And may need to accommodate job if a pregnant woman can’t do all requirements of job

 

            Sidhu v. Broadway Galleries (103)

 

            Dr of pregnant ee says she can’t lift more than 40 pounds ..   Er violated HRC by    simply cutting her hours and not considering whether ee could be accommodated     in a way that would allow her to work her usual hours without lifting 40 pounds        or more

 

 

Harassment

 

HRC prohibits harassment at work on prohibited grounds only (s. 5(2) and 7(2)) … harassment on non-prohibited grounds not covered by HRC

 

“Harassment’ is defined in s. 10 of HRC.   Requires a ‘course of conduct’ (unless conduct is very offensive, usually more than one incident required) and conduct that is ‘unwelcome’ …   tribunal decides if conduct is unwelcome by considering whether: (1) the harasser knew it was unwelcome (because they were told this), or (2) any reasonable person ought to have known the conduct would be unwelcome

 

            The workplace environment can be relevant in deciding if conduct is harassment      …  a comment in one workplace may not be harassment in another workplace

 

 

Material on p. 109-110 about the complaint process under HRC is now largely obsolete because model was changed .. so don’t worry about that

 

Remedial Powers of HR Tribunals (p. 111)

 

Section 45.2 of OHRC defines remedial powers of Tribunal … it is very broad …

 

Tribunal can order:

 

Compensation

 

(1)   Specific Damages: compensation for money lost as a result of discrimination (i.e. lost wages)

 

 

(2)   General Damages:  extra compensation for damage to victims self-esteem and dignity

 

(3)   Damages for Mental Anguish:  extra money when discrimination was willful (on purpose)  and deserving of extra punishment

 

Non-monetary damages

 

            On top of the compensation powers, Tribunal has a general overriding power to to   order anyone to almost anything to ensure that problem is fixed going forward         (i.e. build a ramp …  introduce a new policy that complies with Code …             apologize, etc.)