Human Rights in the Workplace

Employees with mental illness face a double battle

There's a terrific article in the Financial Post this morning entitled "Battle of the Brain" which discusses the double battle that employees with mental illness often face: battling against their illness while facing severe societal (and workplace) stigma in relation to that illness. 

The article notes that "it can often take [an employee] as long as five years after an episode of mental illness to get the right diagnosis, find the right medication and get back on track."  The article goes on to discuss the various stigmas faced by employees in the workplace, citing real-life examples, and the new Mental Health Commission of Canada that is tackling the issue.  Important mention is also made of the fact that the accommodation of employees with mental illness is not necessarily as onerous as some employers initially think it will be. 

RCMP seeking review of Tribunal decision in cadet case

Not surprisingly, as noted by this Canadian Press news release, the RCMP have filed an application for judicial review of the recent decision by the Canadian Human Rights Tribunal that found the RCMP liable for discrimination and harassment against a cadet.  I discussed the Tribunal's decision, particularly the significant damage award, here.

Searching for an accommodated position: what's the process?

Last month, I was fortunate to have been asked to speak at the Current Issues in Disability Management Conference put on by the Rehabilitation Return to Work Partnership in Winnipeg.  It was a terrific opportunity to present to a group of people who are very knowledgeable in the area of accommodating disability in the workplace.

Following my presentation, I happened to get asked virtually the same question by two of the conference's attendees and so I decided that it would be worth a blog post to cover what I was asked.  Essentially it was this: 

when exploring how to accommodate a disabled employee, what process is an employer required to follow?

More particularly, discussion occurred around whether an employer just has to look at existing positions in its workplace in order to determine what might be available for an employee requiring accommodation due to disability or whether the employer has to go beyond that.

The general answer to this question flows from an Ontario Labour Arbitration case known as Ottawa-Carleton District School Board v. O.S.S.T.F..  The decision endorses a passage from an article by Professor Michael Lynk entitled Disability and the Duty to Accommodate: An Arbitrator's Perspective.  In that article, Prof. Lynk states that the duty to accommodate disability requires an employer to go beyond simply looking at whether an employee can be accommodated in a position already in existence in the workplace.  In particular, Prof. Lynk states (as noted in the Ottawa-Carleton decision):

"....the law obliges an employer to determine whether existing positions can be adjusted, adapted or modified, and whether there are other positions in the workplace that might be appropriate. This responsibility entails an assessment of all reasonable alternatives. To prove that its accommodation efforts were serious and conscientious, an employer is required to engage in a four-step process, which involves (1) determining if the employee can perform his or her existing job as it is; (2) if not, determining if he or she can perform his or her existing job in a modified or “re-bundled” form; (3) if not, determin­ing if he or she can perform another job in its existing form; and (4) if not, determining if her or she can perform another job in a modified or re-bundled form."

In keeping with this decision, I advise employers to do the following when assessing their ability to accommodate a disabled employee:

1. Ensure they have up-to-date job descriptions which accurately detail the duties of all positions in the workplace.  Operating on outdated job descriptions can impact an employer's ability to find accommodation and, ultimately, impair the ability to argue it has satisfied its duty to accommodate;
2. Review the employee's current job and ask:
   • What are the essential duties and non-essential duties of the current job?
   • Of the non-essential duties identified, can any of these duties be removed or reassigned?
   • Of the essential duties identified, what can the employee do/not do?
   •   What can be done to assist the employee perform the current job?:
     • can modifications be made to the way the job is done in its existing form?
     • can the employee be provided with particular equipment or support to enable her to perform the job?
     • can modifications be made to the work schedule or workload?
     • can the job be rebundled (reassembled to create a productive job)?
3. If it is determined that the employee cannot perform the essential or core duties of their current job even with accommodation, identify all other job possibilities in the workplace and ask:
   • What are the essential duties and non-essential duties of the jobs?
   • Of the non-essential duties identified, can any of these duties be removed or reassigned?
   • Of the essential duties identified, what can the employee do and/or what are they unable to do due to the restrictions of their disability?
   • Can the employee perform any of these jobs in their existing form?
   • If not, what can be done to enable the employee to perform any of the possible jobs in a modified or rebundled form? (see also questions under 2 above)

It is critical that, in doing this review of jobs, an employer adequately documents all steps taken in assessing whether it can or cannot accommodate a disabled employee, including the ultimate conclusion reached and the basis for it.  By following the process noted above and creating a proper paper trail, an employer will place itself in the best position possible to demonstrate it has legally fulfiled its duty to accommodate.

Age-based comments have negative impact on workplace

Aging Workforce News reports on research out of the US that shows ageist language in the workplace can have a dramatic negative impact on the health and well-being of older workers.   Given the demographic shift that workplaces are beginning to experience, employers who will need to consider retaining the more 'senior members' of their workplaces well past the usual retirement age may want to keep this research in mind.  Putting a quick halt to the use of age-based discriminatory language in the workplace will assist in ensuring a positive work environment that could help encourage older workers to stay. 

Human Rights Campaign releases workplace guide on transgender inclusion

As noted at HRC Back Story, the Human Rights Campaign (the largest gay, lesbian, bisexual and transgender civil rights organization in the United States) has released the second edition of its report entitled Transgender Inclusion in the Workplace.  From the Human Right's Campaign's website comes a description of the report:

"Transgender Inclusion in the Workplace" provides human resource and other employment professionals with best practices for transgender workplace inclusion—from discrimination and benefits policies to internal practices that reflect how gender is expressed and integrated in the workplace—as well as the state of legal issues encompassing gender identity in employment situations. The guide also covers topics such as appropriate terminology with which to discuss gender identity and expression, the creation of policies that protect transgender workers from discrimination, and the expansion of diversity programs to include gender identity and expression."

Although a US-based publication, the report may be useful for Canadian employers as I have yet to see something similar published here. 

Check out Blawg Review #157

Michael Fitzgibbon over at his blog Thoughts from a Management Lawyer put together Blawg Review #157 today, a compendium of interesting posts from labour and employment law blogs in the US and Canada.  I always marvel at bloggers who take on the task of doing a Blawg Review and I always learn something new or discover a blog I had never encountered before.  Michael's post doesn't disappoint so I recommend you have a look.  In his review, he also kindly referenced my recent commentary on the US Senate's adoption of a ban on genetic discrimination (although I have to gently point out he noted my last name to be Searle instead of Seale -- but with the level of detail he had to digest and set out in his post it's no wonder an extra little letter slipped in!).

US Senate says 'no' to genetic discrimination

The US senate made it illegal today for employers to request or use a person's genetic information for the purpose of hirings, promotions, assignments or firings.  The hope is that this move will serve to eliminate the fear that has raged for a number of years now in the States that employers could use a person's genetic history to discriminate against them in the workplace.  I've been watching this issue with great interest for years to see whether the bill that had been proposed would ever become law.  It seemed very "sci-fi" and disturbing to think that you could suffer discrimination on the basis of a disability that might be present in your genes but had not yet manifested itself in present-day form.  Never mind the fact that no one would be safe from this kind of discrimination -- can you safely say you have 'perfect genes'?  I know I can't.   

The potential for the results of genetic testing to be used for discriminatory purposes in the workplace hasn't, as far as I'm aware, really been discussed much in Canada.  Who knows what, if any impact, this recent move by the US might have here.

Turfed RCMP cadet succeeds in discrimination complaint

As reported by a number of Canadian news outlets last week, the beleaguered RCMP are facing yet another enormous damage award after the Canadian Human Rights Tribunal concluded a former cadet had been subjected to discrimination and harassment during training.

Ali Tahmourpour is a Muslim Canadian who was born in Iran.  He commenced training with the RCMP in July 1999 and was dropped from the program four months later before his training was completed.  Mr. Tahmourpour alleged in his complaint that during training he faced systemic discrimination and incidents of harassment on the basis of race, religion and national or ethnic origin and he further alleged that his training contract was terminated for discriminatory reasons.  In particular, he contended that:

• he was subjected to discriminatory remarks, hostile treatment and verbal abuse by instructors at the training academy;
• his performance at the academy was improperly evaluated;
• his training contract was terminated based on false pretences;
• he was improperly designated as being ineligible for re-enrolment in the training program.

While the evidence that came out at the hearing did raise some questions about Mr. Tahmourpour's ultimate ability to do police work (concerns were raised as to his communication skills, judgment and ability to solve problems), the adjudicator concluded that his performance was more likely than not affected by discrimination and harassment.  She stated:

"...in a training environment where derogatory comments about race are condoned and directed at people like Mr. Tahmourpour, where evaluations are inaccurate and improper, and where instructors take pride in being 'politically incorrect', it is difficult for someone like Mr. Tahmourpour to develop and demonstrate his skills....I find it reasonable to infer that such conditions erode one's confidence and ability to perform well."

Further, the adjudicator concluded that the recommendation and decision to terminate Mr. Tahmourpour's contract were based on a discriminatory assessments of his skills.  Ultimately, as a result of her findings the adjudicator determined that Mr. Tahmourpour ought to be offered an opportunity to re-enrol in the next available RCMP cadet training program.

Factually, this isn't a terribly complicated case.   The damage award, however, is and provides yet another example of the escalating risk employers face if they permit discrimination and harassment to occur in the workplace.  Remember that Mr. Tahmourpour was removed from the training program in 1999 and so the damage award reflects a 9 year time span [although he filed his complaint in 2001, as a result of various appeals Mr. Tahmourpour's complaint was not actually heard by the Tribunal until late 2007).  Here, in addition to requiring the RCMP to permit the complainant to re-take his training, the adjudicator made the following orders:

• the RCMP are to pay the complainant:
  • compensation for salary and benefits he lost for the first 2 years plus 12 weeks of work as an RCMP officer after graduating from training, discounted by 8% (to reflect the attrition rate of cadets and regular members of the Force);
  • the difference between the average full-time industrial wage in Canada for persons his age, and the salary that he would have earned as an RCMP officer until such time as the complainant accepts or rejects an offer of re-enrolment in the training program;
  • the average amount of overtime paid to other constables who graduated from training in 1999, unless otherwise agreed upon by the parties, discounted by 8%;
  • compensation (incorporated in the above) that reflects a promotion to Corporal after 7 years (the average time it took a Constable to be promoted to that rank);
  • $9,000 for pain and suffering;
  • $12,000 in special compensation for the wilful and reckless discriminatory remarks to and harassment of the complainant by a particular Corporal at the training depot;
  • $9,500 for expenses incurred;
  • compensation for legal expenses incurred;
  • interest on all compensation awarded.
• the RCMP are also required to:
  • establish a policy and set of procedures to enable cadets to address harassment and discrimination at the training depot;
  • deliver mandatory diversity/cultural sensitivity training to cadets and all personnel at the training depot;
  • establish an advisory committee or multi-culturalism officer to make recommendations to the commanding officer at the depot with regard to the prevention of discrimination and promotion of respect and tolerance for diversity.

While there are conflicting media reports, it would appear that Mr. Tahmourpour's damage award may add up to the $500,000 mark and the addition of legal fees will take the total amount payable by the RCMP to upwards of $1 million.

Being a UFC fan (for those unaware that refers to the Ultimate Fighting Championship a mixed martial arts sport), I know that the fighters always want to win by submission or knock-out because otherwise they leave the fight in the hands of the judges and lose control of the outcome.  Well, that goes double for employers who fail to take control of discriminatory and harassing conduct in their workplaces.  Leave your workplace in the hands of a human rights adjudicator and you could be feeling a bit pummelled, like I'm sure the RCMP are feeling right now.

Further reading:

Ali Tahmourpour v. RCMP, 2008 CHRT 10 (65 pages)

"RCMP faces $1M payout on discrimination case", CBC

"Ex-RCMP cadet wins discrimination case", Globe and Mail

Tribunal topples company's attendance management program

A recent decision of the British Columbia Human Rights Tribunal (C.A.W., Local 111 v. Coast Mountain Bus Co. (No. 9)) has concluded that an Attendance Management Program ("AMP") operated by the Coast Mountain Bus Company (formerly BC Transit) was structured and applied in such a way that it discriminated against employees of the company who had chronic or recurring disabilities.

The Facts - In Brief

The AMP was adopted by the company in order to address concerns about high levels of absenteeism among its employees, particularly its transit operators.  The program involved monitoring the absenteeism of all employees and identifying those with higher than average levels of absenteeism.  The employees identified would be initiated into the program and moved through three levels.  At Level 3, attendance parameters would be imposed on the employee setting out a specified number of days and number of incidents of absenteeism per year over a period of time.  If the employee failed to meet those parameters, the company would then proceed to consider whether the employee should be terminated.

The Problems with the Program

The 150 page decision detailed a number of ways in which the AMP failed to appropriately acknowledge the disabilities of employees:

1. there was a lack of communication and coordination between the two departments set up by the company to administer the AMP including an overly rigid adherence to rules in the collective agreement relating to the confidentiality of employee medical information.  This resulted in decision-makers not having full medical information necessary to determine whether an employee's absenteeism was disability-related or to determine whether accommodation was appropriate before an employee was placed into the AMP or at the early stages of the AMP;
2. the company chose to process employees with attendance concerns through the AMP first and determine whether or if it could accommodate the employee after-the-fact.  When an employee reached Level 3, the average absenteeism rate of all other transit operators was used to establish the attendance parameters the employee had to meet.  There was no assessment conducted regarding what the parameters ought to be in light of an individual transit operator's disability;
3. when the company did consider whether an employee's disability-related absenteeism could be accommodated, it took too narrow a view of what its duty to accommodate entailed, focusing only on whether the employee could be moved into another job and, particularly, a job that had the potential to improve the employee's attendance.  At no time did the company consider whether a transit operator could be accommodated in his or her own position by permitting a relaxation of the attendance rules;
4. the company counted partial days that an employee was not able to work while on a rehabilitation assignment or a gradual return-to-work as an absence that factored into the assessment of whether the employee was brought into or advanced within the AMP.  This was found to be a discriminatory penalization of employees who were seeking accommodation.

Rejection of the Company's Defence of the Program

The Tribunal rejected the company's argument that the structure of the AMP and the manner in which it implemented the program was a bona fide occupational requirement.  Specifically, the Tribunal concluded that the company failed to establish that it was not possible to accommodate employees with chronic or recurring disabilities outside of or within the AMP short of undue hardship.  As the AMP was set up in such a way that accommodation of an employee was not considered, if at all, until after the employee had exceeded the average attendance standard imposed upon him or her, there being no accommodation within the standard itself, the Tribunal concluded that this was contrary to legal principles established by the Supreme Court of Canada.  Moreover, although the company led evidence of the substantial cost of employee absenteeism to its overall operations, it failed to lead evidence specifically showing that accommodating employees with chronic or recurring disabilities either before they were entered into the AMP or at an early stage of the program would create an undue hardship financially or otherwise.

In the final outcome, among other remedies, the Tribunal ordered the company to cease applying the AMP to transit operators whose attendance was affected by chronic or recurring disabilities.

What Does This Mean?

In my view, this decision represents the most comprehensive explanation to date as to how the duty to accommodate factors into each aspect of a system created to manage employee attendance.  Although the Tribunal recognized employers have a significant interest in implementing ways to manage costs, both financial and otherwise, associated with excessive absenteeism of their employees, it stressed that employers cannot pursue this interest at the expense of the rights of disabled persons under human rights legislation.  This decision spells out that it will be considered discrimination to process employees with disabilities that impact their attendance into an attendance management program without first determining whether they require accommodation and, if they do, what the accommodation options are.

Employers who currently have in place an attendance management program would be wise to review that program and ensure that:

• employees are not automatically placed into the program simply because they have exceeded some particular standard of attendance.  The underlying cause of the absenteeism must be examined first;
• in examining the underlying cause of an employee's absenteeism and before an employee is brought into the program appropriate medical information is available so that decision-makers may properly determine if an employee's absences might be disability-related and assess accommodation options if they are;
• in assessing accommodation options for employees with disability-related absences, the assessment extends to looking at attendance expectations in addition to whether their job requires modification.  If, as a result of disability, an employee will not be able to maintain regular attendance, employers must consider whether they can accommodate the rate of absenteeism that may be associated with the particular employee's disability.  In other words, can the employer modify what it considers acceptable attendance by, in effect, creating an attendance standard specific to the particular employee without incurring undue hardship?
• employees are not placed into the the program if the employer can accept (and therefore accommodate) the employee-specific attendance standard;
• partial days that an employee is not able to work while they are on a rehabilitation or gradual return-to-work assignment are not treated as an absence;
• anyone in the company who is involved in decision-making relating to attendance management receives appropriate training to understand what the duty to accommodate requires of them.

While attendance management programs, in principle, survived the BC Tribunal's scrutiny, serious questions have now been raised about whether employers will realistically be able to apply such programs to employees with recurrent or chronic disabilities. 

See also:"Rights tribunal puts the brakes to bus-driver attendance check" - The Province

Liability for sexual harassment can extend to behaviour by non-employees

Earlier this week I read a post over at Wise Law Blog by Annie Noa Kenet titled "UK Employers to Protect Against 3rd Party Sexual Harassment".  While I doubt it was her intention, after reading Ms. Kenet's post I was left with the impression that in making the observation that the UK was now taking specific steps to ensure that employers protected employees from sexual harassment by customers and clients she was suggesting that employers in Canada were not so obligated.  Although there isn't a flood of decisions to refer to in this area, courts and tribunals in Canada have considered claims of sexual harassment by non-employees and, in certain factual circumstances, have held employers liable.

Probably the most notable case is the 1993 decision of the Saskatchewan Court of Queen's Bench in Nixon v. Greensides (could not locate a public link).  In that case, the complainant was a waitress who worked at a bar that was attached to a restaurant.  The owner of the bar sublet the restaurant to a man by the name of Greg Duncalfe.  Duncalfe would often frequent the bar during the evenings and while doing so would sexually harass the female wait staff by grabbing and touching them.  The complainant complained to her employer, Stuart Greensides.  Although Greensides agreed to speak to Duncalfe about his behaviour, and apparently did so, that did not occur until almost two weeks after Greensides learned about the harassment.  Moreover, Duncalfe continued to harass the complainant and other female waitresses at the bar to the point that some of the wait staff went to the police and criminal charges were laid.  The Saskatchewan Board of Inquiry found Greensides liable for failing to effectively deal with the harassment.  Greensides then applied for judicial review of the decision to the Court of Queen's Bench.  In upholding the Board's decision regarding the employer's liability, the court made the following remarks:

"In this case, it is conceded that Duncalfe's conduct in respect of Nixon constituted sexual harassment.  The duty imposed on Greensides as the employer of Nixon is to take action to prevent further incidents of harassment once knowledge of the alleged harassment came to his attention."

In examining Greenside's response to the complaint of harassment, the court stated:

"...there is evidence to support the Board's finding that Greensides did not take action as soon as he became aware of the complaints from Nixon and some of his other female employees.  This finding is critical to liability being imposed on Greensides and is supported by the evidence.

....there was evidence which tended to show that the harassment did not end.  The Board could conclude from this evidence that Greensides' action was ineffective in solving the problem and that in the circumstances stronger action in the nature suggested by the Board was required."

The upshot of Nixon and the tribunal decisions that have followed it is that employers in Canada do have a duty to take prompt and effective corrective steps when an employee complains of, or the employer otherwise becomes aware of, sexual harassment by third parties who enter into the workplace.

See also:

Ontario Human Rights Commission Policy on Sexual Harassment : "Liability on the part of an organization for harassment of its employees by non-employees, such as customers, will depend on the facts of a particular situation, including the employer's knowledge of and control over the situation, and what corrective measures might be available."