Human Rights in the Workplace

Twitter Talk column launch

As I have mentioned here before, in addition to blogging I am also on Twitter.  The stuff I often talk about on Twitter is related to the work I do but isn't necessarily worthy of a full blog post.  On the other hand, I also mention my blog posts on Twitter.  This got me thinking the other day that the people who follow me on Twitter are getting "more for their money" than my blog readers (many of whom are not among my Twitter followers).  And so, dear readers, to keep you in the loop, I've decided to borrow a page from Dan Michaluk's All About Information Blog and create a regular column devoted to updating you on what I'm talking about on Twitter.  Lacking creativity today (heavy sigh), I'm calling this column "Twitter Talk".

Here's a sampling from the past few weeks (for those of who are uninitiated to Twitter lingo, RT is short form for "retweet" meaning that I am repeating or quoting someone else's original post or tweet.  Also to note, if you click on the hyperlink mentioned in the tweets, you will be taken to the original article I was referencing):

Choosing your words carefully can truly make a difference (from @Disaboom) http://is.gd/IfXz #disability

Reading - RT @nationalpost: Kevin Libin: Alberta opts for hillbilly human rights http://tinyurl.com/qr472z

RT @KulpreetSingh: I would rather s/one BLUNTLY ask me about my faith/identity, rather than NOT ask me, hold on to misconcep'ns/stereotypes

RT @CanadianHRLaw: RT @EmploymentLaw: Assessing witness credibility in workplace investigations http://tinyurl.com/r29dnq

Women's careers still impacted by assumptions made, whether they have children...or not. http://chilp.it/?06ec4c

 

Happy reading!

Having a process AND following it key to meeting duty to accommodate

In the course I teach for the Manitoba Human Rights Commission on "The Duty to Accommodate in the Workplace", I spend a good chunk of time talking about how important it is for employers to implement a policy/process in their workplaces establishing how they will respond to requests for accommodation by employees.  In particular, I talk about how critical it is for employers to be able to demonstrate, at the end of the day, that they have thoroughly examined and considered all of the possible ways that they can provide accommodation for an employee before they even think about jumping on the 'sorry we can't do this' band wagon.  In addition, I stress how critical it is for employers to understand that their duty to accommodate is separate and distinct from any determinations made about the employee by a third party such as an insurance provider.

The fact is, if you do not have a process in place to reasonably assess accommodation requests, you will not successfully defend against a human rights complaint alleging a failure of the duty to accommodate.  Same goes if you have a process in place and then choose, for whatever reason, not to follow it.  Ditto if you choose to simply follow on the coat tails of a third party payer to decide how you should go about accommodating your employee.  Unfortunately, there are still a lot of employers out there who are not getting these messages.  Case in point, Jodoin v. City of Calgary, a November 2008 decision of the Human Rights Panel of Alberta. 

The facts in brief

Mr. Jodoin began working for the City of Calgary in 1999.  In September 2002, while he was working in the waste and recycling department as a driver/labourer, he injured his lower back.  He subsequently made a successful claim for workers' compensation benefits.  From September 2002 to February 2003, Mr. Jodoin underwent a number of medical tests and was determined by his physician to be unfit for work during this time.  In early February 2003, he underwent spinal decompression surgery.  It wasn't until June 2003 that Mr. Jodoin's doctor recommended a gradual return-to-work.  His return was not successful, though, as the job he was placed in was too strenuous.  He went off work again to undergo further testing and obtain an accurate assessment of the impact of his disability. 

In March 2004, it was determined that Mr. Jodoin's condition was such that he would only be able to do sedentary work in the future.  One of Mr. Jodoin's specialists sent the City a list of Mr. Jodoin's work restrictions and asked for the City to determine whether it could accommodate him in a permanently modified or other suitable alternate position.

The City began using the work restrictions identified by Mr. Jodoin's doctor in order to attempt to find long term accommodation for him.  In the meantime, the Worker's Compensation Board, which was also involved, determined that it was not satisfied that Mr. Jodoin could only do sedentary work and, instead, came to the conclusion that he ought to be able to perform work that simply did not require heavy lifting.  As a result of the WCB re-assessment of Mr. Jodoin's work abilities, the City changed his restrictions from sedentary to medium-type work.  The City sent out some e-mails to supervisors in Mr. Jodoin's department and to human resources and return-to-work coordinators requesting accommodation for him.  No potential jobs were uncovered.

WCB subsequently determined that Mr. Jodoin was not participating sufficiently in their job search program and, as a result, terminated his re-employment assistance benefits.  The City then sent him a letter indicating that his benefits had been terminated by WCB for failing to cooperate in the rehabilitative process.   The City further advised Mr. Jodoin that they were prepared to grant him an unpaid leave of absence for 30 days to rectify the situation with WCB.  Mr. Jodoin was instructed to complete a leave of absence form and return it within 7 days.  The City's letter went on to say that if Mr. Jodoin failed to return the form or be reinstated by WCB his employment would be terminated.

Although Mr. Jodoin asserted that he cooperated to the best of his abilities with WCB and he wrote a letter to the City setting this out, he received no response.  Mr. Jodoin did not sign the leave of absence form, believing that he was being "pushed out the door because he was sick."  The City subsequently wrote to Mr. Jodoin in July of 2004 advising him that they considered him to have "voluntarily resigned."

Decision

The Alberta Human Rights Panel determined that Mr. Jodoin did have a physical disability as defined by the Alberta human rights legislation and that the City was well aware of his disability. 

The City accepted that it had a duty to accommodate Mr. Jodoin but argued that it had provided that accommodation by making available to him four "safety nets" (Workers' Compensation Benefits, Long Term Disability, Supplementation of Compensation under the collective agreement, and the possibility of a Leave of Absence).  The Panel rejected this argument, pointing out that the availability of these types of benefits to employees did not necessarily bear on whether the employer had met its duty to accommodate. 

Contrary to the employer's contention, the Panel concluded that the City failed to make reasonable efforts to accommodate their employee for the following reasons:

1. Without consulting with Mr. Jodoin's doctors, the City accepted the WCB's assessment of Mr. Jodoin's work abilities.  The WCB assessment that Mr. Jodoin could perform work at a 'medium level' was diametrically opposed to the medical assessment that he could only perform sedentary work.  The Panel found that by accepting the WCB assessment and modifying Mr. Jodoin's work restrictions to reflect this acceptance, the City would have set him up for failure in any position that they might have found for him;
2. The City's search for permanent modified work for Mr. Jodoin was "limited and ineffective" because:

• the City sent e-mails on two occasions requesting possible accommodations to Mr. Jodoin's     current     department (Waste & Recycling), even though the City's representative indicated she seriously doubted his ability to return to work in that department;  
• with one exception, no record was kept of the positions that the City had actually considered and ultimately rejected as possible accommodations for Mr. Jodoin;
• the City's policy and procedural guidelines indicated that union involvement was required anytime an accommodation might engage the collective agreement.  Although the collective agreement was arguably engaged here, the union had never been approached by the employer.  While the City argued that Mr. Jodoin indicated he had no use for the union, the Panel pointed out that this had little relevance to the employer's responsibility to involve the union pursuant to its own process;
• the City's procedural guidelines mandated an open communication process.  However, the City was unable to show that it maintained regular contact or any semblance of open communication with Mr. Jodoin;
• the City's guidelines provided two checklists to assist in the accommodation process but the City's representative stated she followed the process "in her head" rather than either of the checklists as it would be too time consuming to complete the checklists on all of her files;
• all possible accommodations had not been pursued.  The City could not show that their search for modified work for Mr. Jodoin had been extended to City departments outside of Mr. Jodoin's union or corporate wide.

3.    Even though Mr. Jodoin was medically capable of working in a sedentary position, he was never given the option by the City of returning to work when WCB suspended his benefits.  Instead, he was offered a Leave of Absence to enable him to appeal that decision.  The Panel also pointed out that this "option" was given to Mr. Jodoin with no explanation and without advising him that they were not searching for a sedentary position for him;

4.    At no time did the City actually inform Mr. Jodoin that they could not find appropriate accommodation for his disability.  Instead, they threatened to terminate him if his WCB benefits were not reinstated of if he did not sign the Leave of Absence form.  The Panel stressed that because this was such a complicated employment situation, the City had a responsibility to meet with Mr. Jodoin and explain his options and any consequences associated with not signing the form, something it failed to do;

Finally, the Panel concluded that the CIty provided no evidence that it would have suffered undue hardship by continuing to employ Mr. Jodoin in a sedentary position.

Remedy

Finding that the City of Calgary failed to meet its duty to accommodate Mr. Jodoin, the Panel ordered that the City pay to him $5,000.00 in general damages and lost wages in the amount of $17,307.69 (less statutory deductions) plus interest.

What to take from this case:

• I'll end this post the same way I started it -- having a process and following it is absolutely essential if you, as an employer, hope to avoid liability in relation to the duty to accommodate; 
• Follow that process in each and every instance you are faced with needing to accommodate the human rights-protected needs of your employees; and
• Complete your process.  Do not stop looking for accommodation if WCB or another insurer or third party payer decides to terminate any benefits your employee might have been receiving relating to the accommodation need.  An employer's duty to accommodate operates independently and you'll be the one on the hook, not the insurer, if you choose to short-circuit that policy without appropriate justification.

  

 

Ontario Human Rights Commission updates Policy on Discrimination due to Pregnancy & Breastfeeding

The Ontario Human Rights Commission has released an update of its Policy on Discrimination Because of Pregnancy and Breastfeeding.  The update incorporates, among other things, new legal cases relating to pregnancy and pregnancy-related discrimination in employment, services and housing.  You'll see from the Table of Contents, that the Policy covers a lot of ground, including:

• Code Protections for Pregnancy and Breastfeeding
• Pregnancy and Intersecting Grounds under the Code (describes how a woman may experience discrimination due to pregnancy differently based on other aspects of her identity such as her age or ethnicity);
• Pregnancy and Family Status
• Pregnancy and Domestic Abuse
• Examples of Discrimination based on pregnancy and breastfeeding such as:
  • discrimination based on negative attitudes and stereotypes;
  • subtle discrimination;
  • harassment or poisoned environments;
  • systemic discrimination;
  • failure to accommodate
• Employment and Pregnancy
  • Pregnancy and pregnancy-related legislation and protections beyond the Human Rights Code;
  • Discrimination in hiring, promotions, transfers and terminations
  • The Duty to accommodate pregnancy and pregnancy-related characteristics

Although this is an Ontario-based policy, the concepts discussed have universal application.  As a result, I'd consider it recommended reading for all Canadian employers.

Please excuse the technical difficulties....

For some reason today the feedburner for my blog kicked out to my e-mail subscribers a post I did back in late January.  I'm not exactly sure why that happened, so for those who had previously read that post, please accept my apologies.  Hopefully whatever technical difficulties arose this morning will resolve themselves but, if not, please bear with me while I figure them out!

If the post you received this morning was a new one to you (as you subscribed to my blog after it was initially posted), here's my full series relating to Using Social Networking in the Hiring Process.  Enjoy!

Using Social Networking in the Hiring Process: Smart Move or Human Rights Trap? - Part One

Using Social Networking in the Hiring Process: Smart Move or Human Rights Trap? - Part Two

Using Social Networking in the Hiring Process: Smart Move or Human Rights Trap? - Part Three

The danger of complacency: why regular harassment prevention training should be a no-brainer

After letting my blog take a back seat to the flurry of investigation and training work that's been requested of me since mid-April, I'm finally ready to get back to writing!  Truly thankful for the work but boy has it been busy!

For today's post I'm actually reflecting back on my recent investigations to discuss why it is so important for employers and their managers and supervisors to refrain from getting too comfortable with the way things appear to be going in their workplaces. 

I was recently called into a medium-sized workplace to investigate complaints of harassment that had been filed against an employee.  This workplace had in place a Respectful Workplace Policy that  prohibited discrimination, human rights-based harassment and personal harassment.  One of the questions I always ask when I interview employees and management involved either directly or indirectly in allegations of workplace harassment is whether they were aware of their company's policy and, if so, whether they had received training on the policy.  If I'm speaking with someone who has supervisory responsibilities, I will also ask whether they had ever received training on the very specific responsibilities of management to prevent and appropriately react to complaints of harassment.  And so, I asked these same questions in this most recent investigation.  Here are the responses I received:

• some of the employees had a vague idea that their workplace had a Respectful Workplace Policy but they had no idea what it said and had never received any training on the Policy.  Moreover, they had no idea how to go about filing a complaint under the Policy or otherwise having any concerns they might have about harassment addressed by their workplace;
• most of the managers knew about the Policy but the line managers had never received any training on the Policy.  Most of the managers did not have a clear idea as to the process mandated by their company for raising and addressing complaints of harassment. 
• the key line manager (the one who had direct authority over the employee accused of harassment) only had a vague understanding of his legal responsibilities as a supervisor to respond to and effectively address concerns about potentially harassing behavior in the workplace.  In response to the question of whether he had ever received any training specific to his legal responsibilities as a member of management, he indicated that training opportunities had been offered, on a voluntary basis, but he had never signed up to attend.  He had never been required to take such training by his employer.  More importantly from his perspective, though, was the fact that it never occurred to him that he needed such training until these complaints surfaced.  There had never been a complaint of harassment filed in his workplace before and he said it was such a great place to work he never thought he had to worry about harassment ever occurring there.

I'd like to say these types of responses to my questions were rare, but, unfortunately, I can't.  In fact, these answers are quite typical.  I have, quite honestly, yet to come into a workplace to conduct an investigation and found that there exists a regular and consistent education program to train employees about their anti-harassment/anti-discrimination policies.  Needless to say I think there's a pretty strong correlation between the absence of this type of training and the subsequent need to call me in to investigate formal complaints of harassment.

While a good many organizations I come into do have some basic training for their managers on their general human rights law obligations, these training courses are usually very rudimentary in nature.  Certainly, very few managers I've spoken to during an investigation disclose to me that they have anything but an extremely general understanding of what they are legally responsible to do if they learn about an issue of harassment in their workplaces.  And, often their understanding is limited to human rights-based harassment.  Even fewer know about personal harassment or they get the two confused.  And, even though these supervisors might have a general understanding of their legal obligation to prevent harassment in the workplace, they more often than not lack insight into how exactly they should go about putting those legal requirements into practical action.

So, why this pattern of a lack of training and education?  Well, I think the response of the manager in my most recent investigation goes to the heart of this -- why spend precious time, energy and money on learning how to prevent harassment in the workplace or on learning how to appropriately address it when it's easier just to believe it's never going to happen in the first place?  Thinking harassment (or at least an allegation of harassment) is never going to occur in your workplace is, well, silly.  I can point to oodles of requests for investigations and reams of legal decisions that suggest otherwise.  

And, thinking those in your workplace will never need training to know how to bring concerns of harassment to the attention of management or how to deal with harassment when it arises is an approach that clearly illustrates what is meant by the phrase "penny-wise and pound foolish."   The amount of time and money dedicated to an effective workplace harassment education and training program pales in comparison to what it will cost to hire someone external to do a proper investigation into a formal harassment complaint -- or, even worse, to hire a lawyer to have to defend you in a legal proceeding before a human rights commission, an arbitrator or the courts.  Complacency has no place here --really, honestly, truly.  Training from my perspective is a 'no-brainer' and a key to employers avoiding liability in the area of workplace harassment (which, as regular readers of this blog will know 'liability avoidance' is my mantra).  Here's what I think employers should be doing:

• train all new employees (whether they are part-timers, full-timers, casual, summer, etc. -- this means everyone who is new to your company) on what your workplace Anti-Harassment or Respectful Workplace Policy says.  Detail how they can help prevent harassment in the workplace.  Explain how they can bring concerns about harassment to the attention of someone in authority;
• on a regular basis (ideally this should be annually), remind all employees about your Policy and what it requires.  If your current employees haven't received training similar to that described above for new employees, make sure they get this training as well;
• all managers and supervisors should be required to attend training which outlines their specific responsibilities to prevent and address harassment in the workplace.  Refresher courses should be implemented at regular intervals;
• upper level executives/business owners should also receive training specific to understanding their role in preventing and addressing harassment. 

So, that's my two cents of advice to address a potential money pit of a problem. 

But what about you?  Does your workplace have regular harassment prevention training in place?  What does that training cover?  As always, I welcome your comments and/or feedback.

 

Decision to replace homecare worker not discrimination

In McEvoy v. Best Care Ltd. the Newfoundland and Labrador Court of Appeal tackles the question of whether the termination of the employment of a female home care worker prior to her return-to-work after maternity leave constituted discrimination on the basis of sex.   The decision is of interest for the approach the court takes to examining the facts of the case.

The Facts

Ms. McEvoy was a home care worker whose employment was funded jointly by the Newfoundland and Labrador Department of Health and Community Services and a Mr. Dalton, an 80-year old man with health problems who required services under the province's Home Support Program.  The province funded 75% of Ms. McEvoy's employment while Mr. Dalton funded 25%.  Along with his family, Mr. Dalton chose Ms. McEvoy to be his home care worker to enable him to live in his own home.  They requested that Best of Care Ltd., a corporation and agent of the Crown responsible for the administration and delivery of home support services in Eastern Newfoundland, hire Ms. McEvoy as an employee and manage her pay.  

Ms. McEvoy commenced working as Mr. Dalton's home care worker on April 17, 2000.  Throughout her time working for Mr. Dalton they had a positive relationship and there were no complaints about her job performance.  Ms. McEvoy became pregnant and subsequently went on maternity leave on August 5, 2001.  At the time, she advised Mr. Dalton's family that she would not be returning to work until January 2, 2002.  At the request of the Dalton family, Best of Care Ltd. hired another female home care worker to temporarily replace Ms. McEvoy.

While Ms. McEvoy was on maternity leave, Mr. Dalton had surgery.  As a result, he now required assistance with bathing, getting dressed and going to the washroom.  

Between December and March 2002, discussions occurred between the Dalton family and Ms. McEvoy which resulted in a delay in her return to work to March 1, 2002.  On March 1, Mr. Dalton wrote to Best of Care Ltd. to advise that he inteded to retain his replacement worker as his permanent caregiver.  He felt that the replacement worker provided him with a higher level of care than Ms. McEvoy.  In particular, he felt more comfortable with her performing the bathing, dressing, etc. duties as he had known her longer than Ms. McEvoy and he also preferred the replacement worker's cooking.  

Ms. McEvoy file a complaint with the Newfoundland & Labrador human rights commission alleging that her termination was discriminatory on the basis of her sex and pregnancy.  She filed her complaint against Best of Care, Mr. Dalton, and the province's Ministry of Health.

History of decisions

The Board of Inquiry sided with Ms. McEvoy and concluded that her termination was discriminatory and that the respondents had not established that her termination resulted from any good faith occupational qualifications.  The province appealed that decision and the Trial Division judge concluded that the Board's finding of discrimination was unreasonable.  Moreover, the judge determined that the Ministry of Health was not an employer here and as a result was not vicariously liable for any wrongful termination.

The Human Rights Commission appealed to the Court of Appeal.

The Court of Appeal's decision

In rendering its decision, the appeal court pointed out that before a determination can be made as to whether the termination of a woman's employment upon return-to-work after maternity leave is discriminatory, the entire context leading up to the termination must be taken into account:

"The failure to allow a woman who has taken maternity and parental leave to return to work at the conclusion of her leave can be discrimination on the basis of sex.  But a human rights tribunal must consider all the circumstances and ask whether it is reasonable to infer that the maternity leave was a causative factor in the refusal to continue employment."

In this situation, the court concluded that the termination was not discriminatory because:

• Mr. Dalton did not decide to permanently hire the replacement worker while Ms. McEvoy was on maternity leave but when she was returning to resume her previous duties.  At that time, then, Ms. McEvoy was not in a disadvantaged position due to her sex but was in a position to compete with the replacement worker for the job;
• Mr. Dalton provided credible reasons relating to the quality of care that he was receiving and unrelated to a prohibited ground of discrimination, for preferring the replacement worker over Ms. McEvoy;
• On the other hand, there was no evidence presented to base an inference that maternity leave or pregnancy factored into Mr. Dalton's request that Ms. McEvoy no longer be employed to care for him.  Key here was the fact that Mr. Dalton was more familiar and more comfortable with his replacement worker in providing certain aspects of his personal care that Ms. McEvoy had never had to perform previously. 

In responding to the Commission's argument that Mr. Dalton's preferences should not be determinative here, the court noted that while "customer preference" is not a defence to discrimination where the preference relates to discriminatory grounds, this does not mean that customer preference is irrelevant in examining the reasons for a refusal to employ post-maternity leave in this context.  Here, the court found that the reasons Mr. Dalton gave to prefer the replacement worker over Ms. McEvoy were completely legitimate in all of the circumstances and had absolutely no connection to her sex or pregnancy.

Because the court concluded that there was no discrimination, it did not move on to consider whether the trial judge correctly decided that the Ministry of health was not Ms. McEvoy's employer.

New job site focuses on connecting workers with disabilities and diversity-seeking employers

The Canadian Abilities Foundation has announced the launching of a new online job board at jobs.abilities.ca.  The job board is the result of a strategic partnership with Workopolis.com , and, according to the CAF's news release, is unique in Canada due to its specific focus on connecting prospective employees who have disabilities with employers who have an interest in enhancing the diversity of their workforces.  If you're a person with a disability looking for a job or an employer who values the contributions that persons with varying abilities can make to your business, jobs.abilities.ca looks like a site worthy of checking out.

Employer terminates disabled employee before union protection could be gained

In a March 9, 2009 decision, the British Columbia Human Rights Tribunal ruled that Norwex Civil Contractors Inc.  discriminated against Chris Mills on the basis of disability.  In particular, the Tribunal concluded that Mr. Mills, who was actually terminated twice by Norwex, was ultimately fired the second time to prevent him from becoming a member of the company's newly formed union.  Membership in the union would have protected Mr. Mills from arbitrary termination on the basis of disability.

Although the Tribunal would have awarded monetary damages to Mr. Mills, he did not seek compensation.  Instead, he brought his complaint to bring public awareness to the discrimination that people with disabilities can, and often do, encounter in the workplace.  In this particular situation, Mr. Mills presented with a visible physical disability (his gait was affected and he spoke slowly and precisely) due to a brain injury he sustained as a result of literally almost drinking himself to death.  When he was initially terminated by Norwex, he was advised that he had to be let go because other employees were uncomfortable around him.  Norwex reversed its decision to terminate after Mr. Mills asserted his rights to employment without discrimination.  "Wiser" the second time around, Norwex chose to tell Mr. Mills he was now being let go because his job would no longer exist due to the closure of part of the company.  Unfortunately for Norwex, Mr. Mills saw right through that explanation and took them to task before the Tribunal.  No one appeared at the hearing on behalf of the company.

The decision is a short one (6 pages) and I'd urge you to read it.  It shows just what disabled employees can come up against in the workplace.  It turns out for Mr. Mills, his most significant barrier to overcome wasn't his debilitating injury, but his employer.

New drug testing publications of assistance to employers

Lately, I've been getting a number of inquiries about the legalities of drug testing in the workplace.  It's a 'hot issue', particularly in the last few years as some key cases have wound their way through the tribunals and courts.  Last month, I was also interviewed on CBC radio as a result of a post I did a few months back on the recent adoption of a drug testing policy by the BC construction industry.   The interview focused on what the legal concerns were about having employees submit to drug testing.

Recently, two Canadian human rights commissions have released guidelines relating to drug and alcohol testing in the workplace:

• the Manitoba Human Rights Commission's publication is called "Drug and Alcohol Testing in the Workplace: When you can test, What you must consider";
• the Alberta Human Rights & Citizenship Commission's information sheet is entitled "Drug and Alcohol Dependencies in Alberta Workplaces".

Both are very useful and current resources for employers (and employees or job applicants) to review and understand how Commissions are examining this issue.  It is, however, important to remember that the law relating to drug testing, in particular, is in an evolving state. 

Clearing the air: criminal records, employment and the Manitoba Human Rights Code

For some reason, I've run across a bunch of articles lately which make the bold statement that Manitoba's human rights legislation offers no protection to employees or job applicants charged with a criminal offence or who have a criminal record.  Since that is not the case, I thought I'd try to 'clear the air.'

Whether a job applicant or an employee is given any protection under human rights legislation relating to criminal charges or convictions very much depends on where you live in Canada.  In some jurisdictions across the country, and federally, the applicable human rights legislation contains a specific reference to persons who have been criminally charged and/or who have criminal records and provides them with varying protections.  Here's a sampling:

The Ontario Human Rights Code contains the following provision:

Employment

5.  (1)  Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

Note: Ontario defines "record of offences" as referring to a Criminal Code conviction for which which a pardon has been granted or a conviction for a provincial offence.

The Yukon Human Rights Act has this section:

7.    It is discrimination to treat any individual or group unfavourably on any of the following

grounds

        ..........

(i) criminal charges or criminal record..."

Here's what the British Columbia Human Rights Code says:

13  (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

You'll note, if you read closely, that Ontario, BC and the Yukon all treat the issue of criminal charges and/or convictions in the area of employment very differently.  In Ontario, you have to have a pardon before you receive protection.  In BC, employment decisions cannot be made on the basis of a person's criminal conviction if the conviction is unrelated to the person's employment.  In the Yukon, the protective reach extends to persons who either have criminal charges or records.  It is very important that you be aware of the specifics of the legislation that applies to you as an employer.

So, what's the situation in Manitoba?  In Manitoba's Code there is no specific reference to the fact that person's with criminal records or who have been charged criminally have any protections.  To, perhaps, muddy the waters, the Code also contains a provision that says:

Criminal conduct excluded

9(4) For the purpose of dealing with any case of alleged discrimination under this Code, no characteristic referred to in subsection (2) shall be interpreted to extend to any conduct prohibited by the Criminal Code of Canada.

The reference in s.9(4) to "subsection (2)" refers to the specific characteristics that are protected under Manitoba's legislation and which I've discussed here before (eg. religion, age, sex, ancestry, disability, etc.).  Ok, so based on s.9(4), I guess persons with criminal records aren't protected?  Wrong.

Manitoba's Code contains four general definitions of discrimination.  Three of those definitions link specifically to the protected characteristics.  But, the fourth definition makes no reference to the protected characteristics at all.  This is the "unspecified grounds" provision and here is what it says:

9(1) In this Code, "discrimination" means

(a)    differential treatment of an individual on the basis of the individual's actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit.

And this, my friends, is where people who believe they have been discriminated against on the basis of a criminal charge or conviction can attempt to seek redress under Manitoba's legislation.  So, for example, if you, as an employer, choose not to hire someone simply because they have a criminal record, rather than assessing their ability to do the job on the basis of their personal merit, that decision could trigger a successful human rights complaint under the Manitoba Code.

Manitoba's Human Rights Commission has specifically addressed how they will approach the interpretation of section 9(1) in its Policy Relating to Criminal Records:

"Alleged discrimination in employment on the basis of a criminal charge or conviction may constitute the basis of a complaint under section 9(1)(a) of

The Human Rights Code.

Whether a charge or conviction has a bona fide relationship to the occupation or employment will depend upon all of the circumstances of the individual case, including, at least, the following:

(i) Does the behaviour that is the subject of the charge or conviction, if repeated, pose a significant threat to the employer’s ability to carry on its business safely and efficiently?;

(ii) What were the circumstances of the charge and the particulars of the offense involved: e.g. how old was the individual when the events in question occurred; were there extenuating circumstances?;

(iii) How much time has elapsed between the charge or conviction and the employment decisions? What has the individual done during that period of time? Has s/he shown any tendencies to repeat the kind of behaviour for which s/he was convicted? Has the individual shown a firm capacity to rehabilitate him/herself?;

(iv) Although not determinative in and of itself:

a. has a pardon been secured in relation to the offence?

b. have all the conditions been met in relation to an offence for which a conditional discharge was received?

(v) Having considered all of the above, was the severity of the particular action taken against the Complainant warranted by the nature and circumstances of the charge or conviction?

The onus is on the employer to establish that the existence of the criminal charge or conviction is a reasonable disqualification.

The Commission recognizes an individual’s fundamental right to be presumed innocent until proven guilty subject to only such reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society. Therefore, where the discrimination is based on a criminal charge, as opposed to a conviction, the evidentiary onus on the employer will be greater. In addition to the factors (i) to (v) above, the employer must clearly demonstrate that the risk to the public, co-workers or the employer’s business is so severe that the mere possibility of a conviction warrants the discriminatory employment decision."

So, if you are a Manitoba employer, and you happen to have read some of the articles I've been reading lately which say employers here are not impeded from refusing to employ someone if they have been criminal charged or convicted please ignore what you've read.  Although perhaps not as obviously as the Yukon legislation, in the area of employment, the Manitoba Code does provide broad protections to persons who have either been convicted of a criminal offence or who are facing criminal charges.