Human Rights in the Workplace

Twitter Talk - August 24, 2009

I'm thankful I was able to get out with my family yesterday and enjoy our one whole day of summer yesterday!  (We almost didn't recognize the blue sky and sun when it showed up in the morning).  Today, we got hit by a thunderstorm which had me wondering if we were going to leave the house at all!  Guess I should be thankful we have a roof over our heads in order to continually duck this lousy weather.

Anyway, amidst the weather wranglings, there has been a lot of interesting discussion on Twitter during the past week covering everything from enhancing workplace diversity, to how workplace sexual harassment is morphing with the new technologies and even to how those new technologies are impacting employer behaviors.  You'll also see a link to a great video that shows how a person who is blind navigates the internet on his computer.  Happy reading/viewing!

Alberta companies enhancing diversity of their workforces esp in male dominated fields http://chilp.it/?1dec50

Thoughts? Are women penalized in the wkpl if also a mom? http://chilp.it/?06be8e

The 'new' sexual harassment is less in-your-face than in the past but still a big problem. http://chilp.it/?a0fb02

RT @jonhyman: New blog post: Papering a personnel file as evidence of retaliation? http://bit.ly/Ijhgs

Just the beginning...RT @RossRunkel: 7 percent of hiring managers look at applicants' Twitter posts http://tinyurl.com/kkk9jr (@djillpugh)

RT @GlendaWH: Have you ever wondered how a blind person uses a computer? Here's a great video http://bit.ly/uuFC4

 

Top 6 ways to avoid a Starbucks-type age discrimination lawsuit

An age discrimination lawsuit brought against Starbucks in the US is being allowed to proceed.  In the civil suit, a 56 year old woman claims that although she applied to a number of Starbucks stores in Portland, Oregon between November 2005 and April 2006, she was never hired.  Her view is that there could be only one reason for not being hired -- her age.

Although Starbucks has denied any discrimination and contends that it "prides itself on embracing diversity", the Plaintiff's lawyer says she has information which shows that:

• Starbucks' hiring practices were ignored by at least one manager at a location the woman applied at;

• of the 19 employees hired by this same manager, none were over the age of 30;

• between 2004 and 2008 (capturing the period of time the Plaintiff applied for jobs at Starbucks), as demonstrated by an analysis of Starbucks' hiring practices by a local sociology professor, a greater percentage of those age 35 or older had applied for but not received a job.

The Plaintiff's lawyer alleges that this all adds up to proof of hiring practices that are discriminatory on the basis of age.

Whether or not Starbucks will ultimately be found to have discriminated against this woman on the basis of her age remains to be seen.  But, I think the case raises some important issues that all employers, whether they are located in the US or Canada, should be continually thinking and doing something about to avoid having to fend off similar legal action.  Here is my list of the top six ways employers can avoid a Starbucks-type lawsuit:

1. Just because you say you support diversity doesn't get you a one-way ticket to slam dunking a discrimination claim if one comes your way.  You need to ensure your hiring practices actually support your message.  This means examining them to ensure they meet human rights law obligations in your particular jurisdiction;
2. If you have established hiring policies and procedures which address diversity and workplace human rights, well, for goodness sake follow them.  Your policy won't be worth the paper it is written on if you find yourself having to defend against a claim of discrimination in your hiring process;
3. Make sure those responsible for hiring know about workplace human rights and how not to violate them;
4. Keep track of who you're hiring and who you aren't -- are there any definable patterns or trends?  If so, those trends could signal systemic discrimination.  Looking back at the Starbucks situation, if you're getting applications from the over 35 set yet when you look around your workplace all you see are 19-20 somethings, might there be barriers in the systems you've established to hire that prevent certain segments of the population from becoming one of your employees?  This not only applies to age-related issues, but all protected characteristics under human rights legislation (eg. disability, race, sex, etc.);
5. Do the people you are hiring reflect the people who are your customers?  The diversity reflected in your employee pool should strive to reflect your pool of customers.  If the diversity equation is out of whack, maybe you should have a look at whether you're just attracting employees who look like who they see when they come to buy your product or service.  Consider reaching out to a broader base of potential employees.  Not only could this enhance the diversity of your employees, it can also have a positive impact on your customer base as well.  Like tends to attract like so one way to expand your customer base is to expand the diversity of your employee population;
6. If you've made attempts and been successful at hiring people from diverse backgrounds and they've stuck with you, find out what worked.  If your attempts have failed, though, try to find out what went wrong so you can improve your processes and garner success the next time. 

Those are my top 6.  Care to add to the list?  If so, feel free to comment.

Accommodating Muslim employees during Ramadan

On September 13, people of Muslim faith began observing the holy month of Ramadan.  Describing it very simply, during Ramadan, Muslims fast from sunrise to sundown (no food or drink).  After sundown, the fast is broken each night with a special meal, prayer and gathering with family.  At the end of Ramadan, a special feast is held and further prayer occurs.

Under human rights legislation in Canada, employees are protected from discrimination in the workplace on the basis of religion.  This means that employers have the duty to accommodate employees whose religious requirements come into conflict with the requirements of the workplace.   As a result, an employer would be required to resolve the employee's conflict to enable her to meet her religious needs by making changes to the workplace requirements subject to undue hardship.  So, for example, Muslim employees might require flexibility in their work schedules during Ramadan.

While the concept of undue hardship will be discussed in a future post, for now, I would say that undue hardship represents the limit of how far an employer is required to go to accommodate the needs of any employee when those needs are tied to a protected ground under human rights legislation (for example, religion, sex, disability, etc.).  What amounts to undue hardship in a given situation is determined on a case-by-case basis.  Some of the factors that are usually taken into account in determining undue hardship are cost, disruption to a collective agreement, size of the business, safety, interchangeability of the work force and facilities and problems of morale of other employees (but note, though, in provinces such as Ontario, the factors considered are limited to cost, health and safety, and the availability of outside sources of funding).  Based on the undue hardship factors and how the courts are interpreting them, in most instances employers will not reach the undue hardship limit when it comes to accommodating religion in the workplace.  In other words, employers should assess requests for religious accommodation from the starting point that, somehow, they ought to be able to modify the workplace to meet the employee's needs.

For employees who require religious accommodation, they should follow any policy their employer has in place setting out how to make accommodation requests.  If no such policy is in place, then employees are best advised to do the following:

1. advise your employer about your need for accommodation.  This is your duty under the law. It is best to provide your request for accommodation in writing;
2. be clear about what you are asking for.  Remember that your employer may have little, if any, knowledge about your religion or what is required of you to observe your faith;   
3. provide your employer with suggestions about how your needs could be accommodated in light of the requirements of your workplace.  You are often in the best position to come up with a solution to the conflict between the workplace's requirements and that of your religion.

As for employers, they should:

1. develop a policy and procedure for addressing religious accommodation in the workplace;
2. accept all requests for religious accommodation with an open mind and in good faith;
3. explore all possible means to provide accommodation to the employee making such a request, to the point of undue hardship;
4. take opportunities, both informal and formal, to educate the workplace about the religious needs of its various employees.  Consider asking employees who have made requests for religious accommodation to participate in such education sessions.  Raising awareness about different religions in the workplace contributes to a greater understanding of co-workers' needs in this area.

For further reading on this topic:

Winnipeg Free Press: "More workplaces accommodate staff during Ramadan"

HRinfodesk: "Ramadan and the workplace - a guide for human resources"

Kwintessential Crosscultural Solutions:"Muslims, Ramadan and the Workplace - A Guide for HR"

US companies graded on equality for GLBT employees

The Human Rights Campaign Foundation, an American organization that advocates for the rights of gay, lesbian, bisexual and transgendered (GLBT) persons, has released its recent survey of a wide range of companies headquartered in the US which evaluates those companies on how inclusive they are of the GLBT population.  The Corporate Equality Index, as it is called, rates the businesses on things such as:

• whether the business has a non-discrimination policy that includes a prohibition on discrimination relating to sexual orientation and gender identity;
• whether the business provides insurance coverage for employees transitioning genders;
• whether the business extends health insurance coverage to the same-sex partners of employees;
• whether the business exhibits responsible behaviour toward the GLBT community.

Click here to read the article referencing the survey in the San Francisco Chronicle.  Click here to link to the Human Rights Campaign Foundation's blog that talks about its release of the survey and click here to view the survey itself.

I am unaware of a similar review of businesses headquartered in Canada (I note, though, that the HRC's survey did look, for example, at that venerable Canadian institution the Canadian Imperial Bank of Commerce which maintains US headquarters -- CIBC received a 95 out of a 100 point rating, by the way).   It would be interesting to know how Canadian companies stack up against their American cousins.  My guess is that while sexual orientation has likely hit the radar screens of Canadian businesses, I'm not so sure about gender identity.  With the exception of Alberta, all other human rights legislation across the country specifically lists sexual orientation as a protected characteristic (in Alberta they "read in" sexual orientation into their Act although it isn't specifically mentioned) and human rights tribunals and the courts have issued key decisions relating to discrimination on the basis of sexual orientation. 

Gender identity is another story.  The North West Territories is the only jurisdiction in Canada that lists gender identity specifically as a protected ground in its human rights legislation.  Manitoba is a close second with its reference to protecting "gender-determined characteristics."  Alberta references gender.  But, that's it.  In other provinces, human rights legislation has generally been interpreted to include gender identity under the protected characteristic "sex".  Beyond that, there are only a handful of legal decisions in Canada that address discrimination in employment on the basis of gender identity.  Now, that does not mean that Commissions haven't been talking about gender identity and trying to raise awareness about discrimination and harassment faced by transsexuals and transgendered persons.  For example, click here to read the Ontario Human Rights Commission's Policy on Discrimination and Harassment because of Gender Identity.                         

I wonder, though, are employers in Canada hearing that message?  If not, they should.  As shown by the HRC survey, the GLBT population is watching.  At a time when employers are facing a shrinking labour force, to remain competitive they need to ensure their workplaces are as inclusive and welcoming as possible.

Mommy -- she's different!

I have now learned my first rule about blogging.  Do not promise to write about any particular topic in your next post because inevitably something else will come up -- life, for one -- that changes your thoughts about what you want to write about.  So, here I am writing about something completely different than I promised. 

Those of you who have read my "About me" page will know that I am, among other things, a mom of twin girls.  They are just shy of their fourth birthday.  I work out of my home so that I can do my most important job -- being a mom -- the best way I know how, by being around.  Because I work in the human rights field I have tried to instill in my girls a love of diversity, particularly with people.  They know their aunt is different because she has very obvious physical disabilities.  They know their grandma has some physical challenges of her own.  They ask about why they have these differences and I've done the best I can to explain that in three-year old terms.  My mantra is "everyone is different, some in ways you can see, some in ways you can't, but whatever the case, we're all different and that's a great thing." 

I wasn't sure if what I keep telling them about difference was sinking in to any degree beyond our own family.  Usually, they just like to point out that one of them has curly hair and the other has wavy hair.  Good start.  But, then, the other day, I interviewed a prospective sitter and she just happened to be of a different ethnic background than ours.  After the interview, I asked my girls what they thought of her and they said she was really nice and that they liked her pink shirt.  Then, my one daughter piped up and said "mommy, she had brown skin.  She was different.  And that's ok.  She was really funny too." 

While they are still at a very early stage of understanding difference and diversity, it was great to hear my daughter say these things.  I can only hope that as they grow, they will continue to notice and want to understand the differences that make us all unique.  Their lives will be richer for it.