Human Rights in the Workplace

Interview: Impact of Ontario accessibility standards on delivery of training in the workplace

I recently had the opportunity to be interviewed for the July 2009 issue of the OHSCompliance and EHSjustice newsletter (a Canadian publication addressing Environmental, Health and Safety News and Legislation which you can find at www.ecolog.com).  The focus of the article was on how the standards currently being developed pursuant to the Accessibility for Ontarians with Disabilities Act, 2005 might impact how employers and safety training agencies in Ontario deliver training and/or provide safety information in the workplace.  (You can find out more information about the legislation by viewing the Accessibility for Ontarians with Disabilities website).  As I thought readers of this blog may well have an interest in what was discussed in the article, I was kindly provided with permission from EcoLog Information Resources Group, a division of Business Information Group and publisher of EHScompliance.ca newsletter to reproduce the piece below.  Please note that the article cannot be reproduced, reprinted, republised or reposted anywhere else without the written permission of the original publisher.

OHScompliance and EHSjustice -July 2009

Accessibility standard may affect how training, safety info delivered in Ont

by Mark Sabourin

Across the country, advocates for persons with disabilities are watching with interest as Ontario develops standards under the Accessibility for Ontarians with Disabilities Act,2005 (AODA). A standard for customer service came into force on January 1, 2008, and four others are under development: transportation; built environment; information and communications; and employment.

Public sector organizations must comply with the customer service standard by January 1, 2010, while private sector and non-profit organizations must comply with the standard by January 1, 2012.

The four remaining standards are expected to be finalized in the coming months.

Ontario’s employers and safety training agencies haven’t been paying much attention to the process so far, and very likely they should have. The information and communications standard, for one, will require that information about “workplace health and safety procedures and systems” be made available to employees with disabilities in “accessible alternate [sic] formats and communication supports.” The employment standard specifically references WHMIS (workplace hazardous materials information system) material, among others, which must be made compliant with the information and communications standard.

Even staunch advocates of the standards are quick to explain that this does not mean that all MSDSs (material safety data sheets) will have to be rendered in Braille. But the information and communications standard, if adopted (and it has passed all phases of public review), may significantly affect how training is delivered and how safety information is communicated.

In addition to disabilities that are perhaps more familiar to employers, such as mobility, hearing or visual impairments, the AODA includes learning disability. That covers between 4% and 6% of Ontario’s population, says Diane Wagner, coordinator, Public Policy and Client Services with the Learning Disabilities Association of Ontario (LDAO). Wagner served on the information and communications standard committee, and the LDAO was also represented on the employment standard committee.

Really, it shouldn’t come as a surprise. The current Ontario Human Rights Code prohibits discrimination in employment “because of handicap,” which includes learning disability.  The Ontario Human Rights Commission has a long list of policies, supported by case law, around the doctrine of reasonable accommodation. There is no easy definition, but if a worker’s disability can be accommodated without undue hardship or compromise to safety, then it must be.

Donna Seale, Manitoba human rights lawyer and educator, says it has long been the case that workplace materials should be made available in formats suitable for the disabled, including the learning-disabled. Most employers get the concept of reasonable accommodation, says Seale. Translating that into action is sometimes problematic, and that’s where standards like this one step in. They tell employers and training agencies what they should do.

Acceptable alternative communication formats for persons with disabilities are listed in an appendix to the information and communications standard. Formats include Braille, e-text, audio, video, captioned video, sign language and many others. These are the provisions that have provoked fear or ridicule from critics, but supporters say these concerns are unfounded.

“A big misconception is that everything has to be ready all at once, up front,” says Diane Wagner, “that you have to convert everything into Braille, everything into every format.”  That’s not the case. Employers will have to determine first if they need to convert information, what information needs to be converted, and what format is most appropriate.

Two workers of the same age and background, with identical disabilities, will not have the same accommodation needs, says Bob Santos, CEO of Link Up Employment Services for Persons with Disabilities, headquartered in Toronto. Quite likely, the degree of accommodation required will be far less than the employer initially suspected. 

Safety is a legitimate exception to reasonable accommodation. The communications standard won’t require employers to offer forklift training to blind workers. But employers will not be permitted to deny an opportunity to an employee solely on the argument that a learning disability prevents effective communication of safety information, says Diane Wagner. If an employer plans to make that argument, the employer had better be prepared to prove that considerable efforts were made to accommodate the worker, and that those efforts failed.

“You can’t say, ‘he can’t read the health and safety manual so he can’t get the job,’” says Wagner.

What the standard should do is compel employers and training delivery agencies to review how they deliver safety training in order to make it more broadly accessible, says Bob Santos. His organization delivers a program called SafeAbility, which offers safety training geared to the needs of persons with disabilities. It also offers a “train the trainer” program for employers and agencies that will be delivering services to workers with disabilities.

It is not a burdensome process, Santos assures. It requires a shift in thinking by the persons delivering the training or communicating the information, and more careful scrutiny of the media that carry the information. “It is simple enough and straightforward enough to be implemented in any place of employment, any community, anywhere in the world.” It is more expensive, he says, but not much more, and certainly not enough to bar its introduction where needed.

Cost alone is seldom a sufficient argument against reasonable accommodation, says Donna Seale. To prevail, the cost would have to threaten the viability of the business, she says.

It’s quite possible that there are more learning-disabled people in the workforce than employers suspect. Margaret Eaton, president of the literacy organization ABC Canada, says learning disability often manifests as poor literacy, and those workers have naturally gravitated toward the manufacturing and resource sectors, where literacy skills are not in as high demand. The shame felt by poorly-literate workers often leads them to conceal their status, she says.

But the decline in the manufacturing sector, coupled with greater recognition of learning disability in the education systems, means that more and more learning-disabled workers will be seeking employment in positions they can safely perform, provided training and safety information is delivered to them in a format other than a hard-copy manual.

“[Learning-disabled] students that are coming up through the school system are used to using assistive technologies,” says Diane Wagner, referring to some of the accommodations referenced in the information and communications standard. Margaret Eaton says the previous generation of workers would have been reluctant to declare a learning disability and ask for accommodation. For the generation entering the workforce, it will be the norm.

Often, says Donna Seale, employers look at accommodation as “something they have to endure,” when in fact the changes end up benefiting everyone in the workplace, not just those to whom they were initially directed. Ours is an aging workforce, she says.  Accommodations made for visually impaired workers or learning-disabled workers may also prove to be great benefits to older workers or others, she says.

Bob Santos likes to cite the example of the automated door-opening device found in contemporary buildings. It’s activated by a push-button identified by a universal logo of a person in a wheelchair, but it is far more often used by able-bodied people, he says. The same should happen with training, as sensitivity to the needs of persons with a wide range of disabilities may improve the standard of training delivery for everyone.

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.

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.

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.

 

 

Using social networking sites in hiring process: smart move or human rights trap? Part Three

Today marks our last installment in the series on whether employers should be using the Internet to screen job applicants.  (Well, at least it's my last post for now.  As I've mentioned before, this is an emerging area of the law so I'm sure there will be more to talk about down the road).  If you missed the first two posts of the series, you can check out Part One here and Part Two here.  I'd also urge you to read the comments posted by Dan Michaluk to Part Two (scroll down to the end of the post and click on "comments").  His comments aligned very well with my thoughts going into this post and they also prompted me to press my thinking further so I thank him for taking the time to contribute.

I'll be honest, when I was first asked by one of my readers about whether employers should be doing Internet-based or social networking-based searches in the recruitment process my initial response was to recommend the opposite of Nike's famous slogan and say "just don't do it".  Certainly, in Part Two, I set out a whole host of legal problems that can arise from doing Internet searches in the recruiting process so it would be completely reasonable to suggest you should avoid them like the plague -- at least until we have further direction from the law.  At this point in my thinking process, I still tend to sit closer to that side of the fence.

But, I also have to be pragmatic.  Given that there are employers in Canada already doing these searches (remember that 12% statistic we talked about in Part One), given this is a trend that will likely only increase as time goes on (as shown by what's already occurring in the US) and given that I know the lure of a quick Google search may be just too much for some of you to resist, let's move to looking at this issue from a practical perspective. 

If you think you might want to take a peek at what pops up on an Internet-based search of your job applicants, what are the things you should be thinking about in order to minimize your legal liability?

Here are my TOP EIGHT TIPS:

1.    Be Realistic

Before you embark on a Google or social networking site search, I think it's important for you to reflect on whether, given who you are as an employer and the nature of the job you are attempting to fill, you really need to conduct these types of searches in the first place.  If you're a mom and pop grocery store looking for a part-time bagger, your approach might be very different than, say, if you're the President of the United States looking to cull together your White House team. 

Going back to Part Two, you'll want to ask yourself whether a job candidate's online presence, whatever it may be, could somehow come into conflict with the job you are considering hiring them for.  If you can't connect the dots, you shouldn't be doing these types of searches. 

Remember: just because the information may be out there doesn't mean you need to access it.

2.     Maintain the Upside-Down Funnel

Remember in Part Two I talked about how it is always advisable to think of the the information-gathering process relating to your job recruits as an upside-down funnel.  You should be ensuring that you are only asking what you need to at each stage to determine whether your candidate moves forward.  Too much information too soon plus an adverse hiring decision will increase the chances you'll be faced with a discrimination claim.

With that in mind, it is my view that any Internet-based searches should be done after you have made your candidate a formal job offer. 

3.    Be Upfront

This point ties in closely with point #2.  I think you should be clear with all of your job applicants that if they reach the end of your recruitment process and are offered a job, you will be conducting a full background check.  You should indicate what that background check will consist of, including Internet-based searches. 

By disclosing this from the get-go you demonstrate that you're not doing anything "behind anyone's back", and you might even have job applicants who weed themselves out because of your disclosure.  That might be a good thing (if they, perhaps, have put something out on the web that might not make them a good fit for your organization) or not (you may get quality candidates who just aren't comfortable with employers who do these searches regardless of whether there is anything negative out there about them to find).

4.    Establish a written process

The saying "the best defence is a good offence" applies as equally to mitigating your legal risk as it does to the sports world.  By this I mean that it always helps to have a written document that you can point to in your defence against litigation setting out what you did and didn't do in relation to any particular process you adopt in your workplace.

Here, you'll want to give thought to setting down in writing the following:

a.    what Internet-based searches will be run;

b.    what information yielded by those searches will be examined and why;

c.    how you will assess what may be discovered;    

d.    what use will be made of that information;

e.    how you will document any information relied on for the purposes of the hiring decision.

You'll really want to give a lot of thought to developing your search criteria so you can show a human rights commission, tribunal or civil court that you weren't just going on a fishing expedition and that there are tangible job-related reasons why you conducted these searches in the first place.   Most importantly, from my perspective, you always want to be able to demonstrate that you only looked into what was needed to appropriately judge your job applicants on the basis of personal merit.  The more tightly honed your search criteria, the greater the likelihood that it might be found reasonable upon review.

In terms of record-keeping, as pointed out by Dan Michaluk in his comments to my Part Two post, you'll want to retain a hard copy of any information generated by Internet-based searches that meets your search criteria.  The hard copies should be placed on your recruitment file.  As Dan notes:

"This should keep the decision clean of irrelevant and risky information and should also eliminate any risks of getting into disputes about production of search-related forensic information."

5.    Have someone other than the decision-maker do the searches

To ensure that the person who is making the decisions as to who gets hired and who doesn't is only able to base the decision on the best (read: legally sound) and most relevant information it is advisable to insulate him or her from any Internet-based searches being done.  In other words, the decision-maker should never do the searches.  Keeping the decision-maker insulated in this fashion helps insulate the hiring decision from legal criticism.

Of course, you'll want to ensure that whoever does do the searches is fully apprised of your written process under point #4, and is clear on what they need to do to abide by the law when conducting the searches and determining what information should and shouldn't be passed onto the decision-maker. 

6.    Be Consistent

Ensure that you apply the Internet-based background checks equitably to all candidates to whom you've made a job offer.  If you don't, you might find yourself faced with a discrimination claim on that basis alone.  

Similarly, once you embark on doing these types of background searches either for all or just particular jobs in your workplace (again, keep in mind point #1 above), then do them consistently.  If you do them some times and not others, it begs the question why.  And a human rights commission may well be interested in finding out.

7.    Be as fair as possible

I think it would bode well for an employer to give job candidates the opportunity to respond to any concerning information generated by the Internet-based background check.  Given the concerns I raised in Part Two about ensuring the accuracy of information gathered on an Internet-based search, it seems to me that this would not only be fair but a wise approach as well. 

8.    Document the decision

Once the Internet-based searches are completed and any pertinent information given to the decision-maker in your organization, ultimately, the final decision on hiring should be set out somewhere in clear terms.  Explain your rationale for choosing a particular candidate, rejecting another.  You want to be prepared to establish why you made the decision(s) you did and to show that inappropriate considerations, specifically prohibited grounds under human rights legislation, played no factor.

Parting Thoughts

While I started this series of posts in response to a question from a reader, in the end, my purpose turned out to be much broader than that (if the length of my posts didn't tip you off to that before, now you know!).  Once I started looking into this issue and learned that there were Canadian employers out there already doing these types of searches, it became concerning to me that they may well be doing them without fully understanding their legal risks.

I hope that I have been able to arm you with information so you know what the issues are (at least as they appear to be at this early stage) and that I have spurred you to think about how to address them if you choose to make the decision to venture into conducting Internet-based searches on your job candidates.  At the very least, you should think first, do second and most importantly, do after you have received the appropriate legal advice specific to your situation.

Until next time!

 

 

 

Using social networking sites in the hiring process: smart move or human rights trap? Part Two

As I discussed in Part One of this series, there appears to be a growing desire amongst employers to conduct searches of social networking sites and on the Internet to find out information about potential job candidates prior to hiring them.  

In Part Two of this series, I'm going to discuss some of the legal risks associated with these types of online searches (human rights-related and otherwise).  I was also going to set out my thoughts about how to contain your legal liabilities in this post, but have decided to keep you in suspense until Part Three.

Risks abound: technology outpaces the law

The propriety of an employer using social networking sites or the Internet generally to recruit employees is very much an emerging legal issue. Innovations in technology, as a general rule, outpace the law (which in comparison can often develop at a snail's pace). In other words, the law is playing catch-up here.  Certainly, I am not aware of any Canadian human rights law cases addressing recruitment or hiring practices using web 2.0 technologies. Haven't yet come across a US case either. But, I'm sure it is only a matter of time before someone somewhere addresses this issue in a more formal legal context.

As a result, if you are an employer currently using these types of searches for whatever purpose in the recruitment of employees or you are thinking of doing them, you need to know that you're in a relative legal no man's land, so to speak, at the moment. We have no case law precedents specifically on point to draw from. This means that you are taking uncertain legal risks venturing into such a practice.

Potential legal and related issues

Ok, so there are risks. But life is full of risks, right? True, but if I'm going to take a risk I like to understand what the downsides, in particular, might be. We might not have case law specific to the kinds of situations I've been talking about so far but that doesn't mean you can't extrapolate. 

So, here are my thoughts as to the potential legal and other issues relating to vetting through social networking sites in the hunt for a hire. By no means am I suggesting that this is an exhaustive list; these are just the issues that easily come to mind (mine at least).  And, remember, though, these are just my general thoughts, not legal advice. If you want to know whether you should be doing online searches or not, you should speak to your lawyer.

1. The Big Hurdle to Overcome: Human Rights Legislation

In my view, and this isn't just a professional bias because of the work I do but just a simple fact, the biggest legal "obstacle" in the way of an employer proceeding full steam ahead with online searches of job applicants or candidates is human rights legislation.  

a. Job Applicants are Protected

Job applicants are protected by human rights legislation across Canada. So whether we're talking about people who have sought you out for a job (in response to an ad or otherwise) or you've sought them out, you have to be careful about violating human rights law.

b. The hiring process should work like an upside-down funnel

When we come at the hiring process from a human rights perspective, you should think of it as an upside-down funnel.  Because asking for information or documentation that may include details of a person's protected characteristics can lead to the appearance of discrimination, particularly if you decide not to hire the person after obtaining that information, you should ensure you are asking only that which you need to at each stage to determine whether the candidate moves forward in the process. 

The further you get into the process, the more information you are likely to be seeking and the greater the potential for disclosure of a person's protected characteristics.  So long as you ensure the questions you are asking always relate back to the person's ability to do the job, the liklihood of a discriminatory inference being made from a decision not to hire the person is contained.  At the actual job offer stage, you may even be able to ask employment-related questions that do inadvertently expose a person's protected characteristics (such as the existence of a disability that may impact their ability to do the job brought forward from a medical examination) so long as the offer has been made and the person has accepted the offer is being made on the condition that a satisfactory response to the request for the information is required and received.

c. Doing online searches can turn the funnel right-side up 

As I noted in Part One's post, once you are able to tap into a person's online social network, you can glean a lot of personal information about them. A basic Internet search can enable that to happen as well. For example, you could discover a job candidate's personal blog where they discuss a whole range of personal information.  Once you get into the personal information sphere, you naturally get into the potential disclosure of characteristics of that person which may be protected under human rights legislation.

The danger of doing a web-based search on a job applicant or candidate too early in the hiring process is that such an action turns that funnel I talked about above right-side up -- which, while far more helpful if you happened to be using the funnel in the kitchen, it's not so good in connection with human rights law. Now you potentially become aware of a person's protected characteristics far earlier in the process than you would otherwise if the web-based search is removed from the equation.  That greatly increases an employer's vulnerability to a successful human rights complaint being made against them should they make an adverse hiring decision after locating that information.

Beyond that, much of the information that you can dig up on an Internet or social networking site search is not necessarily job-related.  If we return to the offline world for a moment, employers are always best advised to only ask questions on job applications and in interviews that go to assessing the person's merits to do the job. In other words, seeking information that goes to determining the person's job-related qualifications.  By following this approach, employers can avoid claims that they made an adverse hiring decision on the basis of a person's protected characteristics.  By doing an online search on a job candidate, an employer is potentially exposing itself to the very information it is wisely advised to avoid in offline world. 

So, here's something you'll want to ask yourself before making the decision to do an online search: If you should be avoiding asking for particular types of information during the hiring process, should you really be taking an alternative path that would very likely lead you to that very information in other ways, whether directly or indirectly?

d. Doing online searches can lead to bias creep

I would think most employers and recruiters know that, legally, they are not to weed out candidates from the hiring pool on the basis of protected characteristics.

But, what the law says and what we think and feel are sometimes two very different things.  All of us have biases of some sort or another.  Many people also operate on the basis of stereotypical notions of others.  Can you honestly say that if you come into possession of information in the early stages of the hiring process that hits upon your internal biases and which may just happen to be connected to a person's protected characteristics that you will set that bias creep aside?  Or would you just simply not call that applicant in for an interview?  No harm, no foul right?

It's important here to remember that a person who claims they have been discriminated against does not have to show that their race, for example, was the only reason they weren't hired for a job.  They only have to show it was a factor.  See more on this below. 

e. Doing online searches complicates an employer's legal defence

Even if you aren't conducting your searches with the express purpose of weeding out candidates from groups who are protected under human rights legislation, the minute you come into possession of that information and then make a decision not to hire someone you can find yourself smack dab in the middle of a discrimination claim. And, the tricky part here for employers is that once they have that "off limits" information in their possession even if they ignored it completely, it would be relatively simple for a complainant to prove a prima facie case of discrimination. Recall, above, when I noted that a complainant only has to show that their protected characteristics may have been a factor in the decision not to hire them.  

The employer would then face what is called a reverse onus situation. In other words, they would have to prove that this information did not enter into their decision-making process. It is never easy in the legal context to prove a negative.  It's like trying to swim upstream with your hands tied behind your back.

f. Online searches - no one will know anyway, right?

In response to all of my negativity you might be saying -- well, who the heck is going to find out if I do a quick Google search or check out the person's blog or Facebook page anyway?

Ah, the good old days when e-discovery was a word and a legal concept yet to be created.  And, when blogs didn't exist.

I'm not going to get too technical here, but suffice it to say that once you get yourself into any form of litigation (and a human rights complaint would qualify as that), you can be requested to produce records relating to your hiring processes.  That would include electronic searches.  Good complainant(or Human Rights Commission) counsel will know what they need to ask for to get at what you've been up to.  Beyond that, blogging platforms allow blog users to track visitors.  It may take some time to figure it out, but eventually it can be discovered if someone from your organization happened to stop by that candidate's blog where they shared to the world their stories about struggling with multiple sclerosis. Maybe it turned out you didn't like the type of font they were using and stopped reading at that point.  But, then again, maybe the disability had something to do with the candidate's rejection too.

g. Online searches & human rights - maybe it's best not to jump the hurdle

In the case of what information about a job candidate might be lurking on social networking sites or the Internet generally, ignorance might just be bliss for employers.  If you don't know what's out there and can legitimately say you didn't look, you've placed yourself in a far better position than if you did take a peek if you find yourself having to defend against a human rights complaint stemming from the recruitment/hiring process.

But, does it make a difference if you do these types of searches at a later stage of the hiring process?In other words, when you're at the bottom of that upside-down funnel?  For my thoughts on that question, you'll have to keep reading.

2. Collection of personal information and privacy-related issues

In Part One I alluded to the fact that my general sense of people's use of social networking sites is that they do not consider what they are disclosing to their friends and networks on these sites as public in nature. So, that begs the question, if you, as an employer, are tapping into that information or otherwise searching a job candidate on the Internet, are you breaching their privacy rights or some other legal right relating to the collection of their personal information?

Is doing a social networking-type search on job candidates effectively the same as "going into somebody's house and searching through their cupboards?"

I think the answer to this question is, "it depends".  (Don't you love it when lawyers answer this way?)  What I mean is that it depends what it is you are looking at when you're doing your online searches.  For a much better answer to this question, I turn to Canadian privacy law expert David Fraser

who also authors the Canadian Privacy Law Blog.  In this helpful powerpoint presentation on Privacy and the Workplace which he prepared (see pages 23 on), David indicates that "reviewing employee blogs and Facebook pages is a collection of personal information." But, reading a person's blog would not be considered an unreasonable invasion of privacy because a blog is publicly accessible.  On the other hand, with someone's Facebook entries, there may be a reasonable expectation of privacy if they have limited who has access to their profile.

So, how do you deal with this?  As Toronto information and privacy lawyer Dan Michaluk points out in his post on the Law and Ethics of Recruiting in Today's Wired World, authorization, accuracy, openness and necessity should be key aspects of the gathering of personal information during the recruitment process. In particular:

"I urged the participants to consider what reasonable steps a recruiter should take to ensure the accuracy of personal information collected from online sources and used in making recruiting decisions. I also suggested that the openness requirement demands that candidates know that their publicly available information may be collected in the recruiting process.....Applying the necessity principle to the online search issue, it seems to me that such a recruiting tactic can only be justified where the job raises a reasonable possibility of conflict between an employee's online presence and his or her job duties."

I'm definitely with Dan when he suggests that if employers are going to embark on online searches of candidates that they make full disclosure of such a practice.

Regarding Dan's comment about ensuring the accuracy of the information you might gather in your Internet search, I think this is particularly critical and concerning from my point of view. I think you need to question what weight you can actually place on the information you find when you do these types of searches on job candidates:

• Was the information placed by the candidate on whatever site you may happen to be looking at? Or, was it placed by a disgruntled former friend or colleague? Or just someone 'having fun' at their friend's expense?
• Is that photo you're looking at something the person uploaded or were they 'tagged' by someone else? [For the uninitiated, people can upload photos that you are in and tag it with your name/profile, even including comments about you as you appear in the photo. The photo would then show up in connection with your profile information whether you wanted it there or not. Facebook, so I understand, does allow you to un-tag yourself from photos you don't want to show up on your profile.  I'm not sure about other sites.].
• When were the photos taken? Were they altered in any way?  Altering photos in our digital world is easier than ever.
• Are you looking at the profile of the right "Jane Smith" who applied for the job or is this another "Jane Smith"? 
• Consider this wiki entry on "Digital Dopplegangers" flowing from Matthew Fraser's book Throwing Sheep in the Boardroom if you really want to get an idea of how mistaken identity on the Internet can and does happen. (Hat tip: Simon Chester's post on Slaw)  

    
3. Due Diligence issues 

Is it fair for employers to look up this information on job candidates?  Should it be considered part of an employer's due diligence in hiring the right employees for its business? 

Going back to Dan's post, he suggests that it is fair and appropriate, in some circumstances, for an employer to gather information about a candidates' online presence.  In particular, when a candidate's online presence may come into conflict with the fulfillment of his or her job duties.  Dan does suggest that conducting the online search in these circumstances is likely best done during the background check phase of the hiring process. By this I assume he means after a formal job offer has been made which is conditional on the return of a clean background check.  Placing the possibility of an online search into this stage of the hiring process does seem to accord better with my upside-down funnel theory of information collection that is most respectful of human rights principles.  But, does that mean the searches would be ok?

Garry Wise, a Toronto employment lawyer and writer of the always interesting Wise Law Blog, suggests otherwise. In Garry's view, these types of Internet searches are inappropriate:

"It sheds no light at all on job-worthiness or skill sets. It leaves employers highly vulnerable to accusations and inferences of discriminatory hiring practices. It is unlikely to yield any measurable improvement in workplace productivity.....Beyond that, this form of online corporate stalking probably favours only those candidates who are smart (or sneaky) enough to cover their tracks by deleting all the 'interesting' stuff, while also being reckless enough that they don't bother to adjust their Facebook privacy levels to restrict uninvited access while they are job-hunting."

For my part, any time I see an employer make a move that could lead them to gather information that might be used or might be seen to be used for discriminatory purposes, I get the heebee-geebees.  So whether the employer is doing online searching at the front end or at the back end of the recruitment process, I still question whether the risks outweigh the gains even in light of Dan's concerns.  Is leaving such a search to the background check stage, as broad as a background check can often be, sufficient to insulate an employer from human rights liability?  Is there a balance that can be found?  

The other question that I have is even if you do these searches at the conditional job offer stage, how exactly do you go about evaluating what it is you find on a consistent basis?  

4. Managing your searches

Anyone involved on the recruiting side of the recruitment process knows that they should be maintaining thorough records of their hunt for their ideal hire.  So, that begs the question that if you do make a foray into the online searching of job candidates, how do you maintain an accurate record of those searches?

This thought was also addressed in Dan Michaluk's post, mentioned above:

"The idea of Google searching candidates also raises difficult records management issues.  A defendant in a hiring dispute wants to be able to say, 'Everything we considered is in the file.'  Add an Internet search into the assessment process and, unless there is a rigorously-enforced and forensically sound protocol for recording the search on the formal record, the electronic discovery burden of defending a hiring dispute will be relatively significant."

So, while it may sound easy to just get on the computer and find out what you can about your job candidates, keeping track of what you've done is a whole other ball game.  One that can be very time consuming and expensive.

5. Potential breach of user agreements

I haven't looked into this issue to any particular degree, but when you sign up as a user of social networking sites you generally have to agree to accept the site's Terms of Use.  You know, those long documents written by lawyers that you scroll through on your computer screen without reading just to get bottom of the page to click "I agree" so you can get going?

Usually these Terms of Use agreements make reference to the fact that as a user you are not to be using the site for commercial purposes.  If you're an employer who has become a user for the express purposes of researching job candidates, you might be breaching these provisions.

There are likely other terms of these agreements that an employer might be in violation of if they choose to use them for background searching, etc.  In other words, you have to be careful.  Just because information may be out there doesn't mean you can use it in the way you wish to.

Parting Thoughts on the Legal Issues

As you can see, there are a number of legal issues you need to consider before embarking on a social networking or online search of a job candidate.  And, as I noted above, these may not be the only ones these are just the ones that seem most obvious from my perspective.  Right now, it is anyone's guess how the courts or tribunals will respond to claims that may be made in the future against employers for conducting these kinds of searches in the hiring process.

The question that's key for you is this:  do you feel the risks of doing social networking and other online searches outweigh the benefits or is it the other way around?  Just because the information may be out there, should you access it?

Still Ahead....Part Three

In Part Three of this series, I'll move from the legal to the practical and set out my thoughts about what, as an employer, you should or should not be doing when it comes to using social networking sites and other online searches in the hiring process.

Between now and then, if you have any thoughts or comments, please let me know.

Using social networking sites in the hiring process: smart move or human rights trap? - Part One

Are you or the organization you work for using or thinking of using social networking sites (such as Facebook or MySpace) or otherwise looking into a potential employee's online presence (Google search, here we come) as a way to recruit the best and the brightest? 

If so, as you'll see below, you're not alone.  But, is leveraging the Internet to find your ideal employee a smart move that saves time and money or is it a human rights trap?  For that matter, are these types of searches just generally more of a legal headache than they're worth?

One of my terrific readers asked me to weigh in on this interesting issue.  And so, today is the first installment in a two-part series where I attempt to tackle it.  I'm not the first to discuss this subject (do a Google search on this topic and you'll find a huge number of news articles and blogs that have covered it, typically American) and I certainly won't be the last.  But, as usual, I'm going to try to look at things from a Canadian human rights law perspective.  Please remember though, my comments are general in nature and should not be taken as legal advice for your particular situation.

In today's post, I'm going to discuss how social networking sites fit within the current recruitment landscape.  

What are Social Networking sites?

Social networking sites are online communites that enable people with shared interests to communicate through a variety of networks.  The sites that I think most people are familiar with or have at least heard of are MySpace, Facebook and LinkedIn.

You gain entry into the sites by signing up and creating a user profile.  Once access is gained to the site, you can then look for people you know.  When you establish a connection with someone, whomever is in that person's network can now see your connection with the person.  On the flip side, you can also see who that person is connected to.

In addition, once you have access to the site you can share photos, videos, comments and more with those you are connected to.  Sharing in this way is easy because you post something once and everyone who you wish to see or access that information can now do so.

Why is there an interest in using Social Networking Sites to Recruit?

Employers seeking to find high quality candidates for job openings know they need to go where those potential candidates are.  And, statistics show that membership in social networking sites is growing exponentially.  For instance:

• LinkedIn has a user base of 30 million professionals world-wide;
• Facebook has more than 150 million active users world-wide; 
• MySpace has 110 million users world-wide. 

For further statistical information on the use of a wide variety of social networking sites, check out this helpful post from the blog Web Strategy by Jeremiah.

Ways Employers are Using Social Networking Sites to Recruit

It appears that employers are using social networking sites in the recruitment process in three ways:

1. to post ads for job openings or to create recruitment-oriented pages;
2. to search for potential job candidates using specific key word searches; and 
3. to screen job applicants by reviewing their social networking information to determine their 'fit' within the organization. 

The first two ways relate to the finding of employees, one obviously being more active than the other. The third way relates to the weeding out of candidates through the discovery of information that doesn't sit well with the employer.  This weeding out phase can presumably at any stage of the recruitment or hiring process: on receipt of a resume, before the interview stage, after the interview stage or subsequent to a conditional job offer being made, with the condition being a clean background check.

Trends

Studies in both Canada and the US indicate that scouring the Internet for information about job candidates is a growing trend:

• Careerbuilder.ca released a survey in December 2008 of 286 hiring managers and human resource professionals in Canada.  The survey indicated employers are looking to use the Internet as a vehicle for finding potential employees.  In particular, 9% were planning to increase spending on recruitment through the use of social networking sites; 
• earlier in 2008, a Careerbuilder.ca survey noted that 12% of Canadian employers were already screening candidates via the Internet on a regular basis while 19% planned to begin using these resources for the same purpose that year; 
• a June 2008 survey of 3,169 hiring managers and human resource professionals in the US indicated that 1 in 5 use social networking sites to research job candidates.  34% found information during their searches that lead them to reject a potential candidate from the selection process.  

Over time, I suspect that the desire to conduct Internet and social networking site searches will only increase as younger recruiters come into the workplace who are very much used to engaging in social networking activity.  Beyond that, they are already 'in the network' to enable access to information employers might be interested in seeking.

What can an employer find out?

The sky appears to be the limit here.  Many social networking sites have fill-in type forms that ask for a whole host of personal information.  Others give you options on what information you wish to make public.

But, just as an example, from my recent foray into Facebook, I could easily have disclosed my sex, age, marital status, sexual orientation, religion and political affiliation without even venturing further than filling out a basic profile.  Once I upload my photo, you can now see my ethnicity and, if I didn't disclose it in my profile beforehand, my sex is obviously apparent.  If I take a step further and upload some photos of my family, now you know I'm married (if I didn't disclose it before) and that I have two children.  So, voila, without thinking much about it, I've disclosed information relating to the protected characteristics set out in most human rights legislation across Canada. 

There is more, though.  Many people don't consider what they say on social networking sites to be 'public' in nature (especially when we're talking about MySpace or Facebook and other more informal sites).  Instead, they see it as a forum to connect with friends.  So, the conversations and disclosures run the gambit. As do the photos and videos. This includes information that may expose potential disabilities such as addictions or physical or mental conditions that people may be contending with and 'talking out loud' about.  More potential protected characteristics.

Just as a general observation -- and this is very general -- my experience being involved in social networking sites so far is that younger users of these sites seem less inclined to compartmentalize their lives into 'public' or 'private', 'online' or 'offline'.  They just 'are' because they've grown up with this stuff.  With that comes postings which might seem, to those who have less or no involvement in using social networking sites, extraordinary or inappropriate.

People who are members on these sites usually do have access to privacy features that limit who can become their 'friend' or a member of their network, and thus, limits who has access to their personal information.  But, there may be those who either aren't aware of or do not know how to access those privacy features.  Others still may choose to ignore those features completely, primarily so their friends can find and connect with them easily.  And, again, you have the prevalent thought that whatever people say or show on these sites is not public in nature.  

But, tell that to a potential employer who hits proverbial pay dirt (positive or negative) when they find you on one of them.

Conclusion - Part One

So that is how the searching of social networking sites and the Internet generally appears to fit within the initiatives taken by employers to recruit what they believe to be the best employees.

Next up, in Part Two, I'm going to discuss the potential legal issues involved in doing these searches and in Part Three I'll talk about ways that may assist in avoiding legal liability.

As always, I'm interested to hear your comments.

When drunkenness and sexual harassment allegations collide: making sense of a messy situation

Sometimes there are cases that cross my desk that make me go "hmmmmm....." and make me pause to think about how I might have responded if personally presented with the same scenario.  Chan v. Pryer, a December 2008 decision of the British Columbia Human Rights Tribunal, is one of those cases.

The Facts

Robert Pryer is a lawyer in BC who hired Maggie Chan to do administrative work for him in December 2004.  At the time, she was only 16 years old.  She did some work after school on weekdays but mostly worked on weekends.

Mr. Pryer had two adjoining offices and worked on a floor in an office building that had 54 shared offices.  As his office was near the kitchen and photocopier for the floor, it was an area where people congregated.  

On December 29, 2006, when Ms. Chan would have presumably been 18 years old, she was called into work at 4pm.  It was the last day of work before the New Years' long weekend.  Due to the time of year, Mr. Pryer had received a lot of alcohol as gifts.  There was socializing going on, with people stopping by Mr. Pryer's office and sharing in some drinks.  By 6pm all of Mr. Pryer's employees, except Ms. Chan, had left.  She remained behind to socialize with Mr. Pryer and share in his alcohol, having completed her work by that time.

Unfortunately, Mr. Pryer and Ms. Chan enjoyed sharing the alcohol a bit too much.  Mr. Pryer was also an alcoholic.  They both proceeded to get very drunk.  At one point, Ms. Chan blacked out and drifted in and out of consciousness.  Both she and Mr. Pryer had little to no memory of many things that occurred that evening.

Ms. Chan did recall, at one point, lying in the hallway and Mr. Pryer asking if he could lie down beside her.  She also recalled her boss running his hands up and down her legs.  Although she wanted to get up, she couldn't.  Eventually, the two of them left together in a taxi.  She said that during the ride, Mr. Pryer put his hand under her shirt and touched her breast.

When Ms. Chan got out of the taxi, around 11:30 pm, she called her friend, Kevin Leung.  He testified at the hearing that Ms. Chan was "really drunk" and she told him that her boss had "felt her up."  A few days later when she called him upset and crying, she asked Mr. Leung if he remembered what she had told him about the night of December 29.   He told her that he did.  Ms. Chan than stated that what she had told him had occurred, that she was having problems handling it and that she wanted to file a human rights complaint.

Another friend of Ms. Chan's, Anna Knowles, testified that a few days after December 29, Ms. Chan told her what had happened with Mr. Pryer.

Ms. Chan never returned to work.  She ultimately filed a human rights complaint with the BC Human Rights Tribunal alleging sexual harassment against her employer.

The Boss' Response

 

Mr. Pryer's response to Ms. Chan's complaint was multi-fold.  First, he said that he drank so much on December 29 that he had no memory of what occurred over a period of several hours.  But, he contended that he did nothing inappropriate.  Second, he questioned the reliability of Ms. Chan's memory given her level of inebriation.  Third, he took the position that whatever occurred that evening was not work-related.

The Tribunal's Decision

Ms. Chan's complaint was ultimately dismissed by the Tribunal for insufficient evidence.  The adjudicator came to this conclusion based on the following:

• Ms. Chan's evidence was unreliable due to her own admission about the amount of alcohol she had drunk that evening and that she was in and out of consciousness;
• what took place between Ms. Chan and Mr. Pryer on December 29 was not "regarding employment," an essential element to find that Mr. Pryer, the employer, had breached the human rights law obligations owed to his employee.  Instead, the adjudicator concluded that during the period of time Mr. Pryer and Ms. Chan were drinking and socializing, their interaction was no longer that of employer-employee.  In coming to this determination, the adjudicator pointed out that:       
  • Ms. Chan had finished her work by the time she and Mr. Pryer began drinking;
  • she remained behind while all other employees left; 
  • she stayed because Mr. Pryer had alcohol.        
• the only evidence to establish that Mr. Pryer's alleged inappropriate conduct was unwelcome (another necessary element to prove sexual harassment) was from Ms. Chan whose memory of the evening was spotty at best.

 

Thoughts on the Case

So, are you getting that "hmmmm...." feeling too?  

This is a messy situation to put it mildly.  Imagine if you were the in-house investigator called in to investigate a situation like this in your workplace.  How would you deal with the evidence?

You have a very small workplace.  Headed by a lawyer.  You have a young administrative assistant.  You add in some alcohol.  Although not mentioned in the decision, there's potentially some underage drinking here given that my recollection is that BC's legal drinking age is 19.  Socializing and drinking occurs in the physical workplace.  An incident of inappropriate touching is alleged to have occurred.  Then, external to the workplace, in the cab ride home, another incident of inappropriate touching is said to have occurred.  Throw the male friend into the mix.  He says she called him the night this all occurred and said her boss "felt her up."  A few days later, she calls crying.  Is it regret talking now?  Or the fact she can't remember everything that happened?  Or did something inappropriate really occur?

Do you think there was enough evidence to prove sexual harassment related to employment here?  Or, are you completely onside with the adjudicator's decision?  Are you going "hmmm...?"  

What would you do in the face of racist comments in your workplace?

A study on racism by researchers at the University of British Columbia has shown that when directly faced with racism, people tend to react with indifference.

Participants in the study (120 York University students) were exposed to the following:

They think they are waiting for an experiment to begin.  The experimenter walks into the room and introduces two men -- one black, one white -- posing as fellow participants. After the experimenter leaves the room, the black man stands up, says, "Oh, I forgot my cellphone," and gently bumps the white man's knee as he walks out.

The white man either says nothing, or, "Typical, I hate it when black people do that," or, in the "extreme slur" condition, "clumsy nigger."

Other groups didn't actually experience the event, but they read about it or watched it on a video, and then were asked to predict how they would feel, and which man they would choose as a partner for a later anagram task. 

Although the study's participants were multi-racial, Black participants were not included because the researchers wanted to see how people who didn't belong to the target group at the heart of the study responded to racial slurs.

As noted by the National Post article describing the study:

• People who didn't experience the racist comments were much more likely to say that they would be upset by the white worker's slurs, and that they wouldn't work with him. 
• Students who actually experienced the event were less upset, scoring significantly lower on a "negative emotional distress" scale.
• When no racist slur was made, people didn't differ in their choice of the white (53%) versus black man as their work partners. When a racist comment was made, people showed a slight preference (63%) for the white man.

While I'd like to say the results of the study surprised me, unfortunately, I can't.  Racism is still alive and well in Canada and is behavior that, for some reason I just don't understand, is still seen by some people as "acceptable."   Situations of overt racism, such as the example noted in the study, are certainly not commonplace as they once were many years ago.  But, they do happen.  And, subtle racism, in its many forms, persists throughout society.  

But, let's step back a minute and think about placing ourselves in the shoes of the study's participants. Let's assume the situation happened at your place of work.  What would you do?  Would you be indifferent or would you speak up against what your co-worker said?  If you were a manager, would you step in and correct the employee for the comment made or just let it lie?  Would you be so taken aback that you wouldn't have a clue how to respond?

As a general rule, I think people are conflict averse.  From an organizational perspective, that goes equally for employees as it does for the higher-ups.  And so, maybe you might not be prepared to respond immediately after you hear comments like the ones heard by the study's participants.  And, perhaps even more so if this occurred in a "public" place like the company lunch room.  But, what about taking the person aside and expressing your concerns? 

But then, what the heck do you say?  For many well-meaning people, that's such a kicker that they will simply avoid saying anything at all.  And that's what allows racism to persist and invade our workplaces. 

Scenario-based training and providing employees and managers with scripts to get them through these kinds of situations can help immensely.  Get people to effectively memorize the scripted response to a racist comment and equip them with the ability to find the words to react appropriately should they ever be faced with a situation like the one the study's participants found themselves in.  Knowledge is power, as they say.  If you equip your organization's personnel with the knowledge of how to spot and address racist comments and/or behavior, you can stop racism in its tracks and prevent it from poisoning your workplace. 

What steps have you taken in your workplace to nip racist comments or jokes in the bud?