Human Rights in the Workplace

Fact versus fear: how employers should respond to H1N1 in the workplace to avoid human rights violations

Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu.  The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service.  The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission.  Time will tell how this case ultimately resolves itself.

While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace.  I thought it might be useful here to let you know what I said and expand upon my comments a bit further:

What is H1N1?

Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu").  This virus can, however, make people sick as well.   It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.

How do I deal with H1N1?

1.    Operate based on Fact versus Fear

When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear.  This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical.  The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law. 

In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak.  Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.

 

2.    Assume that H1N1 constitutes a disability under human rights legislation

Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability.  While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration.  H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light.  Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003. 

It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability.  A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness.  Consider, for example, the man who was barred from the restaurant.  He did not have H1N1, his wife did.  Yet, the restaurant seems to have treated him as though he had the disease.  The H1N1 label had an effect on him anyway.  A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.

In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis. 

3.    Uphold your human rights-related responsibilities to all employees impacted by H1N1

The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.  

Employers must ensure that their workplaces are free of discrimination and harassment.  This means that they need to:

a.    make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1.  In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions.  Here, you would want to follow the lead of public health officials and medical professionals;

b.    make sure that you take appropriate steps to accommodate employees who are disabled by H1N1.  What type of accommodation will be reasonable will depend on the circumstances.  It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;

c.    make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same.  People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness.  This can result in harsh treatment of their colleagues.  Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior. 

Conclusion

While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last.  I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.

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

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

PBS investigation targets teen sexual harassment at work

Tomorrow (Friday Feb 20), PBS will be airing a special investigation report about the sexual harassment of teens in the workplace (if you click the link you can see and hear a video preview of the special).  Although the report details the stories of young women in the United States, the subject of teen harassment in the workplace is just as topical in Canada. 

According to the PBS site, the report:

"..tracks the journey to justice for teens [like those whose stories are documented in the show] and examines how the issue impacts hundreds of thousands of teenagers across the country -- many of whom don't know how to report workplace abuse, or to even recognize when their bosses cross the line."

While I don't have any statistics in hand to indicate the prevalence of teen sexual harassment in the workplace in Canada, certainly, human rights commissions in this country have it on their radar screen.  The Manitoba Human Rights Commission, for example, has targeted youth for a number of years now by holding annual Youth Conferences designed to ensure youth in Manitoba are adequately educated about what their human rights are and how to go about enforcing them.  Moreover, the Commission has on its website a useful publication entitled "The Rights of Youth: On the Job" which details, among many other issues of importance to youth, how to recognize harassment and what to do if it is being experienced in the workplace.

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?  

2008 CLawBie winners announced

Steve Matthews has rounded up the nominations and finalized the results of the 2008 Canadian Law Blog Awards (affectionately known as the CLawBie's).   I'm honored to find myself amongst great company once again, this time as a runner-up in the Best Practitioner Support Blog category. 

It feels very good to know that other lawyers are finding the topics I discuss on my blog to be of use to them.  I know I learn something new virtually every day from the many law blogs I follow. The more knowledge, as a profession, we can share amongst ourselves and our broader readership, the better it is for the people and businesses we serve!     

Here's wishing each and everyone of you a Happy New Year!  

Human Rights in the Workplace now on Alltop!

Ok, so I lied about my last post being my last post for 2008.  Just got the news that my blog has been picked up by Alltop and it was exciting enough for me that I couldn't wait to share it. 

For those unfamiliar with Alltop, it is best described as an "online magazine rack" which gathers all of the top (hence the name Alltop) news websites and blogs from across the web every hour and aggregates them under various topic headings.  It makes for very easy finding and reading of information you are interested in -- all on one page.  It's like being at the grocery store and having the ability to scan all of the headlines while you're waiting to pay...except you don't have to read about how Brad Pitt and Angelina Jolie are pregnant again if you don't want to.  Here's some further information about Alltop, if you're interested.

My blog is located under the Law topic (yes, I know, you never would have guess that one).  Just scan to the bottom once you click on the link.  Happy reading!  

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.

Wading into the 'abolish Human Rights Commissions' argument: My Law is Cool interview

Recently, along with human rights lawyer Pearl Eliadis, I had the opportunity to be interviewed via podcast by Omar Ha-Redeye over at the Law Is Cool Blog and Podcast regarding recent media criticism of Human Rights Commissions across Canada.  Here's a full reproduction of the blog post referencing the interview (I don't usually do this but since they did such a good job setting things out, why reinvent the wheel?):

If you have been following magazines and blogs for the past year, you are probably aware of the human rights and free speech controversy involving Mark Steyn and Maclean’s. Starting in 2005, Maclean’sran a series of articles by Steyn and Barbara Amielwhich, according to a group of Osgoode Hall law students, cast Muslims in a dangerously negative light. Frustrated, the students asked the magazine to provide space for them to write a 5,000-word rebuttal article. After the Editor-in-Chief refused, the students filed a human rights complaint against the magazine with the Ontario Human Rights Commission.

What came next can only be described as a firestorm of controversy in the media. A number of journalists and media outlets cried foul, arguing that Human Rights Commissions were being used to impose political correctness on the media creating a chilling effect on free speech. Former Western Standard publisher Ezra Levant took up the cause, as did a number of editorial boards across the country. The intense media criticism of Human Rights Commissions soon caught the attention of federal politicians, with Liberal MP Keith Martincalling for the repeal of hate speech provisions from federal human rights law. A vicious war has erupted on the blogosphere; several prominent figures in the controversy have received death threats via email and in blog comments. Neo-Nazi websites have openly advocated for the execution Richard Warman and other human rights lawyers.

In this episode of the Law is Cool Podcast, Omar Ha-Redeye attempts to cut through the media spin to find out what Human Rights Commissions really are and how they work. Omar interviewed two experienced human rights lawyers to get their views on the current controversy.

The first is Montreal-based international human rights lawyer Pearl Eliadis. She argues that the media coverage of the Human Rights Commission controversy has been unbalanced. She claims that Canadians are being “lied to” about the role of Human Rights Commissions and the character of freedom of speech in Canadian law. She recently wrote an article in Montreal’s Maisonneuve magazine called “The Controversy Entrepreneurs”. In that article, she seeks to dispel seven “myths” surrounding the controversy, including:

1. Free speech is an absolute right.
2. Human rights laws were not made to restrict speech.
3. Human rights laws only apply to discriminatory conduct, not discriminatory speech.
4. Human rights laws do not apply to the media.
5. Human Rights Commissions dispense “parallel justice,” “prosecuting” and “convicting” people outside of normal legal channels.
6. Human Rights Tribunals are rabid, out-of-control bastions of political correctness with 100% conviction rates.
7. Free speech is under attack by frivolous, expensive, time-consuming complaints.

Eliadis deconstructs each of these myths and argues that Human Rights Commissions play a valuable role in the protection of all human rights, including freedom of speech. In her interview with Omar, she notes that it is unfortunate that many involved in this controversy have sought to paint the law students who brought the original complaint with the same brush as radical Islamists. In this sense, she says, an equality-seeking group has become further marginalized by bringing forward its complaint. She notes that the Commissions have characterized Mark Steyn’s writing as inaccurate, fear-mongering, and lacking in objectivity.

Ultimately, Eliadis believes that journalists such as Steyn and Levant who attack Human Rights Commissions are doomed to fail. Since some of the people who support the abolition of these Commissions have links to white supremacy groups, Eliadis believes that any such project will likely fail.

Next, Omar interviewed Donna Seale, former Co-Counsel for the Manitoba Human Rights Commission. Seale currently runs a consulting business in Winnipeg that provides educational seminars for employers on human rights issues relating to employment and the workplace. Her blog, generally updated on weekly basis, is clearinghouse of workplace human rights information.

Seale notes that Human Rights Commissions serve in a “gatekeeper” capacity to try to resolve complaints before they proceed to an expensive and time-consuming tribunal process. She believes that the Commissions are valuable because they are less adversarial than tribunals and their goal is to resolve conflicts quickly and amicably between the parties.

Seale also argues that it is a mischaracterization to portray the Commissions as guardians of political correctness that have a chilling effect on speech. Indeed, she claims that hate speech-related cases are extremely exceptional. She says that most of the cases heard by Provincial Human Rights Commissions relate to discrimination in employment, services, and housing. She rejects the argument that Human Rights Commissions should be abolished because they “do no good.”

In Seale’s consulting business, she seeks to help both employers and employees understand their roles and responsibilities in terms of meeting their human rights law obligations in the workplace. She believes that litigation can be avoided if both parties work together to understand their respective roles in terms of human rights.

If you're interested in listening to the actual podcast, head over to the Law is Cool postand scroll to the bottom.  You'll see the podcast there for download.

Disability complaints still dominate Manitoba Human Rights Commission's case load

The Manitoba Human Rights Commission has released its annual report for 2007 and it illustrates that complaints based on physical or mental disability continue to dominate the various types of complaints received by the Commission each year.  As noted by the report:

• 41% of the formal complaints filed with the Commission in 2007 were focused on the grounds of physical or mental disability.  That's over double the next closest category of complaints --sex (including pregnancy) at 19%, followed by ancestry/ethnic origin at 17%.

Some other interesting stats for employers:

• of the formal complaints filed in 2007, 150 of the 274 complaints alleged discrimination while 79 alleged a failure to reasonably accommodate;
• and the kicker -- 68% of all formal complaints filed in 2007 were against employers.

I'd recommend you have a look at the report, in particular pages 10 through 15.  That's where you'll find summaries of select cases that were either resolved or went to adjudication in 2007.  I find that when you read through actual 'real life' situations, that's where the learning is to be had.  Read where other businesses or organizations went wrong and avoid doing what they did.  Your employees and bottom line will be happy that you did!

Exotic dancer alleging age discrimination

CBC News is reporting that a woman from Ontario is alleging she was fired from her job as an exotic dancer on the basis of age.  She has proceeded to file a complaint with the Ontario Human Rights Tribunal.  The woman in question, Ms. Ouwroulis, is 44, and contends that her employer advised her that her time working for the strip club "was up" because the club was "going in a new direction with younger girls."

As is noted by the article, this complaint is a novel one for more than just the fact that it's a complaint involving a less traditional area of employment.  Here, the employee alleges she was fired not because she was too old to do the job per se (she's still seemingly capable of dancing and she makes no mention that her employer questioned her abilities to dance), but that because of her age she no longer exuded the appearance or the appeal that the club was wanting its dancers to portray.

If Ms. Ouwroulis can put forward sufficient evidence to show she was fired because of her age, to defend against the claim it will be up to the employer to, in effect, argue that age is a bona fide job requirement.  To do that in this case will require the employer to connect appearance and sexual appeal to age in the context of the type of work Ms. Ouwroulis was hired to perform.  Not so easy to connect-the dots here for the employer, I don't think.

Remember that an employer can't succeed to defend against a discrimination complaint on the basis of conjecture.  While your reaction to reading this news might be -- well of course patrons of strip clubs want to see younger women -- do they?  How do age and sexual appeal intersect anyway?  And, from whose perspective will the employer argue its case?  The owners?  The patrons?  Which patrons?  Will they get into an analysis of Ms. Ouwroulis' take-home pay (tips included!) relative to other younger dancers?  Does take-home pay in this industry equate with sexual appeal?  What is 'younger' anyway in this context?  When do you get set out to pasture?  35? 30? 25?

Leaving aside the type of workplace from which this complaint arises, the context of the complaint is interesting as it, I think, goes to the more general concept of societal views of the sexuality of women.  Look at the movie industry, for example, and the contention of female actors that after 40 they tend to get the 'mom' or 'grandma' roles.  Or magazine articles that mention how good a woman looks 'at her age', which is usually post-40.  Ok, ok, so maybe this case has got my brain a little too engaged.  But, hey, you can't blame a gal who is looking 40 in the eye! 

If you have any thoughts about this complaint, please leave a comment in the comments section.  I read all comments I receive and try to respond to every one as well.  It's through discussing the concepts and cases that we all learn!