Human Rights in the Workplace

Twitter talk - November 27, 2009

It's been a while since I've posted about the talk on Twitter but there have been a lot of interesting articles and posts I've been mentioning that I thought readers of this blog would want to know about.  Here goes:

Does the Cdn legal profession discriminate against 'visible minorities'? http://chilp.it/?bb431e

Ideas on creating accommodating wkplaces for older workers. http://chilp.it/?398b29

Great advice on valuing diversity in the workplace. http://chilp.it/?b77bb9

Ontario employers still hesitant to hire people with disabilities http://chilp.it/?f46997

Does your workplace suffer from 'gender fatigue'? http://tiny.cc/aFGyW

Insurer stops paying disability benefits over Facebook photos. http://chilp.it/?aebd9a

By age 9, children aware of racism, affected by it http://chilp.it/?397a52

Guideline on Accommodating Students with a Disability helping in New Brunswick http://chilp.it/?f239d7

 

Happy reading! 

 

 

Pregnancy discrimination in the workplace still a very live issue

In a recent Globe and Mail article discussing a similarly recent decision of the Human Rights Tribunal of Ontario relating to a young woman who had been fired by her employer after finding out she was pregnant, the following advice was given:

"...it's wise for women to think strategically about when to disclose a pregnancy to employers.."

  Photo credit:buzzybee

One would think that we're past the point where, in addition to worrying about getting to that all-important first trimester before we normally feel comfortable enough announcing our pregnancy to the world, that women have to think critically about when to announce their pregnancy to a potential or current employer.  But, sadly, that's not the case as is highlighted by the tale of Jessica Maciel v. Fashion Coiffures Ltd. and Crystal Coiffures Ltd..

After graduating from a business college, Ms. Maciel, at age 20, applied for a full-time receptionist position with two related hair salons.  This was to be her first full-time job.  At the time of her application, Ms. Maciel was four months pregnant.  She made no mention of her pregnancy either at the time she applied for the job or upon being offered the job.  Unfortunately for her, though, she was fired the same day she started.  The employee claimed she was let go after experinencing nausea and disclosing her pregnancy to the person training her.  The employer claimed it was unaware that their new employee was pregnant when her employment was terminated.  Instead, the employer said that Ms. Maciel had indicated during her first day of work that she no longer wanted to work full-time.  This was a game-changer from the employer's perspective, as it needed someone to work day shifts during the week and contended that there was no part-time work available.

The Human Rights Tribunal of Ontario did not, however, buy what the employer was selling, primarily because the employer's defense of Ms. Maciel's termination lacked credibility.  The Tribunal honed in on a number of problems with the employer's position, the key ones from my perspective being as follows:

• the employer failed to put forward a credible reason why Ms. Maciel, having applied for and accepted a full-time position, would propose working part-time on her very first day of work when she was no longer in school and had no restrictions on her ability to work full-time;
• the employer's contention that Ms. Maciel requested part-time work did not make sense in light of the fact that: 
• • the employer admitted it did not ask any questions about when and how many hours Ms. Maciel might be able to work yet apparently promised her that it would find out if other salons in the same mall were looking for a part-time receptionist.  The Tribunal questioned how this would be possible when the employer had no information about Ms. Maciel's availability to give these other salons;    
  • Ms. Maciel would have needed to work at least 30 hours a week between her start date and her due date in order to be eligible for Employment Insurance benefits;    
  • the employer shredded Ms. Maciel's employment contract yet took the time to outline in a letter to her post-termination that there was no part-time position available and specifically set out which hours Ms. Maciel was expected to work.  The Tribunal found this letter to be "carefully constructed" and consistent with Ms. Maciel's assertion that she received it after advising the employer that it was discriminatory to fire someone because they were pregnant and making a request for a copy of her contract.    

After Ms. Maciel was fired by the salons she attempted to find other work.  But, interestingly, as her pregnancy was far more visible at this point, she found herself unable to obtain further employment. 

In the end, the Tribunal ordered the salons to pay Ms. Maciel $15,000.00 in general damages, $20,719.00 in lost wages and benefits (due to her inability to claim EI benefits) plus applicable interest on those amounts.  The salons were also ordered to jointly prepare a written policy detailing accommodations to be made to pregnant employees and maternity/parental leave practices that would apply post-birth.

Business (in)convenience does not trump human rights protections

Given some conversations I have had in the past, I know that there are likely some employers who will read this decision and think that it is completely unfair to the business owner.  They will say that it was inappropriate of Ms. Maciel to fail to disclose her pregnancy when she applied for the job. They will say that they had the right to know she was pregnant given that they were hiring someone to do a particular job for the foreseeable future, without having to look for another replacement a few months down the road.  They will point out the costs and time involved with hiring and replacing employees, and the business limitations associated with needing to keep a comparable position open for a female employee to return to after completion of her maternity leave.  Others will say that Ms. Maciel was fired during what could be considered her probationary period so the employer was fully in its rights to terminate her for any reason.  [And, just in case you're wondering, I've heard these concerns being raised by female business owners as well as from male business owners -- keep in mind, too, that in the Maciel case, she was fired by, you guessed it, a woman].

While I certainly understand these arguments, particularly when the business in question is relatively small and subject to a potentially greater impact whenever any administrative challenge arises, if these arguments were allowed to win the day women would simply disappear from the workplace -- once again.  The major problem with these arguments is they are all predicated on a model of business convenience (or inconvenience, depending on your perspective).  And the problem with the model of business convenience is that it will never be convenient for any business to employ anyone who gets pregnant and has to temporarily leave the workplace -- which, coincidentally, only impacts women.   These arguments also suffer from a fatal logical flaw.  Whenever any employer hires any person, regardless of sex, there is never a guarantee that that employee is going to work out or that the employee is going to remain in the workplace without interruption.  Beyond that, you should know that human rights protections apply regardless of whether you are a job applicant, a new hire or a long-time employee of a business.  There is no "pass" on human rights law obligations during a person's probationary period or otherwise.

Strategy is the best policy -- unfortunately

Ms. Maciel might have been the best darned employee the salon owners in this case had ever hired. Instead, not only will the salons never find that out but they are now faced with having to pay a large damage award and recovering from a huge public black eye associated with the negative publicity following from the Tribunal's decision.  Keep in mind that this is a workplace where it appears women predominately work and I would presume is a business frequented by female customers.    

It turns out that applying strategy in disclosing a pregnancy is still, in fact, the best policy for a woman to adopt when applying for a job or when already gainfully employed.  It's, unfortunately, a lesson that even today Ms. Maciel had to learn the hard way.

 

 

 

   

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.

Photo credit:

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.