Human Rights in the Workplace

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.

 

 

 

   

Lack of accommodation on return to work has food service company eating crow

In Tofflemire v. Metro (Windsor) Enterprises Inc., the Human Rights Tribunal of Ontario examined the efforts made by a food and drink services company to accommodate a long-serving employee upon his return-to-work after having a heart transplant.  The Tribunal determined that the company's efforts were woefully inadequate and awarded damages to the employee as a result.

The Facts

Mr. Tofflemire began working for Metro Enterprises in 1981.  His work involved driving a mobile catering truck on designated routes selling food and drinks at construction job sites.  Mr. Tofflemire also happened to have a history of heart-related problems and required modification to his job from April to September 2006, which the company provided. 

In mid-September 2006, Mr. Tofflemire left work to have a heart transplant, which ultimately took place in June 2007.  While he was recovering from his surgery, Mr. Tofflemire maintained contact with his employer and Metro expressed the desire to see their employee return to work. 

In March 2008, Metro wrote to Mr. Tofflemire's doctor asking him to identify which functions of the mobile catering job Mr. Tofflemire could perform.  The doctor advised that the employee would require a modification to his duties that would limit him from lifting no more than 10-15 pounds initially but then Mr. Tofflemire could increase the lifting weight as he was able to tolerate it.  Further, the doctor recommended the following return-to-work schedule:

• initial return-to-work for 2 hours per day for one month;
• move to four hours a day for a further month until Mr. Tofflemire was able to work a full eight hour day.

Mr. Tofflemire returned to work on April 7, 2008.  He worked two hours a day for one week in the stock-room.  He next returned to work on June 9, 2008 and worked in the stock room for two hours a day for a period of two weeks.  The employer then took the position that there was no further available work for Mr. Tofflemire in the stock room. 

So, Mr. Tofflemire expressed a desire to be transferred to the company's vending machine division which would involve supplying food and drinks to vending machines at a number of locations. He held the view that the vending machine position would be less stressful than his catering truck position.  There were six permanent jobs in the vending division, all filled by long term employees.  There was, however, a summertime replacement position held by a person who was hired at the beginning of the summer of 2008 and, given Mr. Tofflemire's seniority, he knew he could bump this person.  Mr. Tofflemire was fully aware that this was a temporary position but he was prepared to do the job for that temporary time period and then resume discussions with Metro about how he could be accommodate further after the job ended.  Mr. Tofflemire obtained a letter from his doctor stating that by the end of June 2008, he was medically cleared to work a 7 hour day.

In early July 2008, Mr. Tofflemire met with his employer to discuss his return to work.  During the meeting, Mr. Tofflemire said he was told by the company's President that the vending division had no job for him and that he would have to go back to the catering division.  The President recalled that the company had, instead, asked Mr. Tofflemire to provide a functional analysis form to indicate he was capable of carrying out the job functions of the vending position but this was never provided.  Mr. Tofflemire denied being asked to complete such a form.

On July 27, he filed a grievance alleging that the company had not reinstated his employment even though he had been cleared to return to work by his doctor.  The next day, the company wrote to Mr. Tofflemire offering him a customized seven hour per day mobile catering route.  During the grievance process, the company indicated that they did not want to assign Mr. Tofflemire to any position in the vending division.  Ultimately, the union concluded that Metro's job offer of the modified catering position was reasonable in the circumstances.

On July 31, Mr. Tofflemire wrote to his employer to say he would consider the proposed job offer after seeing his doctor on August 5 and that he would be in contact with them the week of August 11.  On August 5, Mr. Tofflemire's doctor wrote to Metro advising that Mr. Tofflemire should neither take on a job that required 10 hour days nor should the job involve long periods of exposure to the sun (as long exposure to the sun increased the risk of skin cancer in transplant patients).

Subsequently, the company's President met with Mr. Tofflemire's union representative.  But, the President simply advised that transfers between divisions were not possible.

On August 18, 2008, the employer wrote to Mr. Tofflemire to state that they had not heard anything from him.  They advised that they were taking his lack of response to mean that he had turned down their job offer, was no longer seeking his job, seniority or other rights and, as a result, they considered his file to be closed.  Metro did not, however, take steps to formally sever Mr. Tofflemire's employment after sending this letter and at no point issued a Record of Employment.

Mr. Tofflemire alleged that Metro Enterprises and its President, in his personal capacity, discriminated against him in employment on the basis of disability in that it failed to provide him with reasonable accommodation when he sought to return to work following his surgery.  He also contended that the failure of Metro to issue a Record of Employment was also discriminatory as it deprived him of his rights to collect termination and severance pay under Ontario's Employment Standards Act.

The company and its President asserted that its July proposal to have Mr. Tofflemire return to a modified mobile catering route position was reasonable accommodation.  It was Metro's view that the job had shortened hours (7 hours), was less stressful and although it required Mr. Tofflemire to be outside that did not necessarily mean he would be exposed to an undue amount of sun as he could use sunscreen, wear protective clothing and park his truck in a shady area.  The company, in essence, argued that it would be an undue hardship for it to place Mr. Tofflemire in the vending division.  It was pointed out that transfers into the vending division had become less attractive over time because layoffs from the vending division would be done on a seniority basis and someone coming into that division could lose their job if they were junior to current members in the vending division (due to the vending division operating under a different collective agreement).  Concern was expressed that existing vending division employees might come to resent the accommodation of Mr. Tofflemire in that division.  The company noted that it was also at the point of downsizing the vending division from six to three positions.  Finally, the company took the position that there was a general economic downturn that was impacting the company's financial status and if they had to create another position in the vending division to accommodate Mr. Tofflemire, it would have cost $53,000 in salary at a time when the company was losing money. 

The Decision

The Tribunal concluded that if the company had not received the August 5 doctor's letter indicating that Mr. Tofflemire needed to avoid long term sun exposure, this complaint would not have succeeded.  The Tribunal indicated that as the proposed mobile catering position included modifications regarding the length of hours to be worked (reducing them from 10 hours to 7) coupled with changes to decrease the stress of the job it would have, absent the doctor's letter, met the duty to accommodate.  But, the doctor's letter was found to have changed Mr. Tofflemire's circumstances and required the company to re-examine its accommodation proposal.  However, after receiving the August 5 doctor's letter, the Tribunal determined that the company did little to reconsider its position, failed to meet with Mr. Tofflemire and, instead, wrote its August 18 letter saying they were closing his file. 

According to the adjudicator:

"...the respondents did not want to reconsider whether their offer of a modified catering job was reasonable or to reconsider the applicant for any position in the vending division because they believed this might entail further difficulties for them.  I believe that they felt their best strategy to manage the situation was to end the discussion on accommodation with the applicant, as demonstrated by their August 18 letter."

The Tribunal rejected the company's argument of undue hardship pointing out that all of the concerns that had been raised related to a permanent transfer of Mr. Tofflemire into the vending division.  However, Mr. Tofflemire was only seeking to be considered for the temporary summer job available in that division.  The company had not raised any undue hardship issues relating to that proposal.  Concluding that the company and its President had made inadequate efforts to reconsider the ability to accommodate Mr. Tofflemire in light of the August 5 doctor's letter, the Tribunal pointed out:

"A reasonable accommodation in these circumstances could well have been to place the applicant in the temporary summer position.  It is true that this would have only been a short term solution but it was an alternative the respondents did not meaningfully pursue after receiving the August 5 letter.  In taking no substantive action the respondents failed both in terms of procedure and substance to meet their duty to accommodate the applicant." (emphasis added)

In terms of remedy, the Tribunal ordered that the company and its President pay Mr. Tofflemire $7,500 in general damages and, in addition, lost wages.  The company was also ordered to resolve his employment status and provide any entitlements under the Employment Standards Act.

What to take from this case:

The Tribunal's decision is a great reminder to employers that the duty to accommodate employees is an ongoing one.  If there is a change in an employee's circumstances, an employer must reexamine the accommodation that has already been put in place for the employee or that has been proposed in order to determine whether it meets the revised needs of the employee.  A failure to do this can lead to a finding that reasonable accommodation has not been provided. 

Knee-jerk reactions to an employee's accommodation proposals should also be avoided.  To be able to successfully assert undue hardship associated with an accommodation request, you must be able to show why that particular request cannot work.  Here, the company appears to have either consciously or subconsciously avoided examining what the employee was actually seeking due to a desire to avoid any movement into that division whatsoever.  (Have a look at my prior post on what undue hardship is for further information).

Additionally, at the risk of sounding like a broken record, I cannot stress enough how critical it is to have a written procedure in place in your workplace relating to the duty to accommodate.  Properly written, it should spell out all of the steps that should be taken by an employer whenever a request for accommodation is made by an employee or a change in the employee's circumstances occurs.   Such a procedure, properly followed in all circumstances, would help an employer avoid missteps the likes of which occurred here.

Lastly, note here that the company's President was found, in his personal capacity, to be liable for what happened here and jointly responsible with the company for paying damages to the employee.  As the President was intimately involved with discussions with Mr. Tofflemire and his union relating to accommodation, and he was the operating mind of the company, it was well within Mr. Tofflemire's right to name the President as a personal respondent to his complaint and within the Tribunal's jurisdiction to make a finding specifically against him.

(Image by linder6580)

Twitter Talk - August 24, 2009

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

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

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

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

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

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

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

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

 

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.

New drug testing publications of assistance to employers

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

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

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

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

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!

Where are all the employees? Lessons from the dance floor.

In a given year, through the courses I teach for the Manitoba Human Rights Commission and the courses I'm hired to teach in-house at various workplaces I am privileged to get to share the things I know about workplace human rights law to hundreds of people.  But, when I sit back and think about the make-up of those attending the courses, I would hazard a guess that 99% of them are managers, human resource consultants or union representatives. 

Very few people who attend my courses are employees.  Sure, there is the occasional employee who will come to my Commission courses.  Usually, it is an employee who is wanting to learn what their legal rights are in relation to a difficulty they feel they are encountering with an employer.  But, for the most part, it's just people from the employer side of the equation.  Certainly, I have yet to encounter an employee (and by that I mean non-management, non-human resources) at any of the in-house sessions I teach.

During a session on Reasonable Accommodation that I recently conducted for a very astute group of human resource consultants, a comment was made that some employees make it extremely challenging to accommodate them because they expect exactly what they want versus what the employer can reasonably provide.  That started heads nodding around the room.  So, I asked whether any of the employees in their particular workplace had received training on what their legal obligations were in the accommodation process.  The nods turned to no's. 

For the accommodation process to work as it is intended, employers and employees have to work together to come up with a solution to an accommodation need.  But, if only employers know what the law says, it leaves employees at an informational disadvantage.  Whenever inequity exists, problems arise.  It's like watching those contestants on So You Think You Can Dance and one partner knows how to tango and the other doesn't.  During their practice sessions, the two dancers are never on the same page.  One shows confidence and makes their moves effortlessly because they know what to do while the other stumbles and looks awkward, completely out of their element.  It's not until the awkward dancer is taught the proper footwork that the dancers work as a team, glide across the floor and get the job done.

So, my question to you is this:  do your employees know the footwork?  Do they have a sufficient grounding in what the duty to accommodate is all about -- for all of the "dancers" in the workplace?  Education should be a two-way street if employers don't want to encounter trip-ups on the accommodation dance floor.

I'd love to hear from you about what you do in your workplace. 

Tribunal approves employer's religious observance accommodation policy

In Markovic v. Autocom Manufacturing Ltd.the Ontario Human Rights Tribunal was recently asked to review Autocom's Procedure for Accommodation of Religious Observances ("the Policy") to determine whether it was in keeping with obligations under human rights legislation and applicable case law.  The case involved an employee, Savo Markovic, a member of the Serbian Orthodox Church, who wished to take time off to observe Eastern Orthodox Christmas on January 7.  While Autocom provided all of its employees with two days of leave with pay to observe the Western Christian holidays of Good Friday and Christmas Day, it did not extend two days of paid leave to non-Western Christian observant employees requesting time off for religious observances.  Instead, Autocom's Policy incorporated a "menu of options" which employees requesting time off work to accommodate religious observances could select from.  The options provided to employees included the ability to make up time missed, switch shifts with another employee, have their schedule adjusted if the employer was able to do so, use paid vacation or take a leave of absence without pay.  The Policy expressly indicated that the employer was to accommodate to the point of undue hardship and extended to employees the ability to appeal any decision made regarding their request for religious accommodation.

The Ontario Human Rights Commission contended that the Policy was insufficient in that it failed to provide employees with an option of taking up to two days of paid leave for religious observance (initially the Commission took the position that Policy ought to provide employees with the two paid days as a first-instance option unless the company could show undue hardship but they backed away from that at the hearing).  In the Commission's view, a work calendar that paid employees for not working on Christmas and Good Friday, but not for other religious holidays, had a discriminatory impact on members of non-Western Christian (ie. minority) faiths.  The Commission also took the position that the menu of options approach in Autocom's Policy imposed an unfair burden on employees who wished to take time off for religious observances as it, in effect, required them to negotiate with the employer for time off rather than simply having time off provided to them such as in the case of Western Christians (who were given Good Friday and Christmas off, with pay, without such negotiation).

Noting that Autocom's Policy provided a process for employees to arrange for time off for religious observances through a range of options, including scheduling changes, without loss of pay, Adjudicator Sherry Liang concluded that the Policy satisfied legal requirements.  Of particular interest, are the following remarks and findings made by Adjudicator Liang:

• although Christmas Day and Good Friday originated as Western Christian religious observance days, over time they have become secular pause days;
• a work schedule that permits observant Christians time off to celebrate Christmas and Good Friday but requires work on holy days of other religions is discriminatory in effect and the duty to accommodate concerns searching for a solution that permits time off for religious observances, without adverse employment consequences, to those of other faiths;
• after reviewing the key legal decisions in the area of workplace accommodation of religious observance, she concluded that none of them require an employer to provide non-Western Christian employees with two paid days of leave in order to meet its human rights law obligations.  Although she recognized that what constitutes reasonable accommodation must be examined in light of the particular circumstances of each case, it was her view that the provision of options for time off through scheduling or related changes with no pay loss can be sufficient for an employer to discharge its duty to accommodate religious differences.  So, in this case, Autocom was not required to provide the two paid days off suggested by the Commission either as an initial form of accommodation or as an option at all;
• she found the adjustment to work schedules as an appropriate form of accommodation to be consistent with the Supreme Court of Canada's recent decision in Hydro-Quebec which indicated that the duty to accommodate is to co-exist with the regular contract of employment.  In other words, permitting scheduling changes without loss of pay enables an employer to continue to obtain the services it requires of all of its employees while still enabling all employees to observe their particular religious holy day(s);
• she found the Policy's menu of options for religious accommodation to be consistent with the individualized nature of the duty to accommodate and supportive of autonomy of choice, as expressed by the Supreme Court of Canada's decision in McGill University Health Centre.  On this point, Adjudicator Liang rejected the Commission's concern about the Policy imposing an undue burden on employees who needed to request accommodation under it. In her view, the accommodation process, by its very nature, ought to be a dialogue between employer and employee and there was nothing burdensome about the possibility that negotiation might be required to reach reasonable accommodation.

The Autocom decision is a useful one for employers.  It certainly sheds light on what is required of employers in regards to the accommodation of religious observances in the workplace.  But, it also illustrates the impact recent Supreme Court of Canada jurisprudence may have for employers now and in the future with the clarification of the balance to be struck between the duty to accommodate and the essential aspects of a contract of employment.  As noted by Adjudicator Liang:

"...the duty to accommodate is about the design and modification of workplace requirements to enhance the ability of certain employees to participate in the workplace without, at least in the first instance, dislodging the assumption of services for pay."

 

Update: BC construction industry drug testing policy

If news of the recent substance abuse testing policy agreed to in British Columbia by the construction industry and the union representing construction workers was of interest to you (see my initial post here), I found a link to the policy that you might wish to have a look at (the resolution isn't terribly good, but it's still readable).  The provisions relating to when testing for substances can occur starts on page 11.  To summarize, the policy provides for the following types of testing to be conducted:

• Pre-access testing: testing to be done as a condition of an employee entering a job site;
• Voluntary testing: employees can bypass the need to be subjected to pre-access testing at each job site they wish to work at if they agree to volunteer to a substance test right away, agree to unannounced, random testing and also agree to periodic testing which would require employees to submit to a substance test if they had not been tested in the preceding 36 months;
• Post-accident testing: an employee must submit to a substance test if involved in a job-related accident and the employer believes that the employee's mental state may have contributed to the accident;
• Reasonable suspicion testing: employees are subject to substance testing where the employer suspects they have used drugs at work or are under the influence of drugs at work;
• Return-to-work, post-treatment, rehabilitation testing: if an employee tests positive or refuses a test mandated under the policy, the employee is to be professionally assessed and must provide a negative test for substance use before returning to work;
• Probationary status/follow-up testing: an employee who tests positive for substance use must undergo a further test upon return to the workplace and afterwards be subject to random testing for a period of up to two years.

It's obvious that a lot of work went into the drafting of this policy.  It will be interesting to see if any employees legally challenge the policy.

You'll see from this article on the Daily Commercial News and Construction Record website, that the construction industry isn't ready to jump on the BC bandwagon.  It would appear that the unions in Ontario are expressing concerns about possible human rights legislation violations should drug testing be implemented.  As I noted in my previous post, that is the usual position taken by unions on this issue.