EMP_Chapter_5__Human_Rights_Issues_Duty_to_Accommodate__etc._

Employment Law - Chapter 5

Human Rights Issues: Duty to Accommodate, Harassment, etc.

Introduction to Discrimination

• The Human Rights Code mandates that employers ensure a workplace free from discrimination and harassment.

• All employment decisions such as promotions, training, discipline, layoffs, dismissals, and performance evaluations must be made without discrimination.

• Discrimination can be categorized into two types:

  • Direct Discrimination: Directly treating someone less favorably based on a protected characteristic.

Examples of Direct Discrimination by an Employer

• Pregnancy Discrimination: Refusing to consider a candidate due to pregnancy status.

• Exclusion: Excluding individuals based on protected grounds, such as religion or race.

• Role Change: Moving an employee to a non-client-facing role because they wear religious garb.

• Inappropriate Conduct: Making derogatory remarks about the LGBTQ+ community.

• Termination: Firing an employee belonging to a visible minority.

Adverse Impact Discrimination

• Constructive Discrimination: Policies that adversely affect a group despite being neutral on their face.

  • Example 1: Requiring male employees to be clean-shaven could disproportionately impact certain religious groups.

  • Example 2: A requirement for retail workers to work Saturdays adversely affects employees who cannot work that day for religious reasons.

Exceptions to Discrimination

• Bona Fide Occupational Requirement (BFOR): A justified reason for discriminatory practices if it is necessary for the job.

• Undue Hardship: Accommodations are not required if they place excessive burden on the employer.

• Age provisions: Some exceptions apply to employees aged 65 and over.

• Special Interest Organizations: Groups may restrict membership to particular protected groups.

Employer's Duty to Accommodate

• This duty is a crucial employer obligation under the Code, particularly concerning disabilities.

Rigorous and Ongoing Duty to Accommodate

1. Avoid Premature Conclusions: Do not assume a disabled employee cannot perform their job without proper evaluation.

2. Gather Medical Information: Seek expert advice and medical opinions before making employment decisions.

3. Objective Assessment: Employers must evaluate decisions based on evidence rather than assumptions.

4. Inquiries: Failure to investigate sufficiently could indicate a failure to meet accommodation duties.

5. Explore Accommodation Options: Employers must explore all potential accommodation avenues meaningfully.

6. Generalized Fears: Decisions cannot be based on unfounded fears regarding an employee's disability.

Three-Part Test for Justifying Discriminatory Rules

1. Rational Connection: Establish a clear link between job qualifications and job requirements.

2. Good Faith Belief: Demonstrate the belief that qualifications are necessary for job performance.

3. Reasonably Necessary: Qualifications must be essential for achieving work-related goals.

Accommodation Principles

• Individualization: Tailor accommodations to meet the unique needs of each employee.

• Dignity: Accommodations should respect the employee's dignity, privacy, and autonomy.

• Full Participation: Remove barriers and design workplaces for inclusivity.

The Accommodation Process

• Employers must start accommodating when alerted to a potential disability.

• Responsibilities are shared among employers, employees, and unions.

Factors for Undue Hardship

• Accommodation costs must significantly affect business operations to be considered undue hardship.

• Assessment includes overall organizational impact, not just individual branch considerations.

• Costs must be substantiated with competitive estimates and actual evidence.

• External funding avenues must be explored.

• Company size, sophistication, and resources must be factored into decisions.

Limitations on the Duty to Accommodate

• If a disability prevents an employee from fulfilling essential job duties, accommodation may not be feasible.

• Employees must actively participate in the accommodation process; failure to cooperate can limit accommodations.

• Accommodations should not create competing human rights situations.

• New job creation responsibilities only apply where a productive position is feasible.

Examples of Workplace Accommodations

• Physical Modifications: Building ramps, accessible washrooms.

• Tools and Aids: Special software or equipment for employees with disabilities.

• Schedule Adjustments: Modifying work hours to meet individual needs.

• Job Reassignments: Assigning disabled employees to suitable roles.

• Leave Policies: Allowing various types of disability leave.

Substance Abuse and Accommodation

• Employees dependent on substances like drugs or alcohol qualify for accommodations as this is considered a disability.

• Employers may implement assistance programs and allow time off for treatment.

• If rehabilitation efforts fail, there is no obligation to hold a job indefinitely.

Medical Marijuana in the Workplace

• Employers must allow medical marijuana use for treating disabilities, with limitations.

• Smoking may be restricted during work hours and in public view, and employees cannot smoke while impaired or in uniform.

Religious Accommodations

• Employers must accommodate employees' religious practices, such as days off for religious observance.

• Court cases have established precedents on reasonable accommodation without causing undue hardship.

Harassment Standards

• Workplace Harassment: Employees are entitled to a harassment-free environment, including protection from verbal threats and intrusive questioning.

• Subtle Harassment: May require explicit notification to be considered unlawful.

• Poisoned Work Environment: Consists of behavior that creates a toxic work atmosphere, regardless of direct targeting.

• Sexual Harassment: Involves ongoing sexually charged behavior that can adversely affect employment.

Examples of Sexual Harassment

• Physical Contact: Unwanted touching or proximity.

• Inappropriate Comments: Remarks about appearance or unsolicited compliments.

• Visual Harassment: Display of offensive content or imagery.

Vicarious Liability and Human Rights Applications

• Employers are vicariously liable for actions of managerial staff.

• Reasonable preventive measures must be demonstrated for ordinary employees.

• Human rights applications must be filed within one year, and reconsiderations are allowed in certain circumstances.

Remedies Under the Code

• Financial Awards: Damages for emotional distress and dignity.

• Non-monetary Awards: These include mandating human rights training, public apologies, or affirmative action programs.

• Courts: Human rights claims can now also be pursued in civil courts in conjunction with wrongful dismissal claims.

Class Activity

• Review specific cases that exemplify the principles discussed in Chapter 5.