EMP_Chapter_5__Human_Rights_Issues_Duty_to_Accommodate__etc._

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.

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.

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.

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.

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

Avoid Premature Conclusions: Do not assume a disabled employee cannot perform their job without proper evaluation.
Gather Medical Information: Seek expert advice and medical opinions before making employment decisions.
Objective Assessment: Employers must evaluate decisions based on evidence rather than assumptions.
Inquiries: Failure to investigate sufficiently could indicate a failure to meet accommodation duties.
Explore Accommodation Options: Employers must explore all potential accommodation avenues meaningfully.
Generalized Fears: Decisions cannot be based on unfounded fears regarding an employee's disability.

Rational Connection: Establish a clear link between job qualifications and job requirements.
Good Faith Belief: Demonstrate the belief that qualifications are necessary for job performance.
Reasonably Necessary: Qualifications must be essential for achieving work-related goals.

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.

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.

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.

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.

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.

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.

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.

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.

Physical Contact: Unwanted touching or proximity.
Inappropriate Comments: Remarks about appearance or unsolicited compliments.
Visual Harassment: Display of offensive content or imagery.

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.

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.