Human Rights in the Workplace

Presented By Emily HannHR Manager – Norgarden Estates

BCSLA Conference - 2013

What is Human Rights Law? Prohibited Grounds Discrimination in Employment Bona Fide Occupational Requirement (BFOR) Duty to Accommodate/Duty to Inquire Undue Hardship Collecting Medical Information Case Law Examples Snapshot of the Complaint Process

Agenda

Canadian Human Rights Act (governs federally regulated entities) BC Human Rights Code

The BC Human Rights Code (the Code) is a law createdby the B.C. legislature. The purposes of the Code is to:

foster a society in B.C. where there are no impedimentsto full and free participation in the economic, social, political and cultural life of B.C.

promote a climate of understanding and mutualrespect where all are equal in dignity and rights

prevent discrimination prohibited by the code

identify and eliminate persistent patterns of inequalityassociated with discrimination

provide a means of redress for those persons who arediscriminated against contrary to the Code

(BCHRT)

What is Human Rights Law

Race Color Gender Ancestry Place of Origin Political Belief Marital Status Family Status Physical or Mental Disability Sex Sexual Orientation Age Conviction of a criminal or summary conviction offence unrelated

to employment or to intended employment of that person

Prohibited Grounds

The BC Human Rights Code Section.13:

A Person must not(a) Refuse employment or refuse to continue

employment, or(b) Discriminate against a person regarding

employment or any term or condition of employment

Employers must continuously practice caution in all employment activities…..

Discrimination in Employment

Recruitment Employment Advertising Promotions/Wage Increases Scheduling Performance Management Job Descriptions Dismissals Failure to Accommodate Leaves Attendance Management Standards and Policies

Employment Activities That Could Lead to Discrimination Claims:

Prohibition against discrimination does not apply to any action in employment if the action is based on a BFOR

A requirement that is necessary for the proper or efficient performance of a job

Bottom line: in a human rights case, an employer must show that the standard/treatment is reasonably necessary, and it must be demonstrated that it is impossible to accommodate individual employees under the protected ground without imposing undue hardship on the employer.

Always ensure you can prove treatment, standards, etc are objectively based on a BFOR!

Bona Fide Occupational Requirement (BFOR)

A milestone Supreme Court of Canada Human Rights case that created a uniformed test now used in court to determine if a violation of Human Rights Legislation (in employment) can be justified as a Bona Fide Occupational Requirement

The case: Mrs.Meiorin was a firefighter for BC Ministry of Forests

3 years after being hired the gov’t developed a series of fitness tests that all employees had to pass, she passed all except running 2.5km in 11-minutes (was 49 seconds over time)

She was fired

The Meiorin Approach(BC Public Service Employee Relations Commission (vs) B.C.G.S.E.U., (199was passed through the Canadian Human Rights Tribunal, 9) 3 S.C.R. 3

She was always a good performer, no issues

The arbitrator found that the aerobic standard constituted adverse effect discrimination based on sex because men as a group have a higher aerobic capacity than women

Concluded that 2.5km in 11 minutes was not a BFOR to efficiently and safely perform the job duties, and the government did not accommodate until undue hardship

She was reinstated with her job and compensated with lost wages and benefits

Meiorin Approach Cont’d (BC Public Service Employee Relations Commission (vs) B.C.G.S.E.U., (199was

passed through the Canadian Human Rights Tribunal, 9) 3 S.C.R. 3

Step One:The employer adopted the standard for a purpose or goal rationally connected to the performance of the job.

Step Two:The employer adopted the standard in an honest and good faith belief that is was necessary for the fulfillment of that legitimate work related

purpose.

Step Three:The standard is reasonably necessary for the accomplishment of that legitimate work related purpose. (this is where the gov’t failed in the Meiorin case)

Meiorin Approach (test used in court to determine if a BFOR is present)

Examples of employment standards/procedures/qualifications that

could be seen as adversely discriminating against a protected group?

Accommodation is a significant human rights obligation for employers

An employer must make an effort to accommodate the employee until it reaches a point of undue hardship

Accommodation efforts rest on both the employer and employee, but the ultimate effort usually rests on the employer

The most common protected grounds that require accommodation in the workplace are:

-Illness/Disability (mental & physical)-Family Status-Gender

-Religion

Duty to Accommodate

Must accommodate leave of absences not covered by Employment Standards Act (Illness/Disability)

Must accommodate changes in duties, schedule, equipment, etc, until efforts reach undue hardship for employer

No obligation to accommodate until requested by employee, (or)

UNLESS a “Duty to Inquire” is present

“Duty to Inquire” is based on the premise that the employer “ought to have known” there is a relationship between a protected ground and performance issues/absences/etc

Employer then has an obligation to inquire before dismissing or disciplining employee – is accommodation needed?

Employer’s Obligations in Duty to Accommodate:

Consistently absent or late for work Working excessive overtime Increased displays of anger or frustration Decreased productivity Difficulty concentrating, making decisions, or remembering

things Increased accidents or safety concerns Signs or symptoms of illness Employee informally advising employer of illness Signs of substance abuse Health complaints

Possible Behaviors Leading to “Duty to Inquire”:

Duty to Inquire Case: The BC Human Rights Tribunal recently found that an employer discriminated against

an employee who was suffering from depression when it dismissed her without inquiring into whether her inappropriate behavior was due to a mental disability.

Summer 2009, the employee took “stress leave” for 2-months. The employer was aware that stress was the reason for the leave, and also that, prior

to taking that leave, the employee had informed her supervisor that she suffered from depression.

The employer dismissed the complainant in the Fall of 2009, with the reasoning being that:(1) she was curt and abrupt in her manner of speaking with co-workers and management; (2) she exhibited mood swings toward employees and management; (3) she refused to take responsibility for her performance when these deficiencies were identified in her performance evaluations; (4) the employer considered her to be gossipy, manipulative, disruptive; and (5) that she was unlikely, unwilling or unable to change these behaviors and attitudes to the satisfaction of the employer.

Mackenzie v. Jace Holdings and another (No. 4), 2012 BCHRT Authored by: Dianne D. Rideout, Lindsie M. Thomson

The Tribunal concluded that the complainant was dismissed because of behaviors consistent with her diagnosis of adjustment disorder and depression.

Although the complainant did not expressly ask for accommodation for her depression or other mental health issues, the Tribunal found that the employer had a “duty to inquire” into whether her behavior was due to her mental disability and whether she required accommodation as a result.

Failure to do so was a breach of the Human Rights Code. The Tribunal awarded the employee $17,600 in lost wages and

$5,000 for injury to dignity.

Mackenzie v. Jace Holdings and another (No. 4), 2012 BCHRT

Authored by: Dianne D. Rideout, Lindsie M. Thomson

Examples?

Modifying a workstation Part-time work Allowing employee to work from home (family status responsibilities) Rescheduling shifts (ex. to accommodate family status obligations or religious

beliefs)

Approving leave of absences, or time off for treatment/re-hab Removing certain duties of a job Reducing hours Providing adaptive equipment Tolerating some absences

These accommodation efforts do not have to continue if they are creating undue hardship for the employer/company.

What Accommodation Efforts Might Look Like….

Family Status Case – Failure to AccomodateDevaney v. ZRV Holdings Ltd, 2012 HRTO 1590

Devany was employed for 27-years at an architectural firm, talented employee

In late 2007 his elderly mother became ill, so he started working frequently from home to accommodate his care giving responsibilities

He offered to still work full-time, but requested to do so remotely

Employer did not agree to this request, even though Devany’s working from home was not affecting his performance

Family Status Case – Failure to AccomodateDevaney v. ZRV Holdings Ltd, 2012 HRTO 1590

As a result of Devaney’s failure to work consistently out of the office, he was terminated in January 2009 with cause

Human Rights Tribunal found the employer to be discriminatory on the basis of family status

Found that employer failed to establish that working from the office was a bona fide occupational requirement

Devaney was awarded $15,000 for injury to dignity, feelings, and self-respect

Create a new position (may need to bundle duties)

Displace other employees

Remove essential characteristics of the job

Tolerate excessive absenteeism

Bump someone in contravention of the Collective Agreement

What DON’T Employers Have to Accommodate? (yet!)

Have employee perform unproductive job

Tolerate major safety concerns

Pay for treatment

An employee who is not cooperating or responding to accommodation efforts

What DON’T Employers Have to Accommodate? (yet!)

Mr.Pannu was employed as a recaust operator, requiring him to wear a self-contained breathing apparatus (SCBR) during emergency evacuation situations (poisonous gas leaks)

After being employed for 10-years he decided to grow a beard (Sikh), as a tenant of his faith

Was requested by Cellulose twice to remove the beard, as Work Safe BC requires anyone wearing a SCBR to be clean shave, to keep gas out. Pannu refused both times.

Cellulose claimed that assigning other positions to wear the mask, in order to accommodate Pannu’s tenant of faith, was a safety risk as these positions were less experienced with these particular emergencies

Pannu was removed from position

BC Human Rights Tribunal agreed with employer that the emergency procedure and policy was developed to ensure maximum safety, and it was a BFOR to be clean shaven

Undue hardship was established

Safety and Religion Case:Pannu v. Skeena Cellulose, 2000 BCHRT 56

Actively participate in accommodation plan

Comply with proposed accommodation efforts, if reasonable

Comply with treatment

Providing requested, relevant, medical information in a timely manner

On-going communication with employer regarding accommodation progress

Employee’s Also Have Obligations in Accommodation:

The threshold for undue hardship is know to be very high Hard to prove

If an employer can show, through objective evidence, that accommodation efforts have created an undue hardship for the organization, they may be discharged of their legal duty to accommodate

Ensure you always keep all accommodation efforts documented. Your organization will have no legal grounds without this.

Undue Harship:

Financial costs (size of company matters)

Interference with the rights of other employees

Health and safety concerns

Will they be returning in the foreseeable future?

Factors Considered When Establishing Undue Hardship:

Must carefully balance the employer’s right to medical information, with the employee’s right to privacy

If accommodation has been requested due to a medical disability, an employer has the right to request medical information, to inquire:

-Limitations related to job duties-Prognosis for recovery (RTW date)-Capabilities of alternative work-Will they be returning in the

foreseeable future?

Do not ask for a diagnosis! The information requested must be relevant

Requesting and Providing Medical Information:

Be prepared to pay for any requested medical documentation, these can be costly for employees

Employer may have the right to ask for additional information -beyond a Dr. “scratch pad note”!

It is a good idea to provide documentation for your employee to bring to the doctor, to ensure only relevant information pertaining to the job is collected:

-Job Demands Analysis-Job Description

Medical Information:

Human Rights Complaint – Typical Process

The employee files a complaint with the tribunal, who decides whether it has power under the code to accept the complaint.

If so, a copy of the complaint is sent to the employer, and they are asked to provide a written response within a set time, or agree to an early settlement meeting.

Typically, parties will agree to an early “settlement meeting”.

Employer should seek legal consult before the settlement meeting.

A tribunal mediator is present at the settlement meeting in order to assist both parties in hopefully reaching an agreement, and therefore avoiding a public hearing.

If parties do not agree on a settlement, the employer must file their “Response to Complaint”, and there will additional be pre-hearing meetings for final attempts to settle.

The tribunal will continue to encourage parties to reach mutually agreeable settlements, up until the hearing.

(ex)-early evaluation on both sides of strengths and weaknesses in the case

If the case reaches the hearing stage, this is a public hearing. As a result, the case details are posted on the BCHRT website for public viewing (including company name, results, etc)

Human Rights cases can be extremely costly for an employer, especially when they reach the hearing stage

-Legal costs

-In addition to paying for “lost wages”, the Tribunal often enforces the employer to provide monetary rewards to the complainant for “injury to dignity” and/or “injury to self-respect/feelings” (up to $35,000)

-Not only a monetary cost, but cost to reputation

Human Rights Complaint – Typical Process

QUESTIONS?