Transcript Emily Hann - Human Rights in the Workplace

Presented By Emily Hann
HR 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
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Undue Hardship
Collecting Medical Information
 Case Law Examples
 Snapshot of the Complaint Process
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Canadian Human Rights Act (governs federally regulated entities)
BC Human Rights Code
The BC Human Rights Code (the Code) is a law created
by the B.C. legislature. The purposes of the Code is to:
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foster a society in B.C. where there are no impediments
to full and free participation in the economic, social, political and cultural life of B.C.
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promote a climate of understanding and mutual
respect where all are equal in dignity and rights
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prevent discrimination prohibited by the code
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identify and eliminate persistent patterns of inequality
associated with discrimination
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provide a means of redress for those persons who are
discriminated against contrary to the Code
(BCHRT)
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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
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…..
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Recruitment
Employment Advertising
Promotions/Wage Increases
Scheduling
Performance Management
Job Descriptions
Dismissals
Failure to Accommodate Leaves
Attendance Management
Standards and Policies
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Prohibition against discrimination does not apply to any
action in employment if the action is based on a BFOR
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A requirement that is necessary for the proper or efficient
performance of a job
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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.
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Always ensure you can prove treatment, standards, etc
are objectively based on a 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
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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)
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She was fired
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She was always a good performer, no issues
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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
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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
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She was reinstated with her job and compensated with lost
wages and benefits
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)
Examples of employment
standards/procedures/qualifications that
could be seen as adversely discriminating
against a protected group?
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Accommodation is a significant human rights obligation for employers
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An employer must make an effort to accommodate the employee until it
reaches a point of undue hardship
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Accommodation efforts rest on both the employer and employee, but the
ultimate effort usually rests on the employer
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The most common protected grounds that require
the workplace are:
-Illness/Disability (mental & physical)
-Family Status
-Gender
-Religion
accommodation in
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Must accommodate leave of absences not covered by
Employment Standards Act (Illness/Disability)
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Must accommodate changes in duties, schedule, equipment, etc,
until efforts reach undue hardship for employer
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No obligation to accommodate until requested by employee, (or)
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UNLESS a “Duty to Inquire” is present
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“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
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Employer then has an obligation to inquire before dismissing or
disciplining employee – is accommodation needed?
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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
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.
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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.
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The Tribunal concluded that the complainant was dismissed
because of behaviors consistent with her diagnosis of
adjustment disorder and depression.
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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.
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Failure to do so was a breach of the Human Rights Code.
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The Tribunal awarded the employee $17,600 in lost wages and
$5,000 for injury to dignity.
Examples?
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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.
Family Status Case – Failure to Accomodate
Devaney v. ZRV Holdings Ltd, 2012 HRTO 1590
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Devany was employed for 27-years at an architectural firm,
talented employee
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In late 2007 his elderly mother became ill, so he started
working frequently from home to accommodate his care
giving responsibilities
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He offered to still work full-time, but requested to do so
remotely
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Employer did not agree to this request, even though
Devany’s working from home was not affecting his
performance
Family Status Case – Failure to Accomodate
Devaney v. ZRV Holdings Ltd, 2012 HRTO 1590
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As a result of Devaney’s failure to work consistently out of
the office, he was terminated in January 2009 with cause
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Human Rights Tribunal found the employer to be
discriminatory on the basis of family status
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Found that employer failed to establish that working from
the office was a bona fide occupational requirement
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Devaney was awarded $15,000 for injury to dignity,
feelings, and self-respect
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Create a new position (may need to bundle duties)
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Displace other employees
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Remove essential characteristics of the job
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Tolerate excessive absenteeism
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Bump someone in contravention of the Collective
Agreement
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Have employee perform unproductive job
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Tolerate major safety concerns
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Pay for treatment
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An employee who is not cooperating or responding to
accommodation efforts
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Mr.Pannu was employed as a recaust operator, requiring him to wear a selfcontained breathing apparatus (SCBR) during emergency evacuation
situations (poisonous gas leaks)
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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.
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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
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Actively participate in accommodation plan
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Comply with proposed accommodation efforts, if
reasonable
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Comply with treatment
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Providing requested, relevant, medical information in a
timely manner
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On-going communication with employer regarding
accommodation progress
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The threshold for undue hardship is know to be very
high
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Hard to prove
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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
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Ensure you always keep all accommodation efforts
documented. Your organization will have no legal
grounds without this.
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Financial costs (size of company matters)
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Interference with the rights of other employees
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Health and safety concerns
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Will they be returning in the foreseeable future?
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Must carefully balance the employer’s right to medical
information, with the employee’s right to privacy
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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?
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Do not ask for a diagnosis!
The information requested must be relevant
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Be prepared to pay for any requested medical
documentation, these can be costly for employees
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Employer may have the right to ask for additional
information
-beyond a Dr. “scratch pad note”!
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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
Human Rights Complaint –
Typical Process
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The employee files a complaint with the tribunal, who decides whether it has power
under the code to accept the complaint.
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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.
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Typically, parties will agree to an early “settlement meeting”.
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Employer should seek legal consult before the settlement meeting.
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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.
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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.
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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
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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)
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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 selfrespect/feelings” (up to $35,000)
-Not only a monetary cost, but cost to reputation
QUESTIONS?