Human Rights in the Workplace

1. Human Rights in the Workplace Presented By Emily Hann HR Manager – Norgarden Estates BCSLA Conference - 2013

2. Agenda • 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

3. What is Human Rights Law • 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: • 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. • promote a climate of understanding and mutual respect where all are equal in dignity and rights • prevent discrimination prohibited by the code • identify and eliminate persistent patterns of inequality associated with discrimination • provide a means of redress for those persons who are discriminated against contrary to the Code (BCHRT)

4. Prohibited Grounds • 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

5. Discrimination in Employment The BC Human Rights Code Section.13: A Person must not • Refuse employment or refuse to continue employment, or • Discriminate against a person regarding employment or any term or condition of employment Employers must continuously practice caution in all employment activities…..

6. Employment Activities That Could Lead to Discrimination Claims: • Recruitment • Employment Advertising • Promotions/Wage Increases • Scheduling • Performance Management • Job Descriptions • Dismissals • Failure to Accommodate Leaves • Attendance Management • Standards and Policies

7. Bona Fide Occupational Requirement (BFOR) • 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!

8. 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 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

9. 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 • 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

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

11. Examples of employment standards/procedures/qualifications that could be seen as adversely discriminating against a protected group?

12. Duty to Accommodate • 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

13. Employer’s Obligations in 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?

14. Possible Behaviors Leading to “Duty to Inquire”: • 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

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

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

17. What Accommodation Efforts Might Look Like…. 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.

18. Family Status Case – Failure to Accomodate Devaney 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

19. Family Status Case – Failure to Accomodate Devaney 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

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

21. 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

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

23. Employee’s Also Have Obligations in Accommodation: • 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

24. Undue Harship: • 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.

25. Factors Considered When Establishing Undue Hardship: • 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?

26. Requesting and Providing Medical Information: • 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

27. 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

28. 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.

29. Human Rights Complaint – Typical Process • 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

30. QUESTIONS?