Human rights laws in Canada do not simply prohibit employers and other organizations from taking overtly discriminatory actions against individuals. These laws, such as the Ontario Human Rights Code or the Canadian Human Rights Act, also require an employer to take positive steps to eliminate or reduce barriers in the workplace. This is known as the duty to accommodate.

The duty to accommodate recognizes that it is sometimes necessary to treat a person differently from others in order to ensure they are treated fairly in light of their individual characteristics, needs, or circumstances. The duty is aimed at removing barriers and ensuring individuals’ the ability to fully participate in the workplace and society at large.

In the employment context, the duty to accommodate often arises when an employer seeks to apply a rule or standard to all employees in a way that has negative consequences for some employees due to a prohibited ground of discrimination. (See “Am I being discriminated against at work?”  for more information on the prohibited grounds of discrimination.)

In these circumstances, the employer may be required to accommodate the employee by modifying the rule as it applies to the employee, by providing additional assistance or making changes to the physical environment or workplace culture, or even by providing an exemption for the employee.

For example:

• An employer could be required to modify dress code requirements for some employees if the dress code conflicts with an employee’s religious dress requirements.
• An employer may be required to provide employees with modified duties, specialized work equipment, or changes to their physical workspace if they cannot perform their duties for reasons such as pregnancy or disability.
• An employer could be required to allow for alternative work arrangements, such as compressed hours, flexible hours or a flexible place of work to accommodate childcare or other family obligations.

Employee Responsibilities

The nature of the accommodation required will vary according to each individual’s unique needs, which must be assessed and accommodated on an individualized basis.

While employers will sometimes be under an obligation to inquire into whether an employee needs accommodation, it is generally the responsibility of the employee to communicate his or her need for accommodation to the employer.

Employees are also required to cooperate and be reasonable during the accommodation process. This may involve providing information to help the employer understand what it needs to do to provide accommodation. But employers are entitled to only the information necessary to determine what accommodation is required.

Finally, employees may be required to accept accommodations that appropriately address their needs, even if the accommodations are not ideal or exactly what the employees had asked for.

Accommodating to the Point of Undue Hardship

The duty to accommodate is not limitless. Even where it seems like the employer may have failed to provide necessary accommodation, the employer may nonetheless justify its policy, practice or expectation.

For instance, an employer may be able to establish that accommodating an employee would cause the employer such significant hardship that it should not be required to provide accommodation. Examples of undue hardship can include changes that endanger an employee’s health and safety or the health and safety of others, or changes that impose a financial cost that is so significant that it threatens the viability of the employer’s business. That being said, the standard on the employer is high and recognizes that employer may be required to suffer some hardship in order to provide accommodation.

Conclusion

Whether an employer or other organization has fulfilled its duty to accommodate an individual – and whether it will be able to establish a defence if it has not – is a very individualized and fact-based inquiry. If you believe that an employer or service-provider has failed to accommodate you on the basis of a prohibited ground, you may have been subject to discrimination, and you should seek advice from a human rights lawyer.

We are here to help: Consult one of our experienced human rights lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a complaint of discrimination against your employer.

Andrew Astritis participated as a panelist in a recent webinar by the Canadian Bar Association on family status accommodation. The webinar provided an update on cases on this issue from across Canada, including a discussion of recent cases that have been decided since the Federal Court of Appeal’s decision in Canada (Attorney General) v Johnstone. For information or to purchase a copy of the recording, please visit the CBA website.

A scientist in the federal public service made national headlines last week when he was suspended with pay pending an investigation into a protest song he wrote about the Harper government. Tony Turner and a chorus of others appeared in a video performance of the song, “Harperman“, which was posted on YouTube last June and had garnered approximately 50,000 views. The video prompted an investigation, according to news reports, into whether Mr. Turner has violated the Values and Ethics Code that applies to employees in the federal government. Mr. Turner is being represented by his union, the Professional Institute of the Public Service of Canada, in the investigation.

This case has brought widespread attention to the interesting issue of the political and free speech rights of public servants. Public service employees enjoy the right to free expression under the Charter of Rights and Freedoms, including political expression, but courts have held that these rights are not absolute: they are limited based on the duty of loyalty to the employer, as well as the need for a politically neutral public service.

How these competing interests are balanced in any one case is difficult to predict: the central question is whether the political activity or criticism impacts the employee’s ability to perform his or her duties as a public servant effectively, or whether it impacts the public perception of that ability. The following factors have been considered in past cases:

• The nature and scope of the political activity in question;
• The position and responsibilities of the employee engaging in that activity;
• Whether the individual identified himself or herself as a public servant in the course of the political activity; and,
• Whether the criticism was particularly sustained or vitriolic in nature.

The question remains how these considerations will be applied in Mr. Turner’s case, as the investigation has not yet concluded. One thing that appears certain is that the results of the investigation will be closely watched by the Canadian public—ironically, the suspension and investigation have brought far more public attention to the song than it would ever have otherwise received (in the few days since this story broke, “Harperman” has vaulted from 50,000 to over 400,000 views on YouTube).

Another question that remains: can someone really be disciplined for writing something this catchy?

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On May 11, in its decision in Kirby v Correctional Services Canada, 2015 PSLREB 41, the Public Service Labour Relations and Employment Board ordered Correctional Services Canada (CSC) to pay $12,500 in back-wages and damages for pain and suffering for having discriminated against an employee on the basis of disability.

The employee, Larry Kirby, had been working as an institutional driver for the CSC when he injured his back in 2005 and became unable to perform some of the duties of his position. Initially, the CSC accommodated Mr. Kirby by reorganizing his position so that he could focus solely on duties he was medically able to perform.

In 2009, after three years of accommodating Mr. Kirby, CSC received a Health Canada assessment indicating that Mr. Kirby’s disability was permanent and that he should be accommodated in his current position on a permanent basis. Despite the CSC’s admission that there was sufficient work for Mr. Kirby, and that allowing him to perform it permanently wouldn’t cause undue hardship, CSC sent Mr. Kirby home on sick leave. The CSC alleged that it simply wasn’t its practice to create a position in which to accommodate a disabled employee.

The PSLREB Adjudicator found that that CSC could have continued to accommodate Mr. Kirby on a permanent basis in his former position with modified duties, and that the failure to do so was in violation of the Canadian Human Rights Act and the collective agreement. CSC was ordered to pay $12,500 damages for pain and suffering and wilful and reckless disregard of its obligations under the Canadian Human Rights Act.

Mr. Kirby was represented by David Yazbeck of RavenLaw.

David Yazbeck has been appointed to the Board of Directors of FOLKRUM, Ottawa’s community music venue. FOLKRUM is an independent, not-for-profit organization working toward the creation of a creativity hub and music facility to serve Ottawa, Outaouais, the valley and surrounding areas. David previously served as an Advisor to FOLKRUM.

On June 11, David Yazbeck will be moderating a Lancaster House Conference on “The ABCs of IMEs: When are they useful, when are the required?” The conference will discuss the ins and outs of employer requests for independent medical examinations (“IMEs”) to verify or obtain information about an employee’s medical condition. The panel will discuss the ground rules for employer requests for IMEs, whether such requests are becoming more common, whether IMEs should be sought only as a “last resort”, how the parties can ensure that privacy rights are being respected in the IME process, and what consequences an employee may face on refusing an IME.

More information about the conference can be found here.

This Monday, as occurs the first Monday of every September, Canadians will celebrate Labour Day. The occasion is usually marked across the country by barbecues, get-togethers and marches, uniting families and friends before the official end of summer and the back-to-school rush. The holiday joins Family Day, Victoria Day, and the Civic Holiday, as vaguely-defined holidays with little meaning to most Canadians other than a day off.

In the case of Labour Day, the lack of recognition is perhaps unsurprising given its history. Labour Day was established in 1894, following the publication of the Report from the Royal Commission on the Relations of Labour and Capital in Canada. Among the many proposals, most of which were ignored, the Royal Commission proposed the establishment of a labour day:

“Your Commissioners recommend that one day in each year be set apart by proclamation to be observed throughout the Dominion as a statutory holiday, and that it be known as Labour Day”

As noted by Professor David Frank, there were many important and necessary reforms recommended by the Royal Commission, such as union recognition, workers’ compensation, minimum wages and child labour laws, which were either too difficult or too inconvenient to implement. A statutory holiday, in contrast, was both popular and easy to enact. (See Ontario, Family Day, 2007).

Unfortunately, rather than providing a day of rest and celebration of the labour movement, Labour Day actually has the opposite effect for many of the most vulnerable labourers in the country. Many retail giants use the holiday as an opportunity to increase sales, and major grocery stores often lobby to remain open. Hundreds of thousands of workers employed in restaurants, gas stations, stores and supermarkets will thus be required to work on a statutory holiday meant to celebrate improved working conditions of all workers.

Ways to celebrate this Labour Day

For those interested in celebrating Labour on Labour Day, all is not lost. Across the country, hundreds of thousands of Canadians will be marching on Monday to mark Labour’s contribution to the betterment of working conditions for all workers. In Ottawa, the Labour Day March starts at noon at City Hall (Lisgar Entrance) and a Labour Day Picnic is scheduled at McNabb Park (Gladstone and Bronson) from 1PM-4:30PM.

Canadians could also spend Labour Day reading up on the labour-related issues in the upcoming Federal election. Some parties have proposed increases to the minimum wage and the abolition of unpaid internships. Hundreds of candidates with roots in the Labour movement are running, raising issues affecting workers and making them electoral issues. There are currently several challenges in the courts regarding labour-related legislation that is alleged to be contrary to the Charter of Rights and Freedoms—these issues can all be raised with current Members of Parliament and candidates.

Whatever else, Labour Day can be a day to reflect on the many advances that unions and workers have achieved. Historic achievements of the Labour movement, such as workers’ compensation, maternity leave, and pay equity, are well known and the effects of these gains continue to this day. There are also recent union victories that can be celebrated this Labour Day, such as decisions from the Federal Court and the Federal Court of Appeal protecting workers from discrimination on the grounds of family status, and the Supreme Court’s recent recognition that workers have a Constitutional right to withhold their labour. In addition to these high-profile gains, unions and workers engage in daily challenges to unfair policies in the workplace, wrongful terminations, and fights for fairer wages that benefit all Canadians.

So, this Monday, reflect on the past, present, and future of the Labour movement, and have a safe and happy Labour Day.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

All employees have the right to work in a safe and healthy workplace, free of harassment and violence.  Harassment in the workplace often lead to a toxic working environment filled with stress and anxiety. In some cases, it may even lead to physical violence. All workplace parties, including employees, have a role to play in maintaining a safe and healthy workplace.

What is Harassment?

Workplace harassment is defined in the Occupational Health and Safety Act as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. Harassment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability also violates the Ontario Human Rights Code.

While harassment is usually defined as a series of incidents, one serious incident may be sufficient to meet the definition of harassment. For example, one disrespectful remark about a person’s physical appearance would be considered rude but not necessarily harassment. However, a series of repeated rude and degrading remarks would constitute harassment.

Here are some examples of harassment:

• Making rude, degrading or offensive remarks
• Yelling at an employee or co-worker
• Excluding someone from social gatherings, isolating a person
• Withholding information
• Spreading rumors, gossip
• Requesting the performance of a task inferior to a person’s competencies that is demeaning or belittling

Here are examples of conduct that, under normal circumstances, are not harassment:

• Normal exercise of supervisory responsibilities including performance reviews, performance improvement plans, feedback, direction, counselling, provided they are conducted in a respectful manner
• A friendly gesture (i.e. a pat on the back)
• Workplace conflict

The context or circumstances in which the conduct occurred will be extremely important in determining whether the conduct is considered to be harassment.

Employer Responsibilities

Employers have a legal obligation under the Occupational Health and Safety Act to protect the health and safety of employees, including an obligation to take every reasonable precaution to protect workers from workplace violence. Specifically, the employer must establish and implement policies and procedures to help supervisors and employees recognize inappropriate behaviors and to inform them about their rights and responsibilities. The employer must also establish measures and procedures to allow employees to report incidents of workplace harassment or bullying. Reported incidents must be investigated and dealt with in a timely fashion and in accordance with the workplace harassment policy.

Employee’s Responsibilities

Employees should not engage in intimidating or harassing behavior. If they are the target of such behavior, they have a responsibility to speak up either by asking the person to stop or by reporting the incident or behavior in accordance with the procedures established by the employer. Co-workers also have a duty to report incidents of harassment in the workplace as they are a potential hazard which may lead to workplace violence.

How to Foster a Respectful Workplace

A safe and healthy workplace is a respectful workplace. When workers treat each other with respect, there are fewer negative interactions.   Employers may implement a number of strategies to foster a respectful workplace including:

• Discussions about key organizational and human values
• Training
• Policy review
• Encouraging communication
• Establishing clear consequences
• Leaders must be role models

Employees and co-workers also have a role to play in fostering a respectful workplace. They should:

• Not engage in workplace harassment or bullying
• Speak up
• Tell the person the behavior is unwanted/unacceptable
• Ask the person to stop
• Co-workers should intervene if appropriate and if they feel comfortable doing so
• Identify and report incidents to supervisors in accordance with the workplace procedures
• Support co-workers by listening
• Document details of events with detailed information in the event of an investigation including dates, times, details, names of witnesses
• DO NOT RETALIATE

Conclusion

The key to preventing harassment in the workplace is early intervention. Ignoring problems will not make them go away and often will only make them worse. Employees should not hesitate to speak up and report incidents of harassment when they occur as early and informal intervention may resolve the issue. Employees who feel intimidated or are afraid to speak up may seek assistance from co-workers, from their union or from outside legal counsel. 

We are here to help. Consult one of our experienced Employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you have been terminated from your employment.

Morgan Rowe will be celebrating a Toronto launch for the paperback edition of her book, Exploring Disability Identity and Disability Rights through Narratives: Finding a Voice of Their Own, on September 9, 2015. The book explores the relationship between disability, human rights, and personal identity in the lives of Canadians with disabilities. The book launch is being hosted by Caversham Booksellers. More details about the event can be found here.

On July 21, David Yazbeck will be moderating a Lancaster House Conference on “Minding Your Own Business: Privacy rules on collecting, using, and disclosing employee information” The conference will discuss the potential conflict between employee privacy and employer concerns about the impact employees’ online activity can have on their reputations. The panel will discuss the law related to background checks, including “social media checks”, the latest cases on surveillance and biometric identification technologies, the legal rules with respect to personal information on the employer’s devises, and an employer’s ability to access employees’ medical information.

More information about the conference can be found here.