When Does Racism Amount to a Poisoned Workplace?

Does racism necessarily lead to a poisoned workplace?

At the end of last month, the Ontario Court of Appeal concluded in General Motors of Canada Limited v Yohann Johnson that while the former employee, Johnson, “genuinely believed that he had been the victim of racism in his workplace” and that his “perception of events unfortunately led to stress and mental anguish”, the evidence did not support Johnson’s claim of a work environment poisoned by racism or constructive dismissal. 

In a fairly rare move, the Court of Appeal overturned the trial decision because it disagreed with the trial judge’s factual conclusions, rather than any significant concern with the application of law. 

Facts

In that case, Johnson, a black man, was a production supervisor in the body shop at GM’s Oshawa assembly plant. Among his various duties, he was responsible for training group leaders in the body shop on a new system of policies and guidelines. 

One employee named Markov refused to train with Johnson. Based on a number of factors and statements by co-workers, Johnson claimed that Markov refused to train with Johnson because of race. The Court of Appeal accepted the evidence that Markov refused to train because of an insensitive remark Johnson had allegedly made to Markov a few years earlier.

The company conducted three different investigations, and each time had concluded that Markov’s refusal to train with Johnson was not motivated by race. Markov, in fact, had agreed to take the training with another supervisor who was of colour. 

What remained a significant challenge at trial was that Markov had unfortunately died before trial, so his credibility and his version of events could not be admitted or tested.

Medical Leave

Johnson eventually took a medical leave, asserting disability arising from discriminatory treatment due to racism in his workplace. He was absent from work for the next two years, after which he met with the company’s doctor, who concluded that Johnson was fit to return to work. 

The company offered Johnson two different positions, both of which were approximately a kilometre away from the assembly plant body shop, offered to adjust Johnson’s shifts and possibly his supervision. Johnson declined the offers, maintaining he was disabled from working in any GM plant, but provided no medical information to support the claim. Johnson remained concerned that he would run into certain employees, including Markov.

Two months later, the company wrote to Johnson , who had still not returned to work, to confirm the offered employment opportunities, and concluded that in the absence of any medical support for the continued absence, Johnson was resigning from the company.

Johnson’s Litigation

Johnson sued for damages for constructive dismissal and a poisoned workplace based on racism. The Trial Judge agreed with Johnson, and awarded him various damages. 

The Court of Appeal overturned the decision, concluding among other things that Johnson failed to establish systemic or institutional racist behaviour:

“I agree with GM’s submission that a single incident of this kind, with a single employee, over the course of an eight year working relationship cannot objectively ground a finding of a work environment poisoned by racism.” (paragraph 71)

The Court of Appeal made several conclusions in support of the company, including the following:

  • there was no evidentiary basis to support that Markov was racially motivated in his refusal to train with Johnson, or that Johnson was required to return to a poisoned work environment when the company offered him two different positions;
  • Johnson did not have the right to dictate where he would work or the employment role he would assume on his return to work;
  • an objective standard governs the determination whether a workplace is poisoned, by reason of racism or harassment, not just the subjective perception of the plaintiff; and
  • the company was “not obliged to immunize Johnson from any future contact with Markov or other body shop employees”, and the mere possibility of contact with the employees does not alone establish that such exposure would result in future discriminatory treatment of Johnson.

Take-Away for Employers

The onus of establishing a poisoned workplace is on the employee making the claim. It is not an easy hurdle to meet, and must be based in solid, objective evidence. 

The Court of Appeal was sympathetic to Johnson’s genuine belief that he had been the victim of racism in his workplace and that he had suffered personal anguish as a result, but it could not conclude that Johnson’s belief was sufficiently supported by objective evidence.

The critical step to all workplace human rights complaints is to ensure that all complaints are taken seriously, and that a well-trained person conduct an objective, detailed investigation and thoroughly explore the issues, interview witnesses and fully document the entire process. 

Because at the end of the day, it doesn’t really matter what we all perceive to be the facts – we have to prove them to obtain a legal remedy.

 

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Can You Discriminate Against a Volunteer?

The Ontario Human Rights Code and the Accessibility for Ontarians with a Disability set out the rights and obligations regarding employees, but what about volunteers?  A reader of this blog (thanks Angie!) has asked about the application of these laws when recruiting volunteers.  Human rights codes across Canada work largely the same on this issue, but since Angie is from Ontario, I’ll focus on this province.  

Volunteers are not “Employees”

Can You Discriminate Against a Volunteer?First of all, volunteers are not “employees”.  The Ontario Employment Standards Act defines “employee” as a person who performs work or services for an employer “for wages”.  As long as the person is receiving wages, they are not a volunteer and are therefore entitled to minimum wage, paid holidays and all of the other minimum standards set out in the Employment Standards Act

It is possible to reward a volunteer, but that reward must be purely discretionary and not tied to performance.  In other words, you can provide the volunteer with a generous gift basket on your annual volunteer recognition day, without the risk of creating an employment relationship.  You cannot, however, pay the volunteer $10 for each new donor to your organization that he or she signs up on the street corner.  That’s a commission and tied to performance, indicating an employment relationship. 

But “Employment” Does Include Volunteers under the Human Rights Code

While the Employment Standards Act clearly does not apply to volunteers, it is likely that the Human Rights Code does.  The Human Rights Code does not specifically refer to volunteers, but it also does not limit “employment” to only paid positions. 

Rather, under the Human Rights Code, employment is interpreted broadly and will generally include volunteers for the purposes of applying the Human Rights Code to the workplace.  See the Ontario Human Rights Commission’s website for general guidance (while the Human Rights Tribunal is not bound by the OHRC, the OHRC remains a persuasive voice in the human rights regime in Ontario).

Volunteer Canada has published a useful guide for organizations that engage volunteers.  The Canadian Code for Volunteer Involvement sets out guidelines for policies and procedures for volunteers, indicating that such policies and procedures should be consistent with human rights legislation (see page 13 of the guide). 

Recruiting Employees/Volunteers

When recruiting employees (which will include volunteers under the Human Rights Code), the law is clear that you cannot discriminate against an individual based on any of the grounds set out in the Human Rights Code:

Employment

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

For example, it is discrimination if you refuse to hire someone because they are disabled, are pregnant, are too old, are members of a lesbian social club, are members of a particular religious organization, etc. 

The Human Rights Code further specifies that the recruitment process itself cannot be discriminatory:

Employment

23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Application for employment

(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Questions at interview

(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

Employment agencies

(4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer.

Special Interest Organizations

It is clear an organization cannot discriminate – but can an organization prefer volunteers that reflect the membership or purpose of the organization?  Many volunteers are engaged by special interest organizations, which by definition may exist to promote specific religious beliefs, gender issues, sexual orientation or cultural backgrounds, etc. 

Can organizations recruit to favour and/or exclude volunteers based these otherwise protected grounds? 

To some extent, yes, they can.  The Human Rights Code sets out special rules or exemptions in the area of recruitment for “special interest organizations” as follows:

Special interest organizations

18. The rights under Part I [the general section on Freedom from Discrimination] to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

For example, a woman’s shelter is not discriminating against men if it has a policy to recruit only women volunteers.  A church club for teenagers can require members to adhere to the religious practices of that church.  A Dutch social organization can require board members to have a Dutch background.

This exemption is complicated.  There will be limits to this section, and we most often see the limits determined when you have competing human rights issues.  For example, can a religious organization refuse to recruit a transgendered volunteer?  A full review of competing human rights would require a separate blog post, but suffice it to say that an organization can prefer volunteers that reflect the purpose or mandate of the organization, so long as the organization is not discriminating against the volunteer applying for the position (which I know is easier said than done in many situations).  

Volunteers and AODA

The other piece to the human rights regime in Ontario is the Accessibility for Ontarians with a Disability Act, 2005.  Both the Customer Service Standard and the Integrated Accessibility Standard under the Accessibility for Ontarians with a Disability Act, 2005 specifically require organizations to train both employees and volunteers about the provision of goods and service to persons with a disability and about the accessibility standards set out in the legislation.

The purpose of AODA is to achieve accessibility for Ontarians with a disability.  The standards willbe read broadly and interpreted to achieve the highest standard available under AODA and the Human Rights Code.  Any ambiguity around the application to AODA to a volunteer will likely be read widely to capture volunteers and ensure all individuals engaged at an organization are bound by the AODA standards.

 

Take Aways

The world of volunteers is outside and yet part of the employment context.  It is not always crystalCan You Discriminate Against a Volunteer? clear what role a volunteer has within an organization, but given the quasi-constitutional status of human rights legislation in Canada, employers and organization that engage volunteers would be most prudent to assume the full range of discrimination law applies to their volunteers. 

This includes ensuring your volunteers are held accountable for any discriminatory conduct they engage in while representing the organization.  As always, setting out expectations in a policy for all members of the organization - whether paid or unpaid – will provide clarity around human rights issues.

 

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Who Enforces AODA Standards?

I have questioned the teeth of the Accessibility of Ontarians with a Disability Act (“AODA”) in my past blog post, Where’s the Teeth?.  

While the fines for non-compliance are huge (up to $100,000 per day – see section 83 of AODA Reg 191/11), the regime relies on the Ministry of Community and Social Services (the “Ministry”) to identify, initiate and enforce compliance, as there is no mechanism within the AODA regime for an individual to initiate an AODA complaint against one’s employer or an organization. In other words, an organization would have to somehow get on the government’s radar in the first place. 

So how does an individual seek to enforce the standards for disability accessibility set out in AODA? Last fall, I was told by a representative at the Ministry that there is no gap as individuals can take their complaint to the Human Rights Tribunal of Ontario (“HRTO”). He further explained that the purpose of the AODA regime was to focus on compliance, not punishment, and that the Ministry will respond to patterns of a large number of complaints, but not necessarily individual, one-off complaints.

The HRTO’s “does not enforce the AODA”

Since AODA began applying to the public sector in 2010, we have seen about a half dozen HRTO cases involving both public and private organizations that refer to AODA as a floor or minimum standard of accessibility requirements an organization must meet. 

However, in Bishop v. Hamilton Entertainment and Convention Facilities
Inc
.
,one of the few HRTO cases that have considered AODA this year, the HRTO declined to reference the AODA standards and concluded the following: 

The Tribunal does not enforce the AODA. There is a statutory framework for Director's orders and administrative penalties set out in the AODA at sections 21 to 25.”

As a classic example of weak facts impacting the law, in the Bishop case, the applicant was unable to establish any discrimination based on disability.  The applicant claimed that the manner in which the respondent company was attempting to enforce a debt against the applicant’s non-profit organization was discriminatory. He, in part, relied on AODA’s Customer Service Standard to argue that the company did not provide services in accordance with the standards outlined in AODA. 

Ultimately, the HRTO held that based on the facts in this case, there was no link between the debt enforcement and his disability, and it dismissed the matter. 

Is there a gap for individual disability rights?

In dismissing the matter, the adjudicator in Bishop concluded that the HRTO “does not enforce AODA”. This makes sense from a statutory perspective - the Tribunal is not referenced in the AODA legislation, and it is the Ministry of Community and Social Services that enforces the AODA regime as against organizations. 

However, the Tribunal remains the “enforcer” of human rights standards for individuals in Ontario. The AODA legislation expressly states that in the event of any conflict between the AODA standards and the Human Rights Code, the higher standard will trump. Allegations of discrimination on the basis of disability remain squarely within the reach of the Tribunal. 

What remains unsettled, is the extent to which the AODA standards will be referenced as the minimum standards required to be met to avoid a discrimination claim. Many had thought the AODA standards would become a kind of checklist or enumerated criteria that an organization must meet, something we began to see in the HRTO cases, Wozenilek v 7-Eleven and Polangio v Cochrane

This would promote an objective component to the human rights regime that would no doubt be encouraged by disability advocates, and would frankly provide some clarity for organizations regarding accommodation, accessibility and how to avoid a discrimination claim. 

Competing or Complementing Administrative Regimes?

The Bishop case is a relatively short, succinct decision without any detailed analysis on AODA. I hesitate to jump to any conclusions based on this one case, but I am certainly curious what sort of discussion is happening behind the scenes at the HRTO. 

Is the HRTO prepared to absorb the AODA standards and become the “enforcer” of the standards for individuals? While the standards will not tie the hands of the HRTO, is there a reluctance to be the high profile interpreter of the standards? To what extent will the Ministry of Community and Social Services look to the HRTO for guidance on interpreting its own standards? 

It will be interesting to see how the caselaw develops given the distinctly different mandates of the two respective administrative bodies. 

In the meanwhile, given the huge fines for non-compliance, employers are best off to continue to work towards AODA compliance, while being prepared for individuals to use the AODA standards as, at the least, a reference point in individual discrimination claims at the HRTO.

For more info on AODA, here are some of my past blog posts:

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Are Blog Posts "Workplace Conduct"?

Last week, the Human Rights Tribunal released a very interesting decision in which discriminatory comments made by a union president on the union’s blog raised the issue of competing human rights – namely the right to be free from discrimination in the workplace vs the right to freedom of expression and association: Taylor-Baptiste v. Ontario Public Service Employees Union

The case turned on two issues: 

(i)               whether the union president’s blog posts were work-related and captured by the Human Rights Code’s right to be free from discrimination “in the workplace” and/or “in respect of employment” (they were not); and

(ii)             whether the union’s right to freedom of expression and association trumped the manager’s right to freedom from discrimination (yes, it did in this context).

Facts

In this case, a female manager claimed that the union’s president was posting discriminatory comments about her on the union’s blog. There was no dispute in the decision that the comments were discriminatory:  references to her sleeping to the top, having “intimate knowledge of another deputy”, suggestions that the manager had only obtained her position through sex, and that if she didn’t know the answer to something so simple, she should call her “boyfriend” over at his office.

The comments were made on the blog during heated collective bargaining in the fall of 2008. The union president states that the purpose of the blog was to communicate to the union membership, particularly in light of the ongoing negotiations. It was apparently a widely read blog in the workplace.

The union argued that the comments on the blog were not “in the workplace”, while the manager argued that the blog was an extension of the workplace, and that social media are integrally woven into the fabric of the modern workplace.

Competing Rights

The Ontario Human Rights Code prohibits discrimination “with respect to employment” and “in the workplace” as follows:

Employment

5(1)  Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability

Harassment in Employment

(2)  Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

[emphasis added; provisions are as amended since the case was heard]

It is important to note that the manager filed the claim against the union and the union president only. The employer was not named. This impacted the analysis as to whether discrimination occurred “with respect to employment” and/or “in the workplace”.  

 

Were the Blog Posts “In the Workplace”?

In deciding upon the application of section 5(2), the adjudicator, David Wright, concluded that the blog posts were not conduct “in the workplace”:

[25]  I agree with the applicant that employers can discipline employees for actions they take in cyberspace, and that the Code may apply to workplace-related postings on the internet.  It is not open to serious doubt, in my view, that in 2012 postings on blogs and other electronic media may be part of or an extension of the workplace and that the Code may apply to them.

[26]  However, I agree with the respondents that in the circumstances of this case, the blog comments themselves were not harassment “in the workplace” under s. 5(2). They were made on a blog identified with the union that, although open to the public, was directed at communication between union members and their leadership. There is no evidence that Mr. Dvorak made the postings while at work for the employer. There may be circumstances in which postings in cyberspace are sufficiently connected that they are “in the workplace”. However, even giving them a broad interpretation, the words of s. 5(2) cannot apply to this blog, given the context.

There are plenty of examples where online conduct, such as comments on Facebook or a blog, gets pulled into the workplace as a disciplinary offence. In this case, however, the adjudicator allowed the employee to wear two different hats, and contextualized the comments accordingly. 

Thus, while wearing his union president hat, the respondent could post on the union blog comments that were directed to union members. Whether or not the comments were discriminatory or harassing, the comments were not made “in the workplace” and so not captured by section 5(2) of the Code. This was so, despite the union president being an employee in the same workplace as the manager about whom he was blogging discriminatory comments.

Were the Blog Posts “In Respect of Employment”?

Section 5(1) of the Code has a broader application. It will capture issues around a generally poisoned workplace, not just specifically targeted conduct. In this case, because the manager did not name the employer (i.e. the party who had the primary power to address a poisoned workplace), the analysis became limited to the union and its president’s responsibility and liability. 

Ultimately, the adjudicator held that the comments were made in the course of the blogger’s duties as the local union president, and that his comments on management were protected by the Charter of Rights and Freedoms:

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

(a)

freedom of conscience and religion;

(b)

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c)

freedom of peaceful assembly; and

(d)

freedom of association.

            [emphasis added]

The comments were limited to a couple of posts within one month, in the midst of a large volume of other posts about the ongoing bargaining. The manager was unable to prove that the online comments had specific reverberations in the workplace, although the manager pointed out her resulting stress and use of the employee assistance plan.

This case pits the manager’s right to freedom from discrimination against the union president’s right to freedom of expression. 

In resolving these competing interests, the adjudicator looked to the nature of the comments themselves, finding that they focused on labour-management issues such as genuine concerns around nepotism and updates on the contract negotiations in play at the time, albeit using sexist language while doing so. The adjudicator held that the comments were:

“analogous to comments on labour-management issues made at a union meeting or a union newsletter. Comments on such issues are at the core of the constitutional protections of freedom of association and expression and the union’s right to operate independently of the employer.”

The blog comments were characterized as advocacy on behalf of union members by a local union president, and as such, held to be protected by the Charter right to freedom of expression and association (see Ontario (AG) v Fraser, 2011 SCC 20). 

In this circumstance, core Charter rights and freedoms trumped over the Code’s rights to freedom from discrimination. 

Context Does Matter

People often describe online comments as having the same exposure as an employee shouting out comments in the hallways of the workplace. A public comment is a public comment. This is apparently not the case, and context really will matter. 

While post-modern Gen-Yers who continue to carve out their online rights will no doubt roll their eyes and sigh, “Duh!”, the rest of us over 35 will be a little surprised that discriminatory comment about a manager posted on a public blog is okay. 

Social media continues to push the envelope on what is appropriate “public” commentary, what is workplace conduct, and what is personal vs professional. This decision moves the discussion forward on what is protected online free speech for unions.

 

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AODA for Employers Part 3: Where's the Teeth?

This is Part 3 of my three part series on the Accessibility for Ontarians with a Disability Act, 2005.  In the first post, I discussed the Customer Service Standard and in the second post, I outlined the Integrated Accessibility Standards.  Both standards are regulations under AODA and set out further detail on the requirements of businesses and workplaces to become accessible for individuals with a disability.

AODA Penalties for Non-Compliance

What are the penalties for failing to comply with AODA?  While AODA lays out the basic framework for how the compliance mechanism will be set up, the details are in the Integrated Accessibility Standard.  The compliance provisions expressly apply to both the Customer Service Standard and the Integrated Accessibility Standard.

In short, organizations can face fines of a daily penalty up to a maximum of $100,000 against the corporation and $50,000 against an individual, in addition to other non-monetary remedial penalties permitted by AODA.

Under AODA, inspectors have the authority to carry out an inspection by entering a business without a warrant, and may require production of documents or data, and/or interview any person present in the business on matters relevant to the inspection.

Where's the Teeth?

AODA’s objective is to encourage corporate compliance. There is no individual compliant mechanism set out in AODA, and the Ministry will not be pursuing individual complaints about an AODA violation.  The Ministry may, however, look into patterns of complaints about certain organizations, but again, with a view to the organization complying, rather than a focus on prosecution. 

Where we will see all the action for individual complaints - and for the respondent employers - is at the Human Rights Tribunal of Ontario.  For anyone with an individual complaint about his or her ability to access a particular goods or service in Ontario, he or she can file a discrimination claim at the Tribunal. 

AODA specifically provides that any law (e.g. the Human Rights Code) that imposes a higher level of accessibility shall prevail, and the Human Rights Tribunal continues to issue awards upholding the paramountcy of the Human Rights Code.

Because the AODA standards came into effect for the public sector in 2010, we are already seeing cases come out of the Tribunal that cite AODA and its regulations as the minimum accessibility standards that organizations should meet.   

Human Rights Tribunal Case Law

For example, in Palangio v Cochrane (Town)the employer was ordered to pay $10,000 to a town counselor because of the manner in which the council addressed (or initially, failed to address) his requests to record the council meetings due to his low hearing.  In that case, the fellow council members suspected he was leaking details to the media and refused his request.  Among other things, the Tribunal held that the town of Cochrane failed to train its employees on how to deal with AODA complaints.

As with so many discrimination cases, the process and method of communicating with individual complainants remain key issues that trigger awards.  For example, in Wozenilek v. 7-Eleven Canada Inc., the Tribunal awarded an individual who uses a wheelchair $6,000 because his local Seven-7 convenience store dilly-dallied in installing an automatic door device.  The Tribunal specifically cited the AODA standards and held that while the Customer Service Standard didn't kick in for private sector businesses until January 1, 2012, Seven-7 knew it was coming down the pipe, has the deep pockets to install a relatively inexpensive device, and was contemplating doing so anyways.  It was the failure to respond to the individual in a timely, effective manner that likely tipped the balance the most. 
 

Take-Away for Employers 

While the AODA feel-good compliance framework may not sound very threatening, employers must be aware of the likely increase of discrimination claims at the Human Rights Tribunal.  It may prove to be a better use of resources to comply up-front, rather than waiting for an individual to complain about their inability access your goods or services, or for an employee to file a claim for discrimination in the workplace.  

 

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AODA for Employers Part 2: Integrated Accessibility Standards

This is Part 2 of my three part series on the Accessibility for Ontarians with a Disability Act, 2005.  In my first post, I discussed the Customer Service Standard, which was passed this summer and requires the private sector to comply by January 1, 2012.

In this post, I outline the AODA Integrated Accessibility Standards, which set out further detail on the requirements of businesses and workplaces to become accessible for individuals with a disability.

The Integrated Accessibility Standards is divided into 5 parts:

  1. Part I - General: addresses the general purpose of the Standards, and general requirements regarding accessibility policies, plans and training.
  2. Part II - Information and Communication Standards: addresses requirements around accessible formats of documents such as training material and websites, as well as laying out requirements regarding service animals and communication supports.
  3. Part III - Employment Standards:  lays out accessibility requirements during specific stages of the employment relationship such as recruitment, return to work processes, performance management and career development.  This part also lays out requirements regarding emergency response information.
  4. Part IV - Transportation Standards: lays out accessibility requirements for transportation providers such as bus and taxi businesses.
  5. Part V - Compliance: lays out the compliance requirements for both this standard, as well as for the Customer Service Standard.

What to do by January 1, 2012

By January 1, 2012, all employers with at least one employee must provide individualized workplace emergency response information to employees who have a disability, if:

  1. the disability is such that the individualized information is necessary; and
  2. the employer is aware of the need for accommodation due to the employee's disability.

As with other situations requiring accommodation, employers need not be clairvoyant and detect undetectable disabilities in the workplace.  While employers must be observant of reasonably obvious disabilities in the workplace, employees are similarly required to voice their needs and to actively and meaningfully participate in dialogs concerning their own workplace accommodation.

Take-Away for Employers

For most employers, Part II and III will require the most effort to become compliant.  The deadline to comply is staggered over the next several years, primarily between 2013-2021.  While that sounds like a lot of lead time, some items will require significant effort. 

For example, as I discussed in a post this past summer, the website accessibility standard will require "large organizations" (employers with 50 or more employees) to ensure all website content conforms with the WCAG 2.0 Level A.  If you don't know what that means, you probably want to simply outsource through your IT department.

Another area requiring some lead time to prepare are workplace policies.  As with most aspects of Canadian employment law, much will turn on your organization's policies.  AODA lays out general requirements for workplace policies.  While many workplaces already have policies that address anti-discrimination or disability, few will have the layer of detail required by AODA, let alone written accessibility programs to implement and train on the policies.

Finally, the Employment Standards (Part III) will have an impact on your organization's recruitment process.  Application forms, selection processes, and communications with successful applicants will all require certain steps to ensure accessibility.  Additionally, if you are part of the growing world of online recruitment, you'll need to ensure your content on Facebook, LinkedIn, your website and any other social media platform "notify" the public, applicants, and employees of the availability of accommodation.

Stay tuned for my next AODA post, which will look at the enforcement and compliance issues associated with the standards.

 

 

 

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Freedom of Speech in the Workplace

Today the Supreme Court of Canada will hear a highly anticipated case on Canada's freedom of religion and speech laws.  The case involves Bill Whatcott and his passionate, public promotion of anti-gay and anti-abortion views, all in the name of his religion. 

Kirk Makin provides a good summary in today's Globe and Mail.

Whatcott's Case

A prostitute in his youth, Whatcott found religion and, apparently, also found a hateful perspective on some of the issues that tend to push the buttons of Canadians.  In 2005, the Saskatchewan Human Rights Tribunal ordered Whatcott to pay $17,500 to four individuals after he put anti-gay leaflets in their mailboxes.  In February 2010, the Tribunal's decision was overturned, and today, the parties will make their arguments to the SCC.

The case will turn on whether Whatcott's flyers contravened section 14 of the Saskatchewan Human Rights Code:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject. 

Clear as mud:  you cannot publish or display anything hateful to another person's dignity, but nothing in the provision restricts the right of freedom of expression.

Freedom of Expression

So do Canadians have the right to say hateful things?  While the US speaks of "free speech" as a religion in of itself, in our land of the Charter of Rights and Freedoms, we can say anything we want, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". 

Clearly a PR firm did not write our Charter, but it does provide a more sophisticated, albeit complicated approach to the issue of free speech.  This is not, and never will be, a black and white issue.  As a society, we want to deal with discrimination and hateful comments effectively.  However, although I may think Whatcott has archaic and ridiculous views about being gay or a woman's right to make choices about her own body , I do feel uncomfortable shutting him down completely - that really is a legal dictatorship that relies on mortal law makers getting it right in the first place.

Freedom of Speech in the Workplace

Having said that, I do believe that placing some limits on free speech in the workplace makes sense.  Employees come to work and require a space to thrive, and to keep the company productive.  Unlike the choices we can make outside of the workplace, an employee cannot escape, or choose to sit at a different table at the restaurant client meeting, or choose a different co-worker to share an office with, or decide to not interact with a department that promotes hateful comments about him or her. 

The workplace is a confined space, a micro-environment, that requires a common workplace culture to promote employee buy-in and sense of belonging, to keep everyone productive.  If your employees have nutty views - or hateful views - on the big ticket issues, the workplace is not the venue to push the envelope on freedom of speech.

Workplace policies, having your managers lead by example, openly supporting employees you see may be targets of intolerant comments and behaviours are all common sense necessities to balance our society's right to free speech in the workplace.

Have you had any recent experience with "free speech" issues in the workplace?  Have you run across any innovative ways to deal with it?  I'd love to hear from you.

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AODA for Employers Part 1: Customer Service Standards

The Accessibility for Ontarians with Disabilities Act ("AODA") has been around since 2005, but the specific obligations for employers do not start to kick in until 2012.  This is the first of a series of blog posts I will be writing to discuss the requirements of AODA for employers.

AODA lays out the general framework for ensuring Ontario businesses and workplaces are accessible to people with a disability.  The Regulations made under AODA lay out the details of specific requirements to comply with AODA.  So far, there are three Regulations:

  1. Accessibility Standards for Customer Service, Reg. 249/07
  2. Exemption from Reporting Requirements, Reg. 430/07
  3. Integrated Accessibility Standards, Reg 191/11

The main requirements are in the first and third Regulations, with the Employment Standards set out in detail in the third Regulation, the Integrated Accessibility Standards.  This post will discuss the first Regulation, the Customer Services Standards.

Customer Service Standards

The first regulation outlines the requirements for businesses to ensure customers can access their goods and services.  The public sector had to comply by 2010 and the private sector must comply by January 1, 2012.

The specific requirements include:

  • establish policies, practices and procedures governing the provision of goods or services to persons with a disability;
  • permitting the use of service animals and support persons;
  • notifying the public if there is a temporary disruption of goods or service;
  • ensuring your staff are trained about the provision of goods and services to persons with a disability;
  • establishing a process for receiving and responding to feedback about the manner in which you provide goods and services; and
  • ensure the format of documents that you are required to provide to a person with a disability is in a format accessible to that person.

Several of these requirements are common sense items that most business probably already meet, such as allowing a service animal into your store.  Others, such as training and establishing a feedback process may require more pro-active steps.

Because the public sector has already had to comply for a year and a half, there are plenty of helpful resources out there, including detailed guides on the Ontario government website.

Tricky Areas for Employers

While most employers are happy to get behind the concepts of the Customer Service Standards, I've had some clients raise concerns about both the cost and the logistics of compliance.  For example, the cost of providing a large amount of materials in Braille can be prohibitive for a small business or even a large business that runs at a low profit. 

The purpose of the legislation is to ensure the parties involved discuss accessibility, that those requiring accessibility are included in that dialogue, and that alternative formats and approaches are considered.  No where, for example, does the legislation require that all businesses must always produce a Braille version of their materials, a prohibitively expensive proposition for some businesses. 

Rather, if a customer requests an accessible format, the provider of goods and services "shall give the person the document, or the information contained in the document, in a format that takes into account the person's disability".  In a restaurant, for example, the "format" could include simply reading the menu out to the customer.  Braille documents are expensive to produce, and frankly, many people who are blind or have low vision either don't read Braille or prefer other formats.

The point of the legislation is to not assume and to ask the person effected.  Having said this, employers should expect to shoulder the cost of accessibility when required to do so.

Take Away for Employers

The Customer Service Standard focuses on your company's obligations to customers and members of the public, not on your obligations as an employer to your employees.  The main obligation that impacts the employment relationship will be the training requirements.  Staff must "receive training about the provision of its goods or services to persons with disabilities".

A good example of where this amounted to litigation and a $10,000 award against the employer is in the case of Palangio v Cochrane (Town) 2011 HRTO 1491, issued by the Human Rights Tribunal of Ontario last month.  In that case, the applicant was elected as a member of the Town Council who made a request for certain tools, such as permission to record meetings, to enable him to better hear the debate in council meetings. 

He was initially denied the request because other members of Council believed he was in fact attempting to surreptitiously record the meetings for ulterior purposes.  The Tribunal held that the ability to replay meetings was directly related to his disability of low hearing.  One of the findings of the tribunal was that the employer should have trained its staff (i.e. the other members of council) on how to deal with requests for accessibility. 

While AODA does not provide a direct complaint system for individuals (more on this in a future post on AODA's teeth), individuals can take their concerns directly to the Human Rights Tribunal.  It is at the Tribunal where we will continue to see AODA act as a minimum floor above which employers must comply. 

Has your workplace run into any particular challenges with preparing for AODA complaince?  Any unique obstacles you are facing at this point?

Stay tuned for my next posts on the AODA Employment Standards and whether AODA has any teeth...

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New Employer Standards for Employees with Disabilities

Last Friday, the Ontario government passed the Integrated Disability Regulation under the Accessibility for Ontarians with Disabilities Act (AODA).  The Regulation includes a number of requirements for employers to remove barriers and ensure accessibility for employees.  The Regulation contains three standards for organizations to meet, including an Employment Standard at Part III

A good summary of the Regulation can be found on the First Reference blog.  Further details can be found on the Ontario government website, including a toolkit that will be available in the fall of 2011.

Workplace Emergency Response Information by January 1, 2012

By January 1, 2012, all employers must provide individualized workplace emergency response information to employees who have a disability, if the disability is such that individualized information is necessary and the employer is aware of the need for accommodation due to the employee's disability.

Other Requirements

In general, employers will be required to address accessibility of employees, including:

  • develop policies on how the organization will achieve accessibility;
  • establish a multi-year accessibility plan outlining the organization's strategy to prevent and remove barriers; and
  • ensure that training is provided on the requirements of the accessibility standards.

Depending on the size of your organization, the various requirements of the Regulation must be implemented between 2014 and 2021.

Accessibility of the Internet

An interesting requirement that too few of us put our mind to is the accessibility of the internet.  For many people with a disability, viewing information that is often critical to one's employment is either very difficult or not possible.  The Regulation includes a number of standards that organizations will have to introduce over the next few years to ensure that all employees have access to the company's intranet and to computer systems in general. 

This includes ensuring compliance with the WCAG 2.0 Level AA standards, an initiative by the World Wide Web Consortium to improve accessibility of the internet for people with disabilities.

Donna Seale has written a helpful post on her Human Rights in the Workplace blog explaining how to improve internet accessibility.

This will be a challenging but positive process for employers.  I'd love to hear from you if you have any tips on how to smoothly implement accessible technology in the workplace.

 

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Criminal Record Discrimination: Lessons from Bryant

It's been a year since Michael Bryant had his car accident and altercation that led to the death of a bike courier.  If he applied for a job at your company, would you hire him, given the publicity and nature of the fatal accident?

The Rising Star of Bryant?

The September issue of the magazine, Toronto Life, has a very interesting cover article on our former provincial Attorney General.  For any readers outside of Ontario, Bryant was a rising political star, becoming the province's youngest Attorney General at only 37 years old. After leaving politics, he headed up Invest Toronto. 

As a result of the accident on August 31, 2009, Bryant was charged with criminal negligence causing death and dangerous driving causing death.  On May 25, 2010, all charges were dropped by the Crown because there was "no reasonable prospect of conviction".

I say "was" a rising star, but have no doubt I will eventually be proven wrong on that.  His political return seems inevitable, at least according to the Toronto Life article. 

Innocent Until Proven Guilty?

For me, what has been fascinating about the entire ordeal is whether Bryant's political career can survive such a terrible tragedy.  Given that the charges were dropped, the old adage of innocent until proven guilty is particularly important - he is officially innocent of any wrongdoing.  So can he and/or should he be punished - formally or informally - for the incident?

All is fair game in politics, and the public can respond in whatever raw fashion it wants.

Discrimination Based on Record of Offences

An employer, on the other hand, cannot respond in its own raw fashion.  If Bryant did apply at your company, you could not deny him a position on the basis of a criminal record, because he doesn't have one.  The charges were dropped, so there is no criminal conviction. 

Even had he been convicted, however, there are certain restrictions at law that would apply to both potential applicants and current employees.

The Ontario Human Rights Code prohibits discrimination on the grounds of "record of offences", which is defined as follows:

10(1)  "record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment;

So, had Bryant been convicted and been subsequently pardoned, it would have contravened the Code to deny him employment, even in part because of the record of offences.

As with all discrimination claims in the workplace, the employment decision at issue need not be based entirely on the ground of discrimination.  For example, you may have denied Bryant a job as head cashier in your bookstore because of several factors (lack of political fit, over-qualified, lack of specific experience, conservative haircut, etc), but if he could prove that at least part of the decision was based on your concerns with his record of offences (that is, had he been convicted and pardoned), he would have a successful discrimination claim. 

More difficult are the applicants that fall outside the specific grounds of discrimination in the Code (see section 5).  Can you refuse to hire a high profile person because of a perception of guilt (OJ Simpson comes to mind), or a reputation for raising public eyebrows (Mel Lastman, for example?)?

As long as you are not basing the hiring decision at least in part on a ground of discrimination (e.g. racial profiling or assumptions about certain religious or ethnic backgrounds), then the business decision can prevail.  Not every applicant will fit with your organization, and that is perfectly legitimate, provided the lack of fit is not in any way based on the Code's list of grounds for discrimination     

As for Bryant, he returned to private practice on Bay Street, but I suspect we haven't seen the last of his political ambitions. 

 

 

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Discrimination & Gender in Amateur Sport

I love stories like this:  17 year old Courtney Greer from Waterloo, Ontario, tries out for the boys' soccer team, makes the team on her own athletic ability and is then told she is not allowed to play in the league.  She then has the guts to publicly fight it and files a claim against the Ontario Federation of School Athletic Associations (OFSAA) at the Human Rights Tribunal.  This is teenage courage and bravery at its best.

Given the high likelihood of success at the Tribunal, last week the OFSAA changed its policy to allow girls to try out for the boys' team, even if there is a girls team available for the girls join. 

The executive director of the OFSAA was quoted in an article by Carolyn Alphonso at the Globe and Mail as saying:   “We were basically forced into this by the Human Rights Tribunal...We don’t think it’s a good thing, no, because what does it say about girls’ sport?”

Blainey (again)

I thought this issue was resolved back in 1986 in the Ontario Court of Appeal case of Blainey and Ontario Hockey Association, (1986), 26 D.L.R. (4th) 728, 54 O.R. (2d) 513, which held it is discrimination to prohibit a person from playing in a sports league on the basis of gender.  In that case, then 12 year old Justine Blainey fought to try out for the boys hockey team. 

At the time, the Human Rights Code contained section 19(2) which provided that "the right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex." 

Thus, prior to Blainey, while a sports league could not discriminate on the basis of race or religion, for example, it could discriminate on the basis of gender. 

The Ontario Court of Appeal in Blainey explained as follows:

Thus, but for s. 19(2), Justine Blainey would have been entitled to the protection of the Human Rights Code and the benefit of the complaint and enforcement procedures therein provided. But s. 19(2) denies her that protection and benefit. It permits membership in an athletic organization or participation in an athletic activity to be denied solely on the basis of sex without regard to any other factors. Individuals who may in all respects be equal in terms of qualifications for membership in an athletic organization or participation in an athletic activity can be treated differently for no reason other than their sex. With respect to athletic activity in the province, the protection of the Human Rights Code is still available to all others who complain of discrimination on other grounds, such as race, colour and ethnic origin. Only sexual discrimination is permitted. This renders s. 19(2) clearly discriminatory.

The court concluded that section 19(2) was contrary to section 15(1) of the Canadian Charter of Rights and Freedoms, which says:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In Canada, the federal Charter trumps provincial legislation, and so, section 19(2) of the Ontario Human Rights Code was held to be unconstitutional and of no force and effect.  In other words, since 1986, it has been illegal to prohibit a girl from trying out for a sports team.

Undermines Girls' Sports?

One of the arguments of the OFSAA was that it may undermine the girls' sports programs.  This was also cited as a concern after Blainey, that we would see a flood of applicants to the boys' sports leagues, while the girls' leagues languished with the weak athletes who couldn't cut the "real" team. 

In fact the opposite has occurred:  girl's and women's sports leagues have sprouted up all over the place in Canada.  Hockey, in particular, has increased, leading to all kinds of issues over ice time in our limited number of rinks.  While we must surely have the most ice rinks per capita in the world, it is never enough.

Combine hockey issues & human rights, and you have a serious national crisis in Canada.

In Toronto, for example, it was news throughout the winter that the huge increase of girls playing hockey has actually created challenges with ice time in the various hockey rinks around the city.  The issue of gender equal ice time hit the front line news several times over the winter, with the City of Toronto taking over one of the rinks until it agreed to distribute time more equally. 

Let Skills & Ability Decide

While I am quite sympathetic to concerns about those boys who are displaced because of a more athletic girl (what team do those boys get to play on?), and while I very much value the collegiality and inspiration girls and women can get from playing on a sports team together, I prefer an approach where skill and ability is the deciding factor, not gender. 

 

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Can workplace "culture" excuse racist behaviour?

Certain industries such as trucking or the oil fields have had a history of a male-dominated work force where the workplace culture may indeed have been a little rough. 

Two recent decisions highlight the requirement that all industries, regardless of a historical “culture”, must adhere to employment and human rights law.

On February 5, 2010, the Ontario Human Rights Tribunal released the decision of Khan v Lynx Trucking , awarding a former employee $25,000 plus lost wages for the racist comments she was forced to endure by the owner of the trucking company. At least one of the employer’s witnesses referred to the ‘rough and tumble world of trucking’, and most of the employer’s own witnesses noted that the owner would often swear and raise his voice. 

After months of dealing with racist comments and jokes, when the employee approached the employer to not speak to her in that manner, he responded that it was his “f***ing company”. That may be true, but owners must still comply with Ontario employment and human rights laws, which include refraining from discriminatory comments and conduct. 

In addition to the large damage award, the Tribunal ordered the company to retain an expert in human rights to assist in the development and implementation of a human rights and anti-harassment policy for the organization, and to implement human rights and anti-harassment training in the workplace. In other words, being the owner of the company did not exempt the respondent from the jurisdiction of the Tribunal.

Last August, the Alberta Court of Appeal faced a similar defence in the wrongful dismissal case of Poliquin v Devon Canada Corporation .

In that case, the oil fields company fired a manager in part for accessing internet pornographic and racist material and emails on the company computer, despite warnings not to do so. 

The court rejected the manager’s argument that because the company is in small-town northern Alberta in the heart of the oil patch, the industry atmosphere and culture was relaxed with respect to emails of “questionable content”. The court held that the employee’s conduct was not to be measured against the lowest common standards in an industry, but rather, to the reasonable standards to which the company requires compliance.

In that case, the company’s anti-discrimination policy addressed the problematic behaviour, and the company was able to point to it as a defence. The court upheld the company’s decision to dismiss the employee.

While all workplaces certainly have their own culture and history, that culture must evolve with Canadian law.

Both of these cases highlight the fact that workplace “culture” can no longer be an excuse for behaviour prohibited under the applicable human rights code. Up to date workplace policies remain an effective tool for companies to both deal with problematic behaviour and to defend themselves when facing discrimination complaints and law suits.

(*This piece was written for the Financial Post HRPA website.)

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