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Workplace Accommodations: Fostering Fairness and Inclusivity in Canadian Workplaces

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Introduction

The duty to accommodate stands out as a key principle in Canadian law that supports workplace fairness and inclusivity. This duty requires employers to make reasonable adjustments in the workplace for employees facing barriers due to disabilities, religious beliefs, family status, or other protected grounds. In recent years, family status has emerged as a pressing issue, with increasing recognition of the need for employers to consider family-related obligations. While the duty to accommodate is significant, employees’ rights are not unfettered; accommodations must be reasonable and balanced against the needs of the workplace and employees must participate reasonably in the accommodation process.

Embracing the duty to accommodate is not only about legal compliance, but also is a vital part of broader diversity and inclusion measures that foster a workplace culture where all employees can thrive. When organizations actively address individual needs, they create a more inclusive environment, boost morale, and enhance productivity, ultimately benefiting everyone involved.

The duty to accommodate is grounded in applicable human rights legislation, providing a legal framework for involved parties. All stakeholders involved (including employees, unions where applicable, and employers) are required to participate in the process with due diligence and good faith. This collaborative approach is essential for effectively addressing accommodation needs and ensuring compliance with legal obligations. This article will explore the significance of accommodation in the workplace, outline the legal responsibilities involved, and provide best practices to foster a more inclusive and productive environment for all.

Legal Framework

Canadian employers have a duty to accommodate employees based on protected grounds (such as race, gender, disability, and religion) under applicable human rights legislation. Applicable human rights legislation is governed by provincial law for provincially regulated employers and federal law for federally regulated employers. Employers are typically required to accommodate employees based on protected grounds to the point of “undue hardship.” For example, the Ontario Human Rights Code outlines these protected grounds and mandates that employers take reasonable steps to accommodate individuals up to the point of “undue hardship.” [1] This standard requires an assessment of the potential impact of accommodation on the organization, considering factors such as financial cost, health and safety, and the overall operation of the business.

The duty to accommodate necessitates active participation from all parties involved, including employers, employees, and unions, where applicable. Upon receiving an accommodation request, employers are required to engage in an interactive process to explore viable options while making a genuine effort to address the individual’s needs. Employees also bear certain responsibilities, such as clearly communicating their needs and cooperating throughout the accommodation process, which fosters collaborative efforts toward an effective solution. A recent legal decision outlined below emphasizes the obligations of employees in this context, indicating that a human rights claim may be unsuccessful if the employee fails to actively participate in the accommodation process. Furthermore, unions, when applicable, have a legal obligation to engage in the accommodation process and to fairly represent their affected members.

Human rights legislation often interacts with other legislative frameworks, such as employment standards legislation. In Ontario, for instance, the Employment Standards Act, 2000 sets out minimum employment rights, while the Ontario Human Rights Code provides a broader framework for protection against discrimination and the duty to accommodate. Employers must navigate these overlapping obligations, ensuring compliance with all applicable legislation, and typically, if multiple statutes address the same legal issue, the strongest protections will prevail.

Protected Grounds

With respect to who is entitled to accommodation, individuals are protected based on certain grounds that are covered by applicable human rights legislation, including grounds such as:[2]

  • Race
  • Ancestry
  • Place of Origin
  • Colour
  • Ethnic Origin
  • Citizenship
  • Creed
  • Sex
  • Sexual Orientation
  • Gender Identity
  • Gender Expression
  • Age
  • Record of offences (in certain contexts)
  • Marital Status
  • Family Status
  • Disability

Beyond the specifically cited grounds, there are also general protections for “analogous grounds.” “Analogous grounds” refer to categories not explicitly listed as protected grounds in human rights legislation but are treated similarly due to their potential for discrimination. This concept acknowledges that individuals may face discrimination based on characteristics not explicitly mentioned in applicable legislation. Determining whether a ground is analogous often involves a case-by-case analysis, considering the impact of the discrimination and the specific context.

Below are some examples of individuals who might be entitled to human rights-based employment accommodations:

  • Employees with Disabilities: Individuals requiring adjustments for physical or mental disabilities, such as modified workstations or flexible schedules.
  • Pregnant Employees: Employees needing accommodations related to pregnancy, such as modified duties or time off for medical appointments.
  • Employees with Religious Practices: Individuals needing time off or schedule adjustments to observe religious holidays or practices, such as prayer breaks.
  • Caregivers: Employees who have family caregiving responsibilities, requiring flexible hours or leave to care for children or elderly relatives.
  • Transgender or Gender Non-Conforming Employees: Individuals who may require changes to dress codes, restroom access, or support during gender transition.
  • Older Workers: Employees who might need modifications to their work environment or duties due to age-related health issues.

Types of Accommodation

Below are examples of various workplace accommodations that may be provided to comply with applicable human rights legislation.

A. Physical Accommodations
  • Parking Spaces: Designated accessible parking spots close to the entrance.
  • Wheelchair Access: Ramps, wide doorways, accessible washrooms.
  • Accessible Workstations: Adjustable desks and ergonomic chairs to meet diverse needs.
  • Accessible Office Equipment: Equipment (like kitchen appliances and/or printers) at an accessible height for wheelchair use.
  • Lighting Adjustments: Adjustable lighting to accommodate vision needs.
  • Quiet Spaces: Designated areas for employees who require a low-distraction environment.
  • Break Rooms: Accessible and inclusive break areas with appropriate seating, prayer rooms and spaces appropriate for same.
  • Emergency Evacuation Plans: Customized plans for individuals with mobility challenges.
  • Signage: Clear, accessible signage in large print and braille.
  • Maintenance of Equipment: Regular checks to ensure all accessibility features are functional.
B. Policy Modifications
  • Flexible Work Hours: Allowing employees to adjust their schedules to fit personal needs or health requirements.
  • Remote Work Options: Enabling employees to perform their duties from home or other locations which can assist with areas such as family status and medical issues.
  • Modified Dress Codes: Accommodating employees’ cultural or religious practices through adjustments to dress policies.
  • Adjusted Performance Metrics: Evaluating employees based on their contributions rather than arbitrary benchmarks, ensuring fair assessments.
  • Support for Family Responsibilities: Implementing policies that allow for parental leave, caregiving support, or flexible arrangements for employees with family obligations.
C. Technological Supports (e.g., assistive technologies)
  • Ergonomic Workstations: Adjustable furniture for comfort and accessibility.
  • Adaptive Keyboards and Mice: Designed for limited dexterity.
  • Screen Magnification Software: Enlarges on-screen content for low-vision users.
  • Screen Readers: Read text aloud for visually impaired users.
  • Accessible Document Formats: Tools for creating Braille and large print documents.
  • Speech-to-Text Software: Converts speech into written text.
  • Hearing Aids: Amplify sound for those with hearing loss.
  • Video Relay Services: Facilitate communication via sign language interpreters.
  • Text-to-Speech Software: Converts written text to spoken words.
  • Communication Devices: Tools for individuals with speech impairments.
  • Environmental Control Systems: Voice or switch-operated control of workspace.
  • Assistive Listening Devices: Enhance sound in group settings.
  • Remote Work Technologies: Facilitate flexible work arrangements.
  • AI-Powered Tools: Personalized assistance for various needs.

Recent Case Law

Recent case law underscores the obligation of employers to fulfill their duty to accommodate to the point of undue hardship. It also emphasizes that employees have a vital role in this process and may not succeed in their human rights claims if they do not fully engage in the accommodation dialogue or if the accommodation request results in undue hardship. The following recent decisions illustrate these key principles:

Employee Failed to Participate in Accommodation Process – Aguele v. Family Options Inc., 2024 HRTO 991(“Aguele”):[3] A recent decision from the Human Rights Tribunal of Ontario (“HRTO”) provides important guidance for employers responding to requests for schedule changes from these employees. The HRTO found that the employee, while initially proactive in seeking accommodation for childcare needs, ultimately failed to fully engage in the accommodation process. The HRTO noted that the employee did not provide sufficient information or explore alternative solutions with the employer, which limited the employer’s ability to accommodate the request effectively. The HRTO concluded that the lack of collaborative engagement on the employee’s part contributed to the unsuccessful outcome of the accommodation request, reinforcing that both employers and employees must work together to achieve effective accommodations. The decision emphasizes that employees have a responsibility to actively participate in the accommodation dialogue, including providing necessary details about their circumstances and being open to potential compromises.

Employer Failed to Engage in Accommodation Process – Silliker v. Suncor Energy, 2024 AHRC 91 (“Silliker”):[4] In Silliker, the Alberta Human Rights Tribunal ruled in favour of an employee who claimed her employer failed to adequately accommodate her mental health disability upon her return to work. After taking a leave of absence in 2018, she was cleared to return in 2019, with her doctor providing a specific return-to-work plan. However, Suncor rejected this plan and proposed alternative arrangements that did not meet her needs. When the employee declined Suncor’s proposal, her employment was terminated on the grounds that no suitable accommodations were available. The Tribunal found that Suncor did not show a genuine willingness to engage in the accommodation process or explore options that would enable the employee to return safely. This case highlights the obligation of employers to actively participate in the accommodation process, take employees’ reasonable proposals seriously, and ensure that accommodations align with the needs of the employee.

Accommodation Request Amounted to Undue Hardship – Disbrow v. University of Victoria Properties Investments Inc., 2024 BCHRT 235 (“Disbrow“):[5] In Disbrow, the employee worked as a security attendant with the employer for 8 years. After knee surgery, the employee developed arthritis which limited her ability to climb stairs. This limitation impacted her ability to perform patrol duties associated with her job, which required frequent stair use. The employee proposed various accommodations, including accessing elevators during her shifts, reducing patrol duties, and being transferred to alternative custodial positions within the organization. The employer claimed it could not accommodate the employee without incurring undue hardship, stating that allowing elevator use could pose safety risks (due to frequent breakdowns), reducing her patrol duties would not meet operational needs, and that the only available position was a custodial job which the employee was not interested in. The Tribunal found that the employer made reasonable efforts to accommodate the employee and ruled that the accommodations she sought were either impractical or would result in undue hardship. This case demonstrates there are limits to the duty to accommodate and undue hardship can be demonstrated by the employer through evidence.

Employer Failed to Accommodate Prayer Room – Bueno v. Energy Call Solutions, 2024 HRTO 619:[6] In this case, the employee informed the employer during her hiring process that she was a devout Muslim and needed to pray periodically throughout the day. After working for the employer for about a year, the employee requested a change to her schedule during Ramadan to accommodate her breaking of the fast to attend a mosque. The employer denied this request and advised that she would have to find someone to trade shifts with. The employee later requested a quiet space for prayer, which the employer denied due to space constraints. When the employee attempted to use the lunchroom for prayer, the employer disrupted her and tried to stop her from using the space. The employer argued that providing adequate accommodation for prayer was not possible without creating hardship, citing practical difficulties and employee complaints about her use of the lunchroom. The Tribunal found the employer had failed to accommodate the employee by denying her request to switch shifts during Ramadan, interrupting her during prayer, and failing to provide adequate space in the workplace for prayer. The Tribunal highlighted that creed and religious-based accommodations may be offered by modifying break policies, using lunch or break times for prayer, providing alternative arrival and departure times, and/or offering a private prayer space. It also noted it was the employer’s obligation to educate staff about the employee’s legal right to pray and to implement policies in the workplace recognizing such right.

Best Practices for Employers

Failure to fulfill the duty to accommodate can lead to significant legal consequences for employers, including discrimination claims under applicable human rights legislation. Employers are required to engage in an interactive process with employees to identify and implement reasonable accommodations, ensuring these do not impose undue hardship on their operations. This process involves assessing individual needs and exploring various options that enable employees to perform their jobs effectively. Non-compliance can result in investigations, costly litigation, and reputational damage, highlighting the critical importance of proactive measures to foster an inclusive workplace and ensure legal compliance. Furthermore, employers who prioritize accommodation not only mitigate legal risks but also enhance employee morale and productivity, contributing to a more positive organizational culture.

To mitigate risk, employers should establish clear policies on accommodation requests, ensuring compliance with human rights laws. Regular training and open dialogue help prevent issues and promote a diverse, inclusive work environment where all employees can thrive.

Below is a list of best practices for employers to focus on to maintain legal compliance regarding the duty to accommodate:

  1. Policies: Develop and communicate policies outlining the accommodation process and have policies regularly updated by legal counsel.
  2. Training: Provide regular training for management and staff on human rights and the duty to accommodate.
  3. Dialogue: Maintain open communication with employees to discuss their accommodation needs.
  4. Individual Assessments: Evaluate each accommodation request on a case-by-case basis.
  5. Documentation: Keep detailed records of accommodation requests and decisions.
  6. Explore Options: Consider various accommodations, such as modified schedules or assistive technology.
  7. Monitor Arrangements: Regularly review accommodations to ensure they remain effective.
  8. Supportive Culture: Foster a workplace culture that values diversity and inclusion.
  9. Designate Contacts: Assign a specific individual or team to manage accommodation requests.
  10. Stay Informed: Keep updated on changes in legislation and best practices for compliance.

Conclusion

The duty to accommodate in Canadian human rights law is designed to ensure equitable treatment in the workplace. This duty involves the equal and fair participation of multiple parties, including employees and, in unionized environments, their representatives. Employees must reasonably participate in this process and cannot simply demand any accommodations they desire; they have a responsibility to communicate their needs clearly and cooperate in the accommodation process. When a union is involved, it must actively and fairly participate in the accommodation process.

Employers are legally obligated to provide reasonable accommodations based on protected grounds, which requires engaging in open dialogue with employees and carefully assessing individual needs while balancing the operational requirements of the organization. Understanding and fulfilling this duty not only helps employers meet their legal obligations but also fosters a more inclusive and supportive work environment. By implementing best practices—such as clear policies, regular training, and ongoing communication—employers can effectively mitigate legal risks while enhancing employee morale and productivity. Ultimately, prioritizing accommodation demonstrates a commitment to fairness and respect for all employees, which is essential for fostering a productive and inclusive workplace.

About the Authors

Deborah Hudson

Deborah Hudson is one of the founding partners of Hudson Sinclair LLP, where she represents both employers and employees in all aspects of labour and employment law. She was called to the Ontario Bar in 2008, and she has practiced exclusively in the areas of labour and employment for her entire career. Deborah regularly advises both employers and employees in relation to matters occurring at all stages of the employment relationship (including areas such as contracts, accommodations, human rights matters and termination). Deborah also conducts workplace investigations as an external, independent investigator relating to various workplace circumstances and allegations including harassment/bullying, human rights matters, privacy breaches and fraud.

Deborah is a facilitator with two Queen’s IRC programs: Building and Leading Teams and Fact-Finding and Investigations.

Sarah Maude

Sarah Maude is a labour and employment associate with Hudson Sinclair LLP. Sarah provides both employers and employees with advice and representation in the public and private sectors on a wide range of labour, employment and human rights issues. Sarah is a trusted advocate and has represented her clients before the courts, human rights tribunals, and labour relations boards. She regularly assists clients with human relations issues and workforce management at all stages of the employment lifecycle.

Reference List

Human Rights Code, RSO 1990, c. H.19, s. 17(2).

Aguele v. Family Options Inc., 2024 HRTO 991.

Silliker v. Suncor Energy, 2024 AHRC 91.

Disbrow v. University of Victoria Properties Investments Inc., 2024 BCHRT 235.

Bueno v. Energy Call Solutions, 2024 HRTO 619.

Footnotes

[1] Human Rights Code, RSO 1990, c. H.19, s. 17(2).

[2] This list of protected grounds is taken from Ontario’s Human Rights Code. The exact list of protected grounds varies in each jurisdiction.  For example, not all provinces list “gender expression” as a protected ground although this arguably would be an analogous ground if not explicitly listed.

[3] Aguele v. Family Options Inc., 2024 HRTO 991.

[4] Silliker v. Suncor Energy, 2024 AHRC 91.

[5] Disbrow v. University of Victoria Properties Investments Inc., 2024 BCHRT 235.

[6] Bueno v. Energy Call Solutions, 2024 HRTO 619.

 

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Do Employees Have the Right to Work from Home?

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At the onset of the COVID-19 pandemic in 2020, global workforces experienced a sudden and forced shift into remote work. That experience dramatically shifted expectations and realities for office jobs around the world. Over the last few years, workers have often expressed a preference for working remotely, and in many cases successfully continued to negotiate work from home arrangements as labour market shortages gave employees negotiating power. However, more recent shifts in the economy have resulted in less labour shortages in certain industries, and employers are now increasingly requesting that workers return into the office, at least on part-time basis. This shift was recently highlighted in August 2023 when numerous media outlets reported that even Zoom Videoconferencing requested some of its workers attend the office at least two times per week.[1] This article will explore the rights of both employers and employees when it comes to remote work.

Download PDF: Do Employees Have the Right to Work From Home

 

Footnote

[1] Goldberg, Emma. “Even Zoom is Making People Return to the Office.” The New York Times. August 7, 2023. Retrieved online: https://www.nytimes.com/2023/08/07/business/zoom-return-to-office.html

 

 

COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update

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Overview

Last year, there was much discussion on whether or not employers could legally implement mandatory vaccination policies in Canada. In the first part of 2021, COVID-19 vaccines were not readily available to all Canadians, and most employers had not implanted mandatory vaccination policies yet. By August 2021, most Canadian adults had been given the opportunity to become fully vaccinated. In this context, on August 13, 2021, the Federal Government of Canada announced the requirement for all federal public servants to be fully vaccinated by the end of September 2021. The Federal Government also instituted mandatory vaccination requirements for all employees in the federally regulated air, rail and marine transportation sectors by October 2021, while at the same time, requiring vaccination to travel by air or train effective November 2021. After the Federal government took the lead, many Canadian employers followed suit, and there was a rapid influx of mandatory vaccination policies implemented throughout the country in both public and private sectors (including unionized and non-unionized workforces).

There are now several Canadian labour arbitration decisions that consider whether or not mandatory vaccination policies in the unionized context are reasonable and justified. To date, most of these decisions have held that mandatory vaccination policies are reasonable and justified, illustrating an overwhelming consensus that employers can legally implement significant health and safety protections in the context of the COVID-19 pandemic. However, not all policies have been upheld in arbitral law. For instance, in one circumstance a labour arbitrator found a mandatory policy to be unreasonable given that workers could perform work remotely, and other measures (such as testing) could be effective in the absence of vaccination. In all circumstances the context of the workplace, along with the alternative mechanisms in the related policy, will be considered when evaluating the reasonableness of a particular policy.

This article will provide a case law update regarding the legality of vaccination policies in Canadian workplaces, updating a previous article written prior to the emergence of these decisions. While these recent decisions are directly relevant for unionized workplaces, the principles set out are useful for all employers, as the courts may consider similar principles when evaluating mandatory vaccination policies in relevant matters (such as wrongful dismissal claims arising out of the implementation of such policies). The current case law suggests that employers can implement protections against COVID-19 in the workplace, but such protections must be reasonable, balanced and relevant to the particular workplace. In the context of the COVID-19 pandemic, employers must continually consider the ongoing changes in public health direction as well as case law, as matters have continued to evolve and change quickly throughout the last two years, and so should each employers’ approach relating to health and safety measures (including mandatory vaccination policies).

Download PDF: COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update

COVID-19 Vaccinations and Workplace Rights

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Overview

More than one year ago the COVID-19 pandemic shut down most of the world. Such shutdowns gravely impacted many businesses, and otherwise shifted the landscape of working life for businesses that could legally remain open by providing working from home arrangements (when possible) or by requiring significant protective measures (for essential services). Although there is much speculation regarding how the pandemic might permanently shift working life for some sectors over the coming years (including more work from home positions), the reality is, many jobs can only be performed in person and some employers may prefer their staff attend the workplace for various reasons (such as increased productivity, improved morale, building relationships, and other reasons).

As the Canadian government attempts to ramp up its vaccination efforts, limited vaccine supplies, combined with vaccination hesitancy, have slowed the process. At the same time, Canadian public health officers have recently declared that we are in the third wave of the COVID-19 pandemic, and most recently we are seeing an increase of younger patients hospitalized, gravely ill or even dying as a result of contracting COVID-19. Unfortunately, many of these patients include essential workers (like teachers and factory workers) who may have contracted COVID-19 from workplace exposure.

In this context, Canadian employers must consider what measures can legally be taken to protect their workplace. Employers may be considering various measures such as: social distancing, personal protective equipment (“PPE”) and vaccination requirements. At the same time, some employees may have strong opinions or views on why they do not wish to get vaccinated. Other workers may have religious reasons or health related issues that preclude them from getting vaccinated. With all of these considerations, many employers and employees alike want to know their legal rights relating to the imposition of workplace vaccination rules. Balancing COVID-19 protections with workers’ rights is a difficult and unprecedented circumstance that many employers will face in the coming months. This article will discuss legal issues and considerations relating to implementing requirements or policies around COVID-19 vaccinations in Canadian workplaces and other related solutions to consider when trying to protect the workplace from a COVID-19 outbreak.

Please see the updated version of this article, published on Feb 10, 2022: COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update 

Evidence Collection: Practical Tips for Workplace Investigations

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Overview

Workplace investigations have become commonplace across Canada. Many Canadian jurisdictions require that employers implement workplace harassment and discrimination policies, which often include mandatory investigation provisions. Whether or not investigations are legally mandated, it is sound practice for an employer to conduct an investigation when there may be potential workplace harassment, human rights violations, breach of company policy, criminal activity, security breaches, legal action, or media scrutiny.

A fair and reasonable investigation can provide a defense for employers to assist in future litigation and/or human rights complaints.[1] Beyond legalities, investigations can also assist employers in identifying and resolving workplace issues, helping them to create a more productive and healthy working environment. For all of these reasons, workplace investigations provide an important function in today’s workplace. However, an investigation will only be useful if it is conducted in a fair and reasonable way.

Collecting the evidence is a fundamental step in conducting a fair investigation. Evidence may include witness statements, video surveillance, supporting documents (emails, letters, phone records, time sheets, text messages, photographs) and any other useful information regarding the relevant issues. While many witnesses may participate in good faith, people’s memories are not always reliable, and co-workers may share stories before an interview which could taint recollections. Further, not all witnesses will participate in good faith, resulting in dishonest and/or inaccurate witness statements on some occasions. Because of witness unreliability, workplace investigators should adequately instruct witnesses on confidentiality, while also making best efforts to collect and to preserve supporting documents when available. Following proper processes will assist investigators in ensuring that they have meet the good faith standard as required to conduct and complete workplace investigations. This article will highlight important considerations in collecting and preserving evidence when conducting a workplace investigation.

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[1] See for instance: Morgan v. University of Waterloo, 2013 HRTO 1644 (CanLII) where the HRTO held that the university’s response to the complaint was “reasonable” and that the university had met its duty to investigate the circumstances; therefore, the award for damages came from the individual respondent only (and not the university). In this regard, a reasonable response and proper investigation can vitiate liability even in a circumstance where there is a finding that workplace harassment occurred.

Fireable Offences Without Defences

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Overview

Considering the difficulty in proving just cause, along with the potential monetary consequences for improperly alleging just cause, employers should engage in sufficient procedural steps prior to asserting just cause for termination. Such steps would likely include engaging in a thorough and fair investigative process and/or providing employees with warnings in relation to misconduct. Termination for ‘just cause’ (and without notice) is often described as the capital punishment of employment law.  Consequently, employers face a significant burden when trying to prove just cause at law. Arguing just cause for dismissal may be difficult, but not impossible, especially in circumstances involving dishonesty or lack of trust.  Nevertheless, employers should always exercise caution when making just cause allegations, because a legally unsubstantiated just cause termination can be costly. If an arbitrator overturns an employer’s termination decision in a unionized environment, this can result in a decision that reinstates that grievor and provides him or her with significant back pay. Non-unionized employees will generally not be entitled to reinstatement, although, unsubstantiated just cause allegations can be equally expensive. Canadian courts have often awarded significant additional bad faith and/or punitive damages in cases where employers create economic hardship by erroneously asserting just cause and failing to pay an employee’s notice entitlements.

Progressive discipline is one factor adjudicators consider when reviewing a just cause termination, and case-law provides that even a minor offence may justify just cause for dismissal if an employee’s disciplinary record is sufficient. Although certain types of conduct (such as theft or violence) may be more likely to warrant discharge on first offence, employers must always take a contextual approach and view mitigating factors, which may include: lengthy seniority, clean record, condonation, admission of wrongdoing and/or remorse. Further, employers should always consider whether or not there are any potential human rights considerations linked to the misconduct.  For instance, does the employee have a disability that has contributed to the conduct (such as a health condition, addiction or other mental illness)?

Employees facing allegations of misconduct should seek appropriate professional advice to understand what factors may assist in potentially saving their employment relationship (such as candour, honesty and recognition of wrongdoing during the investigation process).

This article will review various decisions upholding a just cause termination, while also canvassing the factors and considerations that impact the determination of whether or not a just cause allegation may be substantiated at law.

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Workplace Harassment After #MeToo

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On October 5 2017, the New York Times published an article detailing serious sexual harassment allegations against famous Hollywood producer Harvey Weinstein.[1]  Three days later, his company’s Board of Directors terminated his employment effective immediately.[2] In this context, actress Alyssa Milano took to Twitter, encouraging all women who have been sexually harassed or assaulted to change their status to “Me Too” (a hashtag originally coined by activist Tarana Burke) in order to give people a sense of the magnitude of the problem.[3]  Since then, “Me Too” hashtags spread virally across the world’s social media accounts, having reportedly been posted or commented on millions of times.[4] The women who came forward about sexual harassment allegations were referred to as “silence breakers”, and Time Magazine named these “silence breakers” its “2017 Person of the Year”.[5]  This movement led to an outpouring of new allegations against various male celebrities and public figures on an ongoing basis.  What followed was the rapid downfall of many of those accused, leading to prompt resignations and terminations from their respective roles.

Meanwhile in Canada, two high profile politicians recently resigned promptly after public allegations of sexual harassment and/or misconduct were made.  Amidst the #metoo movement, the Toronto Rape Crisis Centre reported an increase in calls.[6] It appears many employers experienced a similar spike in sexual harassment related complaints, likely due to heightened awareness of the issues and women encouraged to speak out by those who already had. Workplace sexual harassment is a complicated subject.  It involves far more than inappropriate comments or unwanted sexual advances. Sometimes consensual relationships can be considered sexual harassment when a significant power imbalance exists. Consensual relationships gone sour can turn into sexual harassment if reprisals or unwanted advances occur after the relationship ends.  Joking co-workers and jock culture may create a toxic working environment for those exposed to it.  Complainants may not wish to come forward due to fear of losing their jobs.  Not all complaints are meritorious, leaving some respondents wrongly accused, stigmatized and/or wrongfully dismissed.  When receiving a sexual harassment complaint, employers have an obligation to inquire most often by way of an investigation.  Third-party or external investigators may be most appropriate in sensitive situations. Given the complexity of sexual harassment issues, findings and fault may not always be clear cut. In some cases, employers should terminate the respondent.  In other cases, substantiated findings may not warrant termination, but instead discipline and training. The workplace culture must be considered and may require change, and every circumstance must be considered based on its own facts.

The #metoo movement has empowered many women who were the victims of unjust behaviour to come forward, although the movement has its own inequities by persecuting and often impacting the livelihood of the accused without due process, or any process whatsoever.  The court of public opinion quickly makes judgment, but employers should not do the same. Due process is important for all parties, as an employer has an obligation to all of its employees, both in terms of maintaining a safe workplace for all, and in terms of not summarily dismissing someone simply because an allegation is made. This article will explore the complex considerations regarding sexual harassment in Canadian workplaces, consider the roles and obligations of all parties involved, and review the importance of investigations and due process in relation to workplace sexual harassment complaints.

Download PDF: Workplace Harassment after #MeToo

 

[1] Jodi Kantor and Megan Twohey.  “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades”, NYTimes.com, last modified October 5, 2017, https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html

[2] Robehmed, Natalie.  “Harvey Weinstein Fired From The Weinstein Company”, Forbes.com, last modified October 8, 2017,https://www.forbes.com/sites/natalierobehmed/2017/10/08/harvey-weinstein-fired-from-the-weinstein-company/#12af4f216681

[3] Milano, Alyssa (@Alyssa_Milano). “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”  15 October 2017, 1:21 pm. Tweet.

[4] Unknown. “More than 12M “Me Too” Facebook posts, comments, reactions in 24 hours”, CBSNews.com,  last modified October 17, 2017, https://www.cbsnews.com/news/metoo-more-than-12-million-facebook-posts-comments-reactions-24-hours/

[5] Stephanie Zacharek, Eliana Dockterman and Haley Sweetland Edwards “Time Magazine Person of the Year”. Retrieved from: http://time.com/time-person-of-the-year-2017-silence-breakers/

[6] McLaughlin, Amara. “Toronto sexual assault, harassment services flooded by calls triggered by #MeToo movement”, CBC.ca, last modified October 27, 2017, http://www.cbc.ca/news/canada/toronto/toronto-sexual-assault-harassment-services-flooded-by-calls-triggered-by-metoo-movement-1.4375827

The Golden Years: The Aging Workforce and Human Rights Matters

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Overview

Employers can significantly benefit by retaining and hiring older employees who may offer considerable knowledge, experience and insight, along with dedication and work ethic. All of these benefits are accompanied by a unique set of human rights considerations related to our aging workforce, including age discrimination and age related disability.    As the Canadian population ages, so does our workforce. Mandatory retirement programs have generally been outlawed (with few exemptions), and many Canadians now choose to work into their 60s and 70s for various reasons including: fulfillment, financial gains, longer life spans, lack of savings and failed pension plans.

With respect to age discrimination, employees may experience ageism within an ongoing employment relationship, or when trying to secure a new job later in life. Older employees may feel like they are being forced to retire or may be passed up for deserved promotions on the unverified assumptions they will not be working too much longer. Older employees may also be targeted for termination, when they had intended to work for several years more. Persons seeking new jobs later in life may experience age discrimination during the recruitment process.

With respect to age-related disability, older employees may experience medical issues, and employers must accommodate age-related health issues in the exact same way that any other disability is accommodated. Some disabilities are far easier to accommodate than others. A defined physical limitation may be readily accommodated on a permanent basis by using an assistive device, whereas an invisible disability and/or cyclical disability may require a more flexible accommodation approach. For instance, an employee experiencing certain forms of arthritis may feel significant pain and require time off during flare-ups; however, the cyclical and sporadic nature of the required accommodation could present scheduling challenges.  Far more challenging is understanding and accommodating a brain disorder (such as Alzheimer’s disease or dementia).  In such situations the employee may not even be aware of their own health issues, and the employer will be tasked with determining if any medical conditions even exist and if so, if such can be accommodated.

The aging population may also result in increased requests for family status accommodations, when children or relatives request time off to assist in the caregiving needs of their elders.

This article will explore some key human rights considerations and interesting case-law related to our aging workforce.

Download PDF: The Golden Years: The Aging Workforce and Human Rights Matters

Invisible Barriers: Accommodating Mental Illness in the Workplace

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Mental illness is a leading cause of disability in Canada.(1) In fact, at least 500,000 employed Canadians are not able to work due to mental health problems in any given week.(2) Twenty percent of Canadians will personally experience a mental illness in their lifetime, and it is likely that all of us will be directly or indirectly impacted by mental illness through family members, friends or colleagues.(3) As Canadians and medical professionals increase awareness and understanding regarding mental illness, our workplace and human rights laws similarly evolve in attempts to protect mental illnesses like any other disability. While our laws strive to provide adequate workplace protections in relation to mental illness, the art of managing mental health accommodations remains challenging for employers and employees alike.

Visible or physical disabilities can often be easier to understand and to accommodate. Defined physical restrictions or recovery periods provide finite terms which are easier to address and are easier to accept as legitimate needs. Accommodating the invisible barriers presented by mental illness often remains far more challenging. Many persons experiencing mental illness may not wish to share details in the workplace, fearing stigmatization, embarrassment or privacy issues. Other persons may lack awareness that they are undergoing a health-related issue. For example, those struggling with addiction may have little or no self-knowledge that a medically recognized disability drives their compulsion to use. Adults experiencing their first episode related to mental illness may not recognize the signs and symptoms until weeks, months or years after the occasion.

Employers face a variety of different but equally challenging situations. For instance, when an employee silently struggles, employers may be tasked with difficult conversations to ensure adequate inquiry while not overreaching. The inability to clearly define prognosis and restrictions related to mental illness can make it difficult for employers to differentiate between legitimate medical needs versus employee abuse. Employers also often receive questionable and seemingly unsubstantiated accommodation requests, for instance: he cannot work Tuesdays or he cannot drive a Smart Car. No matter how obscure, employers should carefully consider each circumstance on a case-by-case basis and request adequate medical information without overreaching. Even in the very best circumstances where the employer and the employee harmoniously work together, difficulties may arise since the unpredictable and episodic nature of some mental illness can create attendance and staffing issues, and create obstacles even with good faith accommodation efforts.

Understanding and accommodating mental illness is an evolving area that requires a flexible approach. This article will discuss the key legal requirements and interesting related case-law related to workplace mental health issues.

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Workplace Bullying and Harassment: Costly Conduct

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As media scrutiny over schoolyard and cyberbullying pervade the news, allegations of workplace harassment and bullying are on the rise. Media reports reveal the deleterious and even deadly impact that bullying can have on children in our communities. Unfortunately for employers, adults in our workplaces sometimes engage in similar transgressions. While the popularization of the terms “bullying” and “harassment” has both educated and empowered employees to assert the right to a respectful workplace, it has conversely sometimes resulted in overuse of the terms and meritless complaints in relation to reasonable management measures. Employers are left with the difficult task of managing all competing interests to ensure a safe, respectful and productive work environment.

One Canadian professor previously estimated that a whopping 40% of Canadians experienced one or more acts of workplace bullying at least once a week.(1) Although it is difficult to determine exactly how much harassment and bullying actually occurs in Canadian workplaces, we can be certain of the impact of such conduct. Workplace bullying and harassment create a toxic work environment resulting in many negative effects which may include: decreasing productivity, increasing employees’ use of sick days, damaging employee morale and causing attrition of good employees. It can also result in significant legal liabilities. Considering all of these potential impacts, the tangible and intangible costs of workplace harassment and bullying can be high. This should be reason enough to motivate employers to expeditiously address such issues; however, for those not motivated by practical business measures or healthy employee relations, we should also consider the expansion of Canadian laws to protect workers from harassment and bullying, and the significant liabilities that can arise when such issues are not properly addressed.

Download PDF: Workplace Bullying and Harassment: Costly Conduct

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