Human Rights in the Workplace

Lessons to be learned from the Siloam Mission resignations

2009-12-21T23:06:53-06:00

In this past weekend's edition of the Winnipeg Free Press, Gordon Sinclair Jr.wrote an article called "When personal is so much more". It was a piece addressing the fall-out from the alleged affair between Siloam Mission's CEO and Director of Communication and Development, both of whom recently resigned their positions and left the organization. It's a sad tale, as sometimes occurs when two people in a workplace become intimately involved and the relationship fails to work out. But, as is often the case when things go terribly wrong in a workplace, there are important lessons that can be learned.

LESSON #1: human rights legislation does not look to stand in the way of consensual sexual relationships between persons in the same workplace. Employers need to understand, though, that there are risks that may be run in situations where the people involved in an apparent consensual relationship are of differing levels of authority or power in the workplace.

LESSON #2: a person in a position of power who engages in a sexual relationship with a subordinate risks a negative inference being made against him or her that the relationship was not truly consesual simply by virtue of the fact that they have authority over the other person in the workplace. In other words, the assumption will be that the subordinate felt pressured or otherwise obligated by virtue of the work relationship to enter into the sexual one. As a result, the law places a high degree of responsibility on the person in the "power position" to ensure consent. Because of the view the law takes of supervisor-subordinate intimate relationships, it is very difficult for the person in authority (and the employer) to defend against a subsequent harassment complaint by the subordinate employee if the relationship goes in the tank.

LESSON#3: An office romance between individuals of differening power can also create other problems for an employer. The person in authority may find themselves in a conflict of interest in the sense that they are now unable to make rational and reasonable decisions relating to the person they were involved in the relationship with. At the very least, there will be an appearance of a conflict of interest. In addition, the person in authority will be in a prime position to retaliate against the person they were involved in the relationship with, should they decided to react in that fashion. Retaliation can, in these types of circumstances, be viewed as a specific form of sexual harassment.

LESSON#4: Openly romantic relationships can contribute to a poisoned work environment for other employees. For example, if the people involved in the relationship are explicit in their sexual conduct in the workplace, this can cause tremendous discomfort for others in the workplace, leading to a broader-based harassment claim. Alternatively, should problems in the relationship occur and spill out into the greater workplace, this can, again, impact others.

What to take from these lessons?

It is important for workplaces to recognize that their employees may develop romantic relationships with their co-workers. That isn't something neatly within an employer's control. What is in a workplace's control, though, is the measures it takes to prevent inappropriate supervisor-subordinate sexual relationships from forming and how it reacts when those relationships are discovered. In my view, it is wise for employers to caution all persons in positions of authority against getting involved in romantic relationships with those they supervise. It is good practice to stipulate that supervisors immediately disclose the development of such relationships so the employer can take appropriate steps to address the situation and limit its liability exposure. Disciplinary consequences should be tied to the failure to make such a disclosure. Alternatively, employers need to keep their eyes and ears open for signs that an intimate relationship may be occurring between a manager and employee to enable quick intervention. In both situations, the employer would be best advised to remove the subordinate from the supervisor's authority right away.

I certainly do not know what happened between the people involved in the Siloam Mission story. Hopefully, though, the lessons that can be gleaned from the fall-out relating to that situation can serve to prevent such unfortunate circumstances from occuring in your workplace.

I'd be interested in hearing any stories you have about how your workplace handles office relationships.

Thankful thoughts for 2009

2009-12-20T21:31:27-06:00

A number of years ago now, my husband and I started an annual tradition of reflecting on what we had accomplished individually and as a family over the course of the past year, what we were thankful for overall, and then we set out goals for the year that was ahead. We set aside time in our calendars just before New Years' Eve, head out to a local restaurant for breakfast, I bring along my laptop and we map out where we've been, where we wish to go and what we wish to do in order to feel, by the end of the year, that we have made a contribution to our family and our community. Two years ago, when our daughters turned 4, we decided to incorporate them into our annual routine. After my husband and I have had our "team meeting" we then sit down with each of our girls, ask them what they were thankful for over the past year and what they would like to accomplish in the upcoming year. By undertaking this exercise for ourselves and with our daughters, we believe that this helps, on the one hand, to ensure we take the time to appreciate the good things that have happened to us and, on the other hand, to establish things we can do to improve ourselves, our lives and the lives of others as we move forward in life.

So, as I gear up for my big meetings with my husband and my daughters next week, I wanted to say to all of you a big thank you for reading my posts, forwarding them on to others you think may benefit from what I have to say and for taking action in your workplaces based on what you have learned here. I appreciate and enjoy the feedback that many of you have given me since I started this blog over two years ago. I haven't had as much time this year to write as I have in the past, which has disappointed me to some extent. But, my business has grown leaps and bounds in 2009 and so, while I wish I had written more, I have been very busy working directly with a wide variety of workplaces in Manitoba and elsewhere in Canada. To those of you who have chosen to work with me this year I send a heartfelt thanks and look forward to being able to provide you with continued help in the New Year.

I wish each and every one of you the very best health and happiness as we end 2009 and move into 2010.

Take care!

My picks for the 2009 CLawBies

2009-12-16T22:39:08-06:00

I like December for a lot of reasons. No, the Manitoba "dry cold" is not one of them, but the fact that it is CLawBie nomination time definitely is! Long-time readers will know that the CLawBies are the Canadian Law Blog Awards initiated by Steve Matthews of Stem Legal back in 2006. In December of every year since, bloggers from the Canadian legal industry as well as their readers submit their top three picks for the 'best of' in the Canadian legal blogosphere. On New Year's Eve, the "winners" are announced (no trophies are exchanged, but you get a nifty little badge that you can put on the home page of your blog!!). I like Clawbie nomination time because I find it great fun to think about what Canadian legal-related blogs have influenced me throughout the past year and to post about my picks -- so, here goes:

1. My top pick of the year is Brian Bowman's On the Cutting Edge. I have to admit that my vote goes to Brian partly because I found it nice to finally have company -- prior to his entry into the blogosphere this year I held the informal title of being Manitoba's only blogging lawyer since August 2007 when I started my blog. But, the big reason he gets my vote is because I find his blog to be interesting reading and useful in the work that I do. Brian blogs about privacy law, access to information, online reputation management, intellectual property and technology matters and given I do a great deal of workplace investigations, I need to be up-to-date on privacy related issues in particular. So, for me, Brian's blog is a must-read. Brian's entry into the blogosphere was really just a natural progression given he has been writing articles in the business section of the Winnipeg Free Press under the same "On the Cutting Edge" name for years now. With his blog, an even broader audience will benefit from his insights;

2. My second pick is David Doorey's Workplace Law Blog. David is a professor of labour and employment law in the School of Human Resource Management at York University. He blogs about case law, items in the news and interesting issues all relating to Canadian labour and employment law. While he started his blog initially to engage with his students, it has certainly become a reading staple for practicing lawyers like me. I voted for David's blog last year because I thought it was a great new blog to come on the scene. This year he gets my vote because of the collegial way he and I have been able to engage, using our blogs. He has been kind enough to give me a heads-up on cases that he thinks my readers might have an interest in me covering. We have also done a bit of cross-posting (or creating a conversation) between our two blogs this year which I personally think is one of the great things about blogging -- exchanging ideas and opinions on interesting legal issues. But, if I was really being honest here, I'd have to say I have a soft spot for David and his blog because I think I secretly covet his job :) (my first love is teaching, with practicing law coming in a close second).

3. My last pick is Slaw. Slaw is a co-operative weblog covering pretty much anything that has a connection to Canadian law and it does that in spades. Since I started following this blog a few years ago it has grown leaps and bounds and now has so many contributors I've lost count. In fact, it has grown so much that I sometimes find it hard to keep up with the blog's multitude of posts, but I always find something in my feedreader from Slaw that is of interest and use to me. I do have to admit, though, that because of the sheer volume of content coming from Slaw I have taken to scouting out posts from particular Slaw contributers -- David Bilinsky, Dan Michaluk, Steve Matthews, Jordan Furlong, Omar Ha-Redeye always top my list because they produce content I find personally relevant.

So, those are my top 3 nominations for the Clawbies for 2009. I urge you to check out my picks but, certainly, don't stop there as there is so much great blog content being produced by lawyers and legal professionals all across the country. Check out the list of Canadian law blogs maintained by Steve to find out what other gems you might want to add to your regular reading.

And, if you're interested in casting your vote for the Clawbies, Steve has provided 3 easy ways (I think the man likes the number 3 for some reason!!) to do so:

"Between now and Monday December 28th, publicly nominate a Canadian authored legal blog using ANY of the following methods:

Tweet your endorsement on Twitter.com along with the hashtag text: #clawbies2009. We’ll be monitoring!

Email your favourite blog, along with a sample post or two, or any other notable highlights to Steve Matthews at steve@stemlegal.com. It’s not a public nomination, but still acceptable.

Or the most influential method, write a blog post about three other Canadian law blogs you currently read and tell us why those blogs are important to you."

Twitter talk - November 27, 2009

2009-11-30T00:00:00-06:00

It's been a while since I've posted about the talk on Twitter but there have been a lot of interesting articles and posts I've been mentioning that I thought readers of this blog would want to know about. Here goes:

Does the Cdn legal profession discriminate against 'visible minorities'? http://chilp.it/?bb431e

Ideas on creating accommodating wkplaces for older workers. http://chilp.it/?398b29

Great advice on valuing diversity in the workplace. http://chilp.it/?b77bb9

Ontario employers still hesitant to hire people with disabilities http://chilp.it/?f46997

Does your workplace suffer from 'gender fatigue'? http://tiny.cc/aFGyW

Insurer stops paying disability benefits over Facebook photos. http://chilp.it/?aebd9a

By age 9, children aware of racism, affected by it http://chilp.it/?397a52

Guideline on Accommodating Students with a Disability helping in New Brunswick http://chilp.it/?f239d7

Happy reading!

Pregnancy discrimination in the workplace still a very live issue

2009-11-26T11:38:16-06:00

In a recent Globe and Mail article discussing a similarly recent decision of the Human Rights Tribunal of Ontario relating to a young woman who had been fired by her employer after finding out she was pregnant, the following advice was given:

"...it's wise for women to think strategically about when to disclose a pregnancy to employers.."

Photo credit:buzzybee

One would think that we're past the point where, in addition to worrying about getting to that all-important first trimester before we normally feel comfortable enough announcing our pregnancy to the world, that women have to think critically about when to announce their pregnancy to a potential or current employer. But, sadly, that's not the case as is highlighted by the tale of Jessica Maciel v. Fashion Coiffures Ltd. and Crystal Coiffures Ltd..

After graduating from a business college, Ms. Maciel, at age 20, applied for a full-time receptionist position with two related hair salons. This was to be her first full-time job. At the time of her application, Ms. Maciel was four months pregnant. She made no mention of her pregnancy either at the time she applied for the job or upon being offered the job. Unfortunately for her, though, she was fired the same day she started. The employee claimed she was let go after experinencing nausea and disclosing her pregnancy to the person training her. The employer claimed it was unaware that their new employee was pregnant when her employment was terminated. Instead, the employer said that Ms. Maciel had indicated during her first day of work that she no longer wanted to work full-time. This was a game-changer from the employer's perspective, as it needed someone to work day shifts during the week and contended that there was no part-time work available.

The Human Rights Tribunal of Ontario did not, however, buy what the employer was selling, primarily because the employer's defense of Ms. Maciel's termination lacked credibility. The Tribunal honed in on a number of problems with the employer's position, the key ones from my perspective being as follows:

the employer failed to put forward a credible reason why Ms. Maciel, having applied for and accepted a full-time position, would propose working part-time on her very first day of work when she was no longer in school and had no restrictions on her ability to work full-time;
the employer's contention that Ms. Maciel requested part-time work did not make sense in light of the fact that:
- the employer admitted it did not ask any questions about when and how many hours Ms. Maciel might be able to work yet apparently promised her that it would find out if other salons in the same mall were looking for a part-time receptionist. The Tribunal questioned how this would be possible when the employer had no information about Ms. Maciel's availability to give these other salons;
- Ms. Maciel would have needed to work at least 30 hours a week between her start date and her due date in order to be eligible for Employment Insurance benefits;
- the employer shredded Ms. Maciel's employment contract yet took the time to outline in a letter to her post-termination that there was no part-time position available and specifically set out which hours Ms. Maciel was expected to work. The Tribunal found this letter to be "carefully constructed" and consistent with Ms. Maciel's assertion that she received it after advising the employer that it was discriminatory to fire someone because they were pregnant and making a request for a copy of her contract.

After Ms. Maciel was fired by the salons she attempted to find other work. But, interestingly, as her pregnancy was far more visible at this point, she found herself unable to obtain further employment.

In the end, the Tribunal ordered the salons to pay Ms. Maciel $15,000.00 in general damages, $20,719.00 in lost wages and benefits (due to her inability to claim EI benefits) plus applicable interest on those amounts. The salons were also ordered to jointly prepare a written policy detailing accommodations to be made to pregnant employees and maternity/parental leave practices that would apply post-birth.

Business (in)convenience does not trump human rights protections

Given some conversations I have had in the past, I know that there are likely some employers who will read this decision and think that it is completely unfair to the business owner. They will say that it was inappropriate of Ms. Maciel to fail to disclose her pregnancy when she applied for the job. They will say that they had the right to know she was pregnant given that they were hiring someone to do a particular job for the foreseeable future, without having to look for another replacement a few months down the road. They will point out the costs and time involved with hiring and replacing employees, and the business limitations associated with needing to keep a comparable position open for a female employee to return to after completion of her maternity leave. Others will say that Ms. Maciel was fired during what could be considered her probationary period so the employer was fully in its rights to terminate her for any reason. [And, just in case you're wondering, I've heard these concerns being raised by female business owners as well as from male business owners -- keep in mind, too, that in the Maciel case, she was fired by, you guessed it, a woman].

While I certainly understand these arguments, particularly when the business in question is relatively small and subject to a potentially greater impact whenever any administrative challenge arises, if these arguments were allowed to win the day women would simply disappear from the workplace -- once again. The major problem with these arguments is they are all predicated on a model of business convenience (or inconvenience, depending on your perspective). And the problem with the model of business convenience is that it will never be convenient for any business to employ anyone who gets pregnant and has to temporarily leave the workplace -- which, coincidentally, only impacts women. These arguments also suffer from a fatal logical flaw. Whenever any employer hires any person, regardless of sex, there is never a guarantee that that employee is going to work out or that the employee is going to remain in the workplace without interruption. Beyond that, you should know that human rights protections apply regardless of whether you are a job applicant, a new hire or a long-time employee of a business. There is no "pass" on human rights law obligations during a person's probationary period or otherwise.

Strategy is the best policy -- unfortunately

Ms. Maciel might have been the best darned employee the salon owners in this case had ever hired. Instead, not only will the salons never find that out but they are now faced with having to pay a large damage award and recovering from a huge public black eye associated with the negative publicity following from the Tribunal's decision. Keep in mind that this is a workplace where it appears women predominately work and I would presume is a business frequented by female customers.

It turns out that applying strategy in disclosing a pregnancy is still, in fact, the best policy for a woman to adopt when applying for a job or when already gainfully employed. It's, unfortunately, a lesson that even today Ms. Maciel had to learn the hard way.

Top 100"ish" Employment Law Blogs for 2009

2009-11-12T22:15:51-06:00

I am always amazed at bloggers who take the time to put together lists of useful information and then publish it so the rest of us can learn.

Molly DiBianca, a lawyer at US law firm Young Conaway Stargatt & Taylor LLC and contributor to the engaging Delaware Employment Law Blog is one of those fabulous list-makers. She recently posted her list of the Top 100 Employment Law Blogs across the legal blogosphere (so, it includes US and Canadian law blogs, and, actually lists 110 blogs -- so that's why the "ish" reference in my title!). As is usually the case when I scan through lists like these, I always learn of a new and interesting blog to add to my regular reading. It was very kind of Molly to include this blog on her list. Have a look!

Lack of accommodation on return to work has food service company eating crow

2009-10-30T10:44:53-05:00

In Tofflemire v. Metro (Windsor) Enterprises Inc., the Human Rights Tribunal of Ontario examined the efforts made by a food and drink services company to accommodate a long-serving employee upon his return-to-work after having a heart transplant. The Tribunal determined that the company's efforts were woefully inadequate and awarded damages to the employee as a result.

The Facts

Mr. Tofflemire began working for Metro Enterprises in 1981. His work involved driving a mobile catering truck on designated routes selling food and drinks at construction job sites. Mr. Tofflemire also happened to have a history of heart-related problems and required modification to his job from April to September 2006, which the company provided.

In mid-September 2006, Mr. Tofflemire left work to have a heart transplant, which ultimately took place in June 2007. While he was recovering from his surgery, Mr. Tofflemire maintained contact with his employer and Metro expressed the desire to see their employee return to work.

In March 2008, Metro wrote to Mr. Tofflemire's doctor asking him to identify which functions of the mobile catering job Mr. Tofflemire could perform. The doctor advised that the employee would require a modification to his duties that would limit him from lifting no more than 10-15 pounds initially but then Mr. Tofflemire could increase the lifting weight as he was able to tolerate it. Further, the doctor recommended the following return-to-work schedule:

initial return-to-work for 2 hours per day for one month;
move to four hours a day for a further month until Mr. Tofflemire was able to work a full eight hour day.

Mr. Tofflemire returned to work on April 7, 2008. He worked two hours a day for one week in the stock-room. He next returned to work on June 9, 2008 and worked in the stock room for two hours a day for a period of two weeks. The employer then took the position that there was no further available work for Mr. Tofflemire in the stock room.

So, Mr. Tofflemire expressed a desire to be transferred to the company's vending machine division which would involve supplying food and drinks to vending machines at a number of locations. He held the view that the vending machine position would be less stressful than his catering truck position. There were six permanent jobs in the vending division, all filled by long term employees. There was, however, a summertime replacement position held by a person who was hired at the beginning of the summer of 2008 and, given Mr. Tofflemire's seniority, he knew he could bump this person. Mr. Tofflemire was fully aware that this was a temporary position but he was prepared to do the job for that temporary time period and then resume discussions with Metro about how he could be accommodate further after the job ended. Mr. Tofflemire obtained a letter from his doctor stating that by the end of June 2008, he was medically cleared to work a 7 hour day.

In early July 2008, Mr. Tofflemire met with his employer to discuss his return to work. During the meeting, Mr. Tofflemire said he was told by the company's President that the vending division had no job for him and that he would have to go back to the catering division. The President recalled that the company had, instead, asked Mr. Tofflemire to provide a functional analysis form to indicate he was capable of carrying out the job functions of the vending position but this was never provided. Mr. Tofflemire denied being asked to complete such a form.

On July 27, he filed a grievance alleging that the company had not reinstated his employment even though he had been cleared to return to work by his doctor. The next day, the company wrote to Mr. Tofflemire offering him a customized seven hour per day mobile catering route. During the grievance process, the company indicated that they did not want to assign Mr. Tofflemire to any position in the vending division. Ultimately, the union concluded that Metro's job offer of the modified catering position was reasonable in the circumstances.

On July 31, Mr. Tofflemire wrote to his employer to say he would consider the proposed job offer after seeing his doctor on August 5 and that he would be in contact with them the week of August 11. On August 5, Mr. Tofflemire's doctor wrote to Metro advising that Mr. Tofflemire should neither take on a job that required 10 hour days nor should the job involve long periods of exposure to the sun (as long exposure to the sun increased the risk of skin cancer in transplant patients).

Subsequently, the company's President met with Mr. Tofflemire's union representative. But, the President simply advised that transfers between divisions were not possible.

On August 18, 2008, the employer wrote to Mr. Tofflemire to state that they had not heard anything from him. They advised that they were taking his lack of response to mean that he had turned down their job offer, was no longer seeking his job, seniority or other rights and, as a result, they considered his file to be closed. Metro did not, however, take steps to formally sever Mr. Tofflemire's employment after sending this letter and at no point issued a Record of Employment.

Mr. Tofflemire alleged that Metro Enterprises and its President, in his personal capacity, discriminated against him in employment on the basis of disability in that it failed to provide him with reasonable accommodation when he sought to return to work following his surgery. He also contended that the failure of Metro to issue a Record of Employment was also discriminatory as it deprived him of his rights to collect termination and severance pay under Ontario's Employment Standards Act.

The company and its President asserted that its July proposal to have Mr. Tofflemire return to a modified mobile catering route position was reasonable accommodation. It was Metro's view that the job had shortened hours (7 hours), was less stressful and although it required Mr. Tofflemire to be outside that did not necessarily mean he would be exposed to an undue amount of sun as he could use sunscreen, wear protective clothing and park his truck in a shady area. The company, in essence, argued that it would be an undue hardship for it to place Mr. Tofflemire in the vending division. It was pointed out that transfers into the vending division had become less attractive over time because layoffs from the vending division would be done on a seniority basis and someone coming into that division could lose their job if they were junior to current members in the vending division (due to the vending division operating under a different collective agreement). Concern was expressed that existing vending division employees might come to resent the accommodation of Mr. Tofflemire in that division. The company noted that it was also at the point of downsizing the vending division from six to three positions. Finally, the company took the position that there was a general economic downturn that was impacting the company's financial status and if they had to create another position in the vending division to accommodate Mr. Tofflemire, it would have cost $53,000 in salary at a time when the company was losing money.

The Decision

The Tribunal concluded that if the company had not received the August 5 doctor's letter indicating that Mr. Tofflemire needed to avoid long term sun exposure, this complaint would not have succeeded. The Tribunal indicated that as the proposed mobile catering position included modifications regarding the length of hours to be worked (reducing them from 10 hours to 7) coupled with changes to decrease the stress of the job it would have, absent the doctor's letter, met the duty to accommodate. But, the doctor's letter was found to have changed Mr. Tofflemire's circumstances and required the company to re-examine its accommodation proposal. However, after receiving the August 5 doctor's letter, the Tribunal determined that the company did little to reconsider its position, failed to meet with Mr. Tofflemire and, instead, wrote its August 18 letter saying they were closing his file.

According to the adjudicator:

"...the respondents did not want to reconsider whether their offer of a modified catering job was reasonable or to reconsider the applicant for any position in the vending division because they believed this might entail further difficulties for them. I believe that they felt their best strategy to manage the situation was to end the discussion on accommodation with the applicant, as demonstrated by their August 18 letter."

The Tribunal rejected the company's argument of undue hardship pointing out that all of the concerns that had been raised related to a permanent transfer of Mr. Tofflemire into the vending division. However, Mr. Tofflemire was only seeking to be considered for the temporary summer job available in that division. The company had not raised any undue hardship issues relating to that proposal. Concluding that the company and its President had made inadequate efforts to reconsider the ability to accommodate Mr. Tofflemire in light of the August 5 doctor's letter, the Tribunal pointed out:

"A reasonable accommodation in these circumstances could well have been to place the applicant in the temporary summer position. It is true that this would have only been a short term solution but it was an alternative the respondents did not meaningfully pursue after receiving the August 5 letter. In taking no substantive action the respondents failed both in terms of procedure and substance to meet their duty to accommodate the applicant." (emphasis added)

In terms of remedy, the Tribunal ordered that the company and its President pay Mr. Tofflemire $7,500 in general damages and, in addition, lost wages. The company was also ordered to resolve his employment status and provide any entitlements under the Employment Standards Act.

What to take from this case:

The Tribunal's decision is a great reminder to employers that the duty to accommodate employees is an ongoing one. If there is a change in an employee's circumstances, an employer must reexamine the accommodation that has already been put in place for the employee or that has been proposed in order to determine whether it meets the revised needs of the employee. A failure to do this can lead to a finding that reasonable accommodation has not been provided.

Knee-jerk reactions to an employee's accommodation proposals should also be avoided. To be able to successfully assert undue hardship associated with an accommodation request, you must be able to show why that particular request cannot work. Here, the company appears to have either consciously or subconsciously avoided examining what the employee was actually seeking due to a desire to avoid any movement into that division whatsoever. (Have a look at my prior post on what undue hardship is for further information).

Additionally, at the risk of sounding like a broken record, I cannot stress enough how critical it is to have a written procedure in place in your workplace relating to the duty to accommodate. Properly written, it should spell out all of the steps that should be taken by an employer whenever a request for accommodation is made by an employee or a change in the employee's circumstances occurs. Such a procedure, properly followed in all circumstances, would help an employer avoid missteps the likes of which occurred here.

Lastly, note here that the company's President was found, in his personal capacity, to be liable for what happened here and jointly responsible with the company for paying damages to the employee. As the President was intimately involved with discussions with Mr. Tofflemire and his union relating to accommodation, and he was the operating mind of the company, it was well within Mr. Tofflemire's right to name the President as a personal respondent to his complaint and within the Tribunal's jurisdiction to make a finding specifically against him.

(Image by linder6580)

Conference reflects on Equity in the Workplace

2009-10-06T00:00:00-05:00

Those of you looking for an interesting conference to attend this month will want to check out the University of Western Law Lecture and Conference. The theme of this year's Conference is "Equity in the Workplace: Twenty- Five Years after the Abella Report."

Michael Lynk, Professor in the Faculty of Law at The University of Western and one of the conference organizers, provided me with a brief overview of the conference:

"Madam Justice Rosalie Abella of the Supreme Court of Canada, who authored the report of the Royal Commission on Equality in Employment in 1984, will be delivering the Koskie Minsky Lecture on Labour Law on Friday, 30 October, reflecting on employment equity and the impact of her report. A reception and dinner will follow.

The following day, Heenan Blaikie and Western Law are co-sponsoring the labour law conference, which will continue the assessment of how well employment equity has fared in Canada. The conference will host four panels of legal and industrial relations scholars, lawyers, and policy advisors who will critically examine the successes and shortcomings of employment equity, both here in Canada and abroad."

Have a look at the Conference brochure for further details and how to register.

The Conference will be of interest to academics, lawyers, union officials, industrial relations managers, policy advisors and consultants, human rights specialists, law students, industrial relations students and anyone with an interest in contemporary workplace issues.

Fact versus fear: how employers should respond to H1N1 in the workplace to avoid human rights violations

2009-09-16T12:33:08-05:00

Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu. The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service. The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission. Time will tell how this case ultimately resolves itself.

While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace. I thought it might be useful here to let you know what I said and expand upon my comments a bit further:

What is H1N1?

Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu"). This virus can, however, make people sick as well. It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.

How do I deal with H1N1?

1. Operate based on Fact versus Fear

When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear. This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical. The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law.

In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak. Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.

2. Assume that H1N1 constitutes a disability under human rights legislation

Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability. While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration. H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light. Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003.

It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability. A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness. Consider, for example, the man who was barred from the restaurant. He did not have H1N1, his wife did. Yet, the restaurant seems to have treated him as though he had the disease. The H1N1 label had an effect on him anyway. A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.

In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis.

3. Uphold your human rights-related responsibilities to all employees impacted by H1N1

The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.

Employers must ensure that their workplaces are free of discrimination and harassment. This means that they need to:

a. make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1. In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions. Here, you would want to follow the lead of public health officials and medical professionals;

b. make sure that you take appropriate steps to accommodate employees who are disabled by H1N1. What type of accommodation will be reasonable will depend on the circumstances. It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;

c. make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same. People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness. This can result in harsh treatment of their colleagues. Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior.

Conclusion

While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last. I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.

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2009-2010 Manitoba Human Rights Commission Course List

2009-09-03T11:32:45-05:00

The course list for the 2009-2010 'training season' at the Manitoba Human Rights Commission has just been finalized. As usual, there is a terrific line-up of courses that you can take taught by Commission staff, the Commission's legal counsel and, yours truly. On tap this year for me are my usual courses on "How to Investigate a Human Rights Complaint" and "Reasonable Accommodation in the Workplace." These courses fill up fast so if you haven't had a chance to attend yet, I'd encourage you to call the Commission as soon as you can to sign up. Download Education brochure 2009 2010.

For those of you who have been asking about other courses I might be teaching at the Commission I'm happy to announce that I've spent my summer putting together a brand new course that I think will be a great addition to the Commission's current line-up. Called "Workplace Human Rights Complaints: myths, fears & realities", I'm going to be covering a whole range of common topics that I come across in the work I do on a daily basis and which I find that human resource specialists, managers and employers struggle regularly with. My goal is to dispel the myths and fears associated with workplace human rights complaints, and let you in on the real truths. Here's what we'll be discussing:

legal liabilities of employers for human rights-related misconduct in the workplace
ways in which a human rights complaint can come to your attention in the workplace (some obvious, some not so!)
what to do if you become aware of what you think is a human rights complaint (learn what you need to do to help prevent legal liability)
how to decide whether a human rights complaint needs to be investigated (the questions you need to ask yourself before jumping head-first into or avoiding an investigation)
essential elements of a good investigation
liability issues relating to the poor handling of investigations
the top 8 fatal mistakes employers make when faced with a workplace human rights complaint
what to expect when the Human Rights Commission gets involved (what really happens)
my top 5 tips for dealing with the Commission.

The course has been structured to be an open dialogue with quick quizzes and test-your-knowledge scenarios to ensure you leave with a solid understanding of the material. I'll also save time for those "I've always wanted to ask this about the Commission but didn't know who to ask" questions that may have been plaguing you for years! I hope you join me as I embark on this new course. I'm only teaching it three times this session so if you're interested, please contact the Commission and sign up soon.

I know there are those of you who live outside of Manitoba or you otherwise can't make it to my courses but have been asking for access to my materials anyway. Please note that I am currently working at getting my content together to start making my courses available online. I'm still in the early stages of development but will keep you updated so you know when this becomes reality.