Nation Workplace September 2016 Scott McCann Harris & Company - - PowerPoint PPT Presentation

Scott McCann Harris & Company LLP Human Rights in the First Nation Workplace

September 2016

Agenda

 Prohibited grounds of discrimination  Jurisdiction issues  Introduction to the duty to accommodate  Undue hardship  Employer’s duty to inquire  Dealing with addictions

Prohibited Grounds of Discrimination

Human Rights statutes

 In all Canadian jurisdictions – federal,

provincial and territorial

 Characterized as quasi-constitutional

 Takes precedence over other statutes  To be read and applied in a broad fashion

BC Human Rights Code

• S. 3 – Purposes

 To prevent discrimination prohibited by this Code  To identify and eliminate persistent patterns of

inequality associated with discrimination prohibited by this Code

 To provide a means of redress for those persons who

are discriminated against contrary to this Code

BC Human Rights Code

 Covers employment, accommodation, and services

• rdinarily available to the public (among other things)

13(1) A person must not

a) Refuse to employ or refuse to continue to

employ a person, or

b) Discriminate against a person regarding

employment or any term or condition of employment because of (a prohibited ground).

Race Ancestry Place of

• rigin

Age Criminal conviction** Sex Sexual

• rientation

Political belief Family status Colour Marital status Physical or mental disability Religion

Prohibited Grounds

Canadian Human Rights Act – Section 7

It is discriminatory to:

 Refuse to employ or refuse to continue to employ any

individual, or

 In the course of employment, to ‘differentiate

adversely’ in relation to an employee Because of…

Race National/ ethnic origin Age Pardoned criminal conviction Sex, including pregnancy Sexual

• rientation

Family status Colour Marital status Physical or mental disability Religion CHRA Prohibited Grounds

Jurisdictional issues

Provincial legislation? Federal legislation?

Recent awards

Azoadam v. Ahousaht Education Authority, [2016] C.L.A.D. No. 159

 First Nation Education Authority  Found to be provincially regulated

Cahoose v. Ulkatcho Indian Band, 2016 BCHRT 114

 First Nation Health Department  Found to be federally regulated

Introduction to the Duty to Accommodate

Anatomy of a discrimination claim

 Is there a prima facie case of discrimination?

 Must be a link between the disability and the

employer’s conduct

Meiorin

To establish a BFOR:

 Standard was adopted for purpose rationally

connected to job;

 Standard adopted in good faith; and  Standard is reasonably necessary, in that it is

impossible to accommodate individual without undue hardship.

Purpose of accommodation

 To ensure that those who are able to work can

work

 To ensure that individuals who are otherwise fit

to work are not excluded IF their working conditions can be adjusted so they can do so

The duty to accommodate: When does it arise?

 Once an employee has an identified condition

that requires accommodation

 Duty to inquire in certain circumstances  Duty can arise during pre-employment stage if

disability or other condition is identified

Preferential hiring of aboriginal persons

 Prima facie discriminatory  Exceptions under human rights legislation and

CHRC Aboriginal Employment Preference Policy

 Strong argument that preferential hiring of

aboriginal persons is part of effort to alleviate past disadvantages

Bignell- Malcolm v. Ebb and Flow Indian Band (2008, CHRT)

 Employee of Cree descent offered and accepted job

as Band’s director of education

 Employer rescinded the offer  Discrimination based on race and ethnic or national

• rigin found

 Band found to have rescinded the offer because the

applicant was not Ojibway

 The Commission’s preferential hiring program does not

allow for preference to be given to members of a particular First Nation, band or tribe

What must be accommodated?

 Accommodation is only required where one or

more of the prohibited grounds is involved

 No requirement to accommodate a lack of

skills, experience, education, intelligence, personal preference, clothing, jewelry, etc. . . unless . . .any of those things can be related to a prohibited ground!

“Disability” - Broad approach to definition of “disability”

“Disability” means any of the following conditions: (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness, (b) a condition of mental impairment or a developmental disability, (c) a learning disability, or a dysfunction in one or more

• f the processes involved in understanding or using

symbols or language, (d) a mental disorder;

Chronic Fatigue Syndrome Physical symptoms of “stress” HIV positive / AIDS Diabetes Drug or alcohol dependency Excess weight Depression

Disabilities

What need not be accommodated?

 Excessive absenteeism  Not required to forfeit productivity to

accommodate by:

 Creating unneeded positions  Assigning “make work”  Bundling duties of no economic value

 Creating a new job?

The Employer’s Role

Employer’s role

 Employer has primary burden to initiate -

usually begins with inquiry

 Meiorin: employers should be innovative yet

practical

 Adjudicators look at process and substantive

content of accommodation

Employer’s duty to inquire

 Duty to inquire triggered where employer

knows, or ought to know, employee needs accommodation

 Express request not required  Employer must be alive to signals

Employer’s duty to inquire

Datt v. McDonald’s Restaurants (BCHRT, 2007)

 23+ years of employment  Skin condition exacerbated by water, soap,

and gloves

 Could not engage in frequent hand washing  Terminated

Employer’s duty to inquire

Datt v. McDonald’s Restaurants

 Failure to sufficiently explore with doctor –

“frequent hand washing”

 Food handling regulations not a defence  No serious consideration to alternative duties

Employer’s duty to inquire

Datt v. McDonald’s Restaurants

 Failure to contact an expert  Meet regularly with employee  Consult with professionals if health or other

regulations

 Give employee opportunity to rebut your

information

Employee’s Duty

Employee’s duty to cooperate

 Renaud – employee must facilitate the search,

i.e. disclose disability

 Failure to participate (e.g. failure to provide

medical information)

 Refusal to accept reasonable accommodation

Employee’s duty to cooperate

 Obligation to show fitness to return to work  No conflicting or equivocal evidence  Must have reasonable explanation for refusal

Hutchinson v. Canada (FCA, 2003)

 Employee suffered from environmental illness and

burnout

 She refused employer’s offers (example: moving her

• ffice or telecommuting)

 She wanted to telecommute from office she had found

but employer rejected proposal because office was not in government controlled building

 Employees can’t refuse reasonable solution because

alternative favoured would not cause undue hardship

What Constitutes Undue Hardship?

Renaud (SCC, 1992)

 Some hardship is contemplated  Financial cost  Disruption of collective agreement  Employee morale

The point of undue hardship

Consider:

 Financial cost  Size of the employer’s operations  Impact on other employees’ rights/morale  Disruption of collective agreement

The point of undue hardship

Consider:

 Interchangeability of workforce  Bundling  Safety – magnitude of risk and identity of who

must bear it

 Other?

Duty is not limitless

 Question of what is undue hardship is always

difficult

 Short of undue hardship  NOT: accommodate unless impossible to do so  Accommodate unless impossible to do so

without undue hardship

Hydro-Québec (SCC, 2008)

 Employee with excessive absenteeism (960

days in 7 yrs), due to physical & mental issues

 Immediately prior to termination had been

continuously absent for 5 months

 No prognosis for ability to return to work in

foreseeable future, nor expectation of regular attendance

Hydro-Québec

SCC: Purpose of human rights legislation

 To eliminate discrimination which is “arbitrary and

based on pre-conceived ideas concerning personal characteristic which”, when accommodation occurs, do not affect a person’s ability to do a job.

 Employer must accommodate in a way that ensures

employee can work, without causing undue hardship

• n employer.

No fundamental change required

 Duty is to arrange the employee’s workplace or

duties to enable them to do their work – IF it can be done without undue hardship

 Employer does not have to change working

conditions in fundamental way

Accommodation must be reasonable, not perfect

 Employer must consider request for

accommodation on individual basis

 Employee has duty to assist in inquiry and

accept reasonable accommodation

Summary: Duty to accommodate evolving

 Law is continually evolving  Important to have thorough knowledge of basic

principles

 Must conduct individualized assessment  Avoid acting on pre-determined assumptions

It’s Complicated… Addiction

Addiction – Issues

 Impairment at work  Attendance problems  Misconduct  Addiction raised as defence

Addiction = disability

 Addiction constitutes a physical disability under

the human rights legislation

 There may be discrimination if there is a link

between the disability/addiction and failure to meet a workplace standard

Responding to addiction

 Is there medical evidence to support

employee’s addiction?

 To what extent did addiction influence

employee’s misconduct?

 Can the employment relationship be salvaged

if employee seeks treatment?

Questions about addiction

 How long has employee been drinking/using

drugs?

 Under what circumstances does employee

drink/do drugs? How often? Quantity?

 Where/when does the employee drink/do

drugs?

Questions about addiction

 Has employee sought medical help? If not,

why?

 What attempts at rehabilitation? Details? Ask

for confirmation

Medical information

 What is the addiction?  How does it affect the employee?  What is the treatment?  Has employee been compliant?  Prognosis?

Conclusion

 Obtain as much info as possible  Make individualized assessment  Consider alternatives before claiming undue

hardship

Questions?

Scott McCann Harris & Company LLP

smccann@harrisco.com 1(604) 891-2233

Human Rights in the First Nation Workplace

September 2016