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Human Rights in the First Nation Workplace September 2016 Scott McCann Harris & Company LLP Agenda Prohibited grounds of discrimination Jurisdiction issues Introduction to the duty to accommodate Undue hardship

  1. Human Rights in the First Nation Workplace September 2016 Scott McCann Harris & Company LLP

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

  3. Prohibited Grounds of Discrimination

  4. 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

  5. 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

  6. BC Human Rights Code  Covers employment, accommodation, and services ordinarily 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).

  7. Ancestry Sex Religion Marital Place of Age status origin Criminal Sexual Prohibited conviction** orientation Grounds Political Family Physical or belief status mental disability Race Colour

  8. 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…

  9. Sex, Race including Religion pregnancy Family Marital status status CHRA Prohibited National/ Sexual Grounds ethnic origin orientation Pardoned Physical or Age mental criminal conviction disability Colour

  10. Jurisdictional issues Provincial legislation? Federal legislation?

  11. 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

  12. Introduction to the Duty to Accommodate

  13. 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

  14. 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.

  15. 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

  16. 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

  17. 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

  18. 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 origin 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

  19. 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!

  20. “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 of the processes involved in understanding or using symbols or language, (d) a mental disorder;

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

  22. 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?

  23. The Employer’s Role

  24. 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

  25. 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

  26. 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

  27. 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

  28. 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

  29. Employee’s Duty

  30. 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

  31. Employee’s duty to cooperate  Obligation to show fitness to return to work  No conflicting or equivocal evidence  Must have reasonable explanation for refusal

  32. Hutchinson v. Canada (FCA, 2003)  Employee suffered from environmental illness and burnout  She refused employer’s offers ( example: moving her office 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

  33. What Constitutes Undue Hardship?

  34. Renaud (SCC, 1992)  Some hardship is contemplated  Financial cost  Disruption of collective agreement  Employee morale

  35. The point of undue hardship Consider:  Financial cost  Size of the employer’s operations  Impact on other employees’ rights/morale  Disruption of collective agreement

  36. The point of undue hardship Consider:  Interchangeability of workforce  Bundling  Safety – magnitude of risk and identity of who must bear it  Other?

  37. 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

  38. 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

  39. 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 on employer.

  40. 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

  41. 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

  42. 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

  43. It’s Complicated… Addiction

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