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BFOR

Employee unable to show dismissal was discriminatory

The British Columbia Human Rights Tribunal recently denied an employee’s complaint alleging that his employer discriminated against him on the basis of a physical disability. The Tribunal denied the employee’s complaint because there was no link between the employee’s alleged chronic pain and his use of marijuana.

 

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The duty to accommodate revisited: H.T. v. ES Holdings Inc. o/a Country Herbs

The duty to accommodate presents itself to employers in many forms. While the most common accommodation involves a disability, often there are other grounds for accommodation that an employer must address as illustrated in H.T. v. ES Holdings Inc. o/a Country Herbs.

 

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No obligation to let employee smoke marijuana at work as a form of accommodation

The British Columbia Human Rights Tribunal, in French v Selkin Logging, found that an employer did not discriminate based on the ground of physical disability by refusing to allow the employee from smoking marijuana at work. The company’s zero-tolerance policy for drugs constituted a bona fide occupational requirement (BFOR).

 

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Constructive discrimination: The case of Tawney Meiorin

Constructive or adverse discrimination in employment occurs when rules or standards are established that do not discriminate at first glance, but have an adverse effect on persons whose rights are protected under human rights legislation. In such a case, the burden shifts to the employer to establish that such rules or standards are essential to the job, also known as bona fide occupational requirements (BFOR’s. British Columbia (Public Service Employee Relations Commission) v. BCGSEU is the leading case which addresses this issue. This seminal human rights case from the Supreme Court of Canada established a three-part test which has become the standard to evaluate constructive discrimination.

 

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Is the appearance of “youth” a bona fide occupational qualification?

Kimberly Ouwroulis filed a Human Rights complaint alleging discrimination based on her age. The complaint was filed after she was terminated from her job as an exotic dancer at a strip club, allegedly, for being too old. As a highly publicized case, experts quickly asked the question whether or not age, for an exotic dancer, is a BFOQ?

 

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How far can an employer go in imposing appearance-based requirements?

In the employment setting, there is a constant tension between an employer’s desire to control its image and employees’ rights to be free from discrimination and to freely express themselves. While it is generally accepted that an employer may impose appearance-based requirements if it establishes a legitimate business reason for the rule, it seems hard to believe that an employer could justify refusing to hire a person based on their physical appearance. However,…

 

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Variables affecting length of notice: age

We know that there is no precise method to determine the common-law period of reasonable notice when terminating employees. What has evolved and has been the most quoted case to help with this is the infamous Bardal vs. Globe and Mail. This case tells us that reasonable notice must be decided with reference to each specific case, considering the character of employment, length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

 

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Weight a factor in employment decisions

In a recent HRinfodesk poll, we asked our readers if a person’s weight had ever influenced their decision on whether to hire, promote or reward the person. The reason I was so interested in the topic is that a Quebec lawyer recently sued her former law firm because she believes the firm discriminated against her in employment because she was overweight.

 

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Mandatory retirement ends for federally regulated employers

The federal government gave royal assent to Bill C-13, Keeping Canada’s Economy and Jobs Growing Act on December 15, 2011. Several of the measures enacted have an impact on employment law for federally regulated workplaces. One of the measures amends the Canadian Human Rights Act to eliminate the mandatory retirement age for federally regulated employees.

 

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Duty to accommodate disability case sent back to Human Rights Tribunal

The tribunal that decided the case of alleged discrimination against a part-time paramedic with multiple sclerosis who was shifted to a part-time ambulance driver position (at the paramedic’s pay rate) left some loose ends, according to the Supreme Court of British Columbia. The Court sent the case back to the tribunal to decide if the employer reasonably accommodated the employee, even though he was not able to perform important paramedic duties.

 

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Free speech v. discrimination: When workplace rules cross the line

The recent case of Friesen v. Fisher Bay Seafood and others is a great example of free speech v. discrimination, on how and when workplace rules cross the line…

 

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