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I have been reading some interesting articles recently regarding women in the workplace. A recent report put Canada at number 20 in a global measure of equality between men and women. Canada was actually rated number 33 in the world on earned income gaps. Why is this still happening?

A Canadian study attributes the earned income gap to motherhood and workforce attitudes about motherhood. Women appear to face larger wage penalties that have nothing to do with their skills, education and experience. The report concluded, “Evidence strongly suggests that labour force intermittency is the main, yet multidimensional, culprit”.

Further, women with children face steep monetary penalties on the job. Women who left the workforce to have children apparently experienced “an unexplained, but persistent” three percent wage penalty per year of absence.

Though there were no significant differences in salaries for women without children, I’d argue from experience that this may not be the case. I have seen plenty of women face workplace discrimination just because there was a possibility that they might become mothers who would have to take a brief maternity leave; it was simply easier to avoid hiring, promoting, giving raises, keeping or mentoring them just in case they were planning on leaving soon to have children.

So it appears that this problem has to do with stereotypical attitudes of women in the workplace. These attitudes may be present across numerous industries and occupations. For instance, in politics, we see that Canada also lags with regard to the representation of women in its parliament. Only 22 percent of Canada’s members of Parliament are women. This number is similar for provincial and municipal politics as well.

It is quite bizarre that Canada’s representatives do not mirror the representation of the country as a whole, especially since it has been found that an increase in the number of women in Parliament would lead to different policy decisions, affecting issues that involve them such as childcare, violence against women, equal pay and government funding on research against breast cancer.

However, some women get turned off entering politics due to the lack of women present in politics, the media’s depiction of women in politics, concerns about finding a balance between work and family life, and the political atmosphere where some believe that “men play silly games”.

This is too bad, as it has been found that group problem-solving and creativity actually improve when there are women on the team. In fact, it has been found that mental diversity in a team or group can provide up to 66 percent more effectiveness compared to random groups. What’s more, social sensitivity increases in diverse teams. Why then should women be excluded or shut out of important teams that resolve political issues?

This dilemma is also occurring in the financial world. The news headline, “Endless opportunities for women in financial markets, but few takers” sums up the issue very nicely in my opinion. Obviously, there are reasons that women are dissuaded from entering certain fields, and it seems the reasons have little to do with ability or education.

In the past 10 years, 141,000 women, or 2.6 percent of female workers in finance, left the industry in the United States, and the numbers of men grew by 389,000, or 9.6 percent. This happened even though more women than men entered the workforce. These trends also appear to be happening in Canada.

Those numbers in the United States were compiled when times were good; however, women in senior executive roles in all industries were three times more likely than men to lose their jobs in the recession.

In fact, although Canada’s banks consistently increased the proportion of women being hired in other roles, this was not the case in terms of capital markets (investment trading and advising). There were just too many barriers for women seeking out opportunities and advancing, including:

• Gender stereotyping — women are still excluded from informal networks where relationships are built
• Initial discouragement — women are not encouraged to get into financial market roles in the first place
• Lack of career education for women in finance — there are not many classes in universities that give overviews of the spectrum of capital market functions and what careers might be available
• There is a lack of recognition and mentorship — there are few women who have reached senior positions who can act (or who want to act) as role models, supporters and mentors
• Workplace attitudes regarding the inappropriateness of women in finance — investment work is believed to be exhausting with long hours, and this would interfere with the creation of a normal home life

So what is the response by women? They enter into more traditional roles or work in more supportive work settings. Many women enter the public sector in order to find supportive work environments and attitudes. Why do most women prefer this work environment? Some reasons include:

• Positions in the public sector can offer more flexibility to take work home at night or leave the office to care for an ill child
• Many executive positions can require less long-distance travel than at a large private-sector company
• There are more women in management in government, making the workplace more welcoming
• Supportive workplace attitudes are the norm
• Work-life balance is valued

As one lawyer working in government put it, “I think we are fortunate in the attitudes that are in our workplace. … So if you do take a full maternity leave, people aren’t dumping on you or stealing your clients, and you come back and you’ve got your job and the opportunities are still there”.

I have seen a few female lawyers lose their position, seniority and their clients after returning from a maternity leave, I concur: it is much more preferable to, pursuant to employment standards and human rights legislation, have a supportive environment where you can trust that you will keep your job after a maternity leave.

Though the amount of work is similar to reach career goals in both environments, the quality of the work environment seems to be an important factor in this analysis.

In my experience, this has been the most important factor for me and it is the reason I work at a progressive publishing company that values flexibility; a decent and respectful work environment; a supportive workplace with more females than just one; a workplace free of discrimination and harassment; good quality work; the necessary resources and mentoring to succeed; opportunities such as telecommuting and flextime; challenging work that has meaning; and opportunity to develop a substantive specialty given the superior quality of work.

This is interesting. The success rate for women in leadership in government is now outstripping that of publicly traded corporations. Moreover, female CEOs are doing very well in government.

Apparently, women are attracted to positions in government because they like the idea of working in a job that has a broad impact on society and meaning beyond profits.

However, the drawback is public sector pay. Pay is clearly lower for executives in government compared to similar executives in private-sector companies. Many private-sector companies supplement executive salaries and bonuses with shares and stock options, which do not exist in the public sector.

Yet there are other benefits that are just as important as pay—a sense of purpose while performing a job that has meaning appears to be just as important.

Not surprisingly, many women have risen to the top jobs in government possibly because they are simply more willing to work more for less money.

This could be an issue: are women devaluing themselves when negotiating for a job or annual raises?

As I mentioned in my first post in this series, some suggest that women hinder themselves by not negotiating properly for their first salary and not asking for earned pay raises. This is because women have socially learned to conform to cultural standards to the point where they do not ask for what they deserve in the workplace.

This may be “Why the executive suite is the final frontier for women“.

Women are struggling to succeed as executives in the private sector, and the workplace culture seems to be a significant factor. Many women interviewed in the article felt as though they were being patronized when spoken to. This is hard to deal with on a regular basis.

The number of women occupying senior management positions in Canada’s biggest companies has remained the same in the past decade. Only 17 percent of corporate officers and 13 percent of directors at Canada’s top 500 private and public sector companies are female. The 2.8 percent gain since 2002 is not very impressive.

Women make up about 47 percent of Canada’s workforce. Why are there so few top or even middle managers in these companies?

It looks as though the majority of successful female professionals are stuck in middle-management.

Some suggest that Canada hesitates to promote female executives all the way to the top.

Compared to 32 in the US, only 21 of the top 1,000 Canadian public companies have female CEOs, but this needs qualification; many of these women are related to founders and nearly half preside over small businesses with annual revenues of less than 25 million dollars.

The cautious hesitation can be attributed to women’s:

• Perceived lack of ambition by women to fight their way to the top rungs
• Ineffectual mentoring
• Inflexible work hours at the workplace
• Rigid career hierarchies

Again, this is too bad. But increasingly, progressive companies aim to hire more women into top positions in order to affect change and spark creativity. Some of Canada’s more globally minded companies have been pushing the advancement of women for years, but progress is slow.

In light of the numerous barriers noted above, how does a female executive “make it” in these businesses?

Some who have made it to the top point to programs that specifically aim to support and encourage women in business, and progressive employers at Crown or foreign companies that are either more proactive about promoting women or view female leaders as promising catalysts for change.

What do you think? What can be done to encourage, promote and support women who aim to become top executives of companies?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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In Canada, the celebration of Victoria Day occurs every year on the Monday prior to May 25. It is the official celebration in Canada of the birthdays of Queen Victoria and Queen Elizabeth II. Victoria Day was established as a holiday in Canada West in 1845, and became a national holiday in 1901. Before Victoria Day became a national holiday, people had celebrated Empire Day, beginning in the 1890s as Victoria approached her Diamond Jubilee in 1897.

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That said, it is important to know that recent case law has made it clear that employers are entitled to manage absenteeism in the workplace and monitor employees who are chronically absent from work due to disability. Moreover, employers can create a disability program involving regular contact with an employee’s physician in order to support treatment as a legitimate form of accommodation.

Furthermore, an employer has the right to terminate a disabled employee when, despite accommodation measures, that employee remains unable to resume work for the foreseeable future. That is, an employer is not obliged to indefinitely employ someone who is not capable of regular job performance. If the characteristics of an illness are such that it will excessively hamper the proper operation of the business, or if an employee with such an illness remains unable to work for the reasonably foreseeable future, even though the employer has tried to accommodate the employee, the employer will have satisfied the test of accommodation to the point of undue hardship.

At the conference, you will learn the above principles and how to apply them to your leaves and accommodation policies, including your disability management program, by reviewing:

• What courts, tribunals and arbitrators are saying about Attendance Management Programs
• How to effectively and lawfully manage disability and non-disability related absenteeism
• What to do with insufficient medical documentation
• When and how to terminate for excessive absenteeism

There is much more—come and learn how to manage absenteeism. Register for the 2010 Employment Law Conference co-sponsored by Stringer Brisbin Humphrey, and Learn the latest!

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As stated on the “International Day Against Homophobia” website,

“the right to fight homophobia, and all different kinds of discrimination for that matter, is in itself a human right. In other words, everybody has the right to make sure that their and other people’s rights, including those of gays and lesbians, are respected.”

The information on the website speaks for itself. The site provides information on the scope of the human rights protection offered in Canada and in Québec in general, and as it pertains to sexual orientation, homophobia and discrimination in particular. Enough said.

Happy Anti-Homophobia Day!

Andrew Lawson
Human Rights Advisor, Learn Don’t Litigate

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• How the tribunal has handled applications under the new and transitional rules
• How best to prepare for success at the tribunal
• Damage awards after the cap: are awards really getting bigger?
• How the courts are handling their new powers to award damages for breaches of the Human Rights Code

The key premises of the new rules are:

• Immediate access to the tribunal
• Strict time frames for applicants and respondents
• Expanded disclosure obligations
• Rule-making and scheduling powers
• Mediation
• Transparency
• The creation of an independent human rights legal support centre
• The removal of caps on monetary awards
• New limitation periods

Under the new rules, individuals file human rights complaints directly with the Human Rights Tribunal of Ontario. The Ontario Human Rights Commission no longer has the legal authority to handle or refer complaints to the tribunal.

The purpose of the amended rules is that it makes it easier for individuals to access the human rights system, and to make the system more fair, efficient and effective. The tribunal also use the new rules to make sure employers are serious about their duty to accommodate. Not surprisingly, these changes are having significant effects on the way the tribunal interprets its cases, which in turn, is causing important direct and indirect effects on employers.

Stringer Brisbin Humphrey (co-sponsor of the Employment Law Conference) predicts that the changes will continue a trend in Ontario toward higher general damages, increasing restitution awards, and broader public interest remediation demands:

The tribunal is “increasingly utilizing more costly monetary remedies and more onerous and comprehensive public policy remediation elements to encourage employers to ensure compliance with equality rights guarantees. … Employers can anticipate the prospect of increasingly aggressive financial remediation (given the removal of limits on general damages) and more expansive and intrusive approaches to public policy interest remediation.

So, don’t get in trouble with employees who require accommodation! Well, it’s not as simple as that, is it? But you can learn what the new human rights system rules mean for you when you register for the 2010 Employment Law Conference—and Learn the latest!

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The first topic on the Agenda will provide employers with guidance on a significant court decision and changes in court procedures affecting the termination process. Specifically it should help employers minimize claims arising from the termination process.

How you go about deciding whether to terminate an employee, and the termination process itself, can have a great impact on whether that employee will pursue a lawsuit. Employees who feel they have been treated fairly in their termination are much less likely to pursue wrongful dismissal claims. If employers fail to act in good faith when terminating, they run the risk of being liable for significant damages.

You should evaluate your termination process in relation to the principles applied in the key Supreme Court decision, Honda v. Keays—one of the most important employment law case in Canada in years—and the new Ontario Rules of Civil Procedure that took effect on January 1, 2010.

Moreover, the Court has affirmed its decision in Wallace that an employer is entitled to terminate an employee for any reason provided it makes payment in lieu of notice, while still imposing an obligation on employers to terminate employees in a “candid, reasonable, honest and forthright” manner, and to pay damages for any wrongful termination. The Keays decision further explains the rationale behind compensating bad faith in the manner of dismissal. Meaning, the decision makes it clear that Wallace (punitive) damages are awarded for reasonably foreseeable mental distress caused by the manner of dismissal, requiring employees to prove their actual losses, rather than adding an extension to the notice period.

In regard to the new Ontario Rules of Civil Procedure, actions brought in Small Claims Court proceed more quickly and are disposed of with fewer procedural steps compared to cases in the Superior Court of Justice. And now, monetary limits in Small Claims Court have been increased from $10,000 to $25,000, and under the Simplified Procedures from $50,000 to $100,000. These changes make it easier and less expensive for employees to sue their employers, providing employees with a more attractive, quick and less involved resolution of wrongful dismissal actions.

There is much more; come and learn how to manage terminations and litigation in light of these developments. Register for the 2010 Employment Law Conference — and Learn the latest!

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I recently read an interesting case about sick pay fraud and bad-faith termination. After reading the employer’s version of what happened, I was pretty convinced that the employer was justified in terminating the accused employee, and would be successful at arbitration. But when I read all the facts of the case, it became clear why the labour arbitrator decided that the termination was unjustified: the employer acted in a completely inappropriate fashion.

The employee was a 47-year-old fleet coordinator who had worked for the employer for about 23 years with no disciplinary record. She hurt herself at work, while exiting a sub-utility vehicle, and eventually required knee surgery for a torn meniscus. After trying to return to work sooner than she could handle, she ultimately obtained a doctor’s note to take sick leave for four weeks. She had to undergo physiotherapy for six months.

Due to a problem with sick pay fraud at the company, the employer decided to use surveillance on the employee while she was on leave. The employer noticed that on a couple of occasions, the employee visited several stores on foot in a brief time span, demonstrating “no discomfort with either leg”.

As a result of the surveillance, the employer requested information from the employee’s physician as to why she required four weeks of recuperation and whether she could return earlier with or without restrictions. The employee got a note from her physiotherapist that stated she was progressing, but “would significantly benefit from one more week off from work”. The employer received the note, but did not take it seriously.

The employee responded by obtaining a note from her surgeon permitting her to return to work with restrictions. The employer kept an eye on her when she returned to work. She was observed leaving the workplace and limping slightly on her right leg and then continuing to walk with “quite a severe limp on her right leg”. She drove to a community mailbox where she was again observed to “limp quite heavily”.

Two days later, the employer called the employee into a meeting and gave her the opportunity to “come clean”. She did not know what to say. The employer felt that if the employee had told the truth or shown some remorse she would have been given another chance; however, she said nothing, and as a result, the employer suspended her for sick leave fraud and continued dishonesty during the investigation.

A few days later, the employer terminated the employee for defrauding the sick leave plan and for her continued dishonesty.

According to the employee, she had a meniscus tear that caused pain, swelling, difficulty with weight-bearing, an altered gait and weakness. There were reasons why she was able to go to the stores the few times she was seen on the surveillance: she was being diligent with her physiotherapy exercises and felt well enough to run some errands. Her balance was improving, but the healing process was not complete. On the other hand, the reason she was having trouble walking on her first day back to work was that she stopped taking painkillers once she started working, and she had not been given modified—sedentary—duties.

The arbitrator found that the employer had to establish that the employee was dishonest in reporting her absences and under questioning, and that her dishonesty resulted in a loss of trust, which made it impossible to continue the employment relationship.

Simply put, the employer failed to do this.

The employer:

• Did not rely on any medical evidence, but simply on its own observations from video surveillance and a meeting with the employee
• Assumed that the employee was faking a limp on her return to work
• Did not consider that the employee remained at home for lengthy periods and engaged in few outside activities while under surveillance; the fact that she was at home most of the time could have prompted further medical inquiries
• Refused to inquire into the employee’s condition on her first day back when she was apparently limping and displaying an abnormal gait
• Failed to understand that gait disturbance is outside the expertise of an ordinary person; subtle shifts in posture and gait to accommodate an injury may not be readily apparent, and are not apparent to the untrained eye
• Did not provide the employee with modified work duties on her return
• Rejected a valid physiotherapist’s note for reasons that were not credible
• Came to the meeting with a preconception that the employee was dishonest
• Failed to consider the employee’s seniority and good work record when disciplining her
• Ignored a collective agreement clause that allowed sick leave pay upon the mere signing of a statement that an employee was unable to perform duties
• Did not follow the procedure permitting the employer where it had “reasonable cause to suspect an abuse of sick leave” to challenge the employee’s claimed entitlement by obtaining an opinion or statement from a qualified medical practitioner verifying the employee’s absence
• Acted unreasonably and in bad faith toward the employee

Thus, the employee did not lie or defraud the sick plan system, and was entitled to significant damage awards.

The arbitrator stated, “Employees are not like tissues to be used up and then thrown out at a whim into the bin of low level employment or unemployment”.

I’m wondering: has your company ever had an employee who committed sick pay fraud? How did the company gather evidence and come to the conclusion that the employee committed the offence?

Christina Catenacci
First Reference Human Resources and Compliance Assistant Editor

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Employers should know that the term is broad, and the Supreme Court of Canada has favoured a wide and liberal interpretation.

Some jurisdictions provide a list of ailments (stating that the list is not comprehensive) in their definition. For instance, in Ontario, disability is defined as:

• Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device
• A condition of mental impairment or a developmental disability
• A learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language
• A mental disorder
• An injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act

On the other hand, some jurisdictions have brief yet broad definitions, such as the federally regulated jurisdiction, which defines disability as any previous or existing mental or physical disability, and includes disfigurement and previous or existing dependence on alcohol or a drug.

Some jurisdictions define “physical disability” and “mental disability” separately. For example, in Alberta, “mental disability” means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder. A “physical disability” means any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes epilepsy, paralysis, amputation, lack of physical co‑ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, and physical reliance on a guide dog, service dog, wheelchair or other remedial appliance or device.

Moreover, some jurisdictions do not specifically define the term “disability” in their human rights legislation. For instance, British Columbia does not define disability, but the term has evolved to include protection for people who have, or are perceived to have, mental or physical disabilities whether visible or non-visible, permanent or temporary.

Finally, some jurisdictions define the term, “physical disability or mental disability”. Nova Scotia defines it as an actual or perceived:

• Loss or abnormality of psychological, physiological or anatomical structure or function
• Restriction or lack of ability to perform an activity
• Physical disability, infirmity, malformation or disfigurement, including, but not limited to, epilepsy and any degree of paralysis, amputation, lack of physical co-ordination, deafness, hardness of hearing or hearing impediment, blindness or visual impediment, speech impairment or impediment or reliance on a hearing-ear dog, a guide dog, a wheelchair or a remedial appliance or device
• Learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language
• Condition of being mentally impaired
• Mental disorder
• Dependency on drugs or alcohol

Although the definitions might not have exactly the same wording, they make the same point: the definition of disability is very broad, and human rights tribunals along with the courts will interpret it as such. In fact, discrimination based on disability may be based as much on perceptions, myths and stereotypes as on the existence of actual functional limitations.

When considering whether a person has been discriminated against because of disability, it’s more important to consider how the person was treated than to prove that the person has physical limitations or an ailment. It’s not necessary for individuals alleging discrimination to prove the existence of a disability with extensive scientific evidence. A disability may be the result of a physical limitation, an ailment, a perceived limitation or a combination of all of these factors.

Some ailments may strike employers as impairments that obviously constitute a disability. For instance, most employers would be aware of the fact that an employee with a hearing impediment suffers from a disability that must be accommodated to the point of undue hardship.

But what about an employee who has an asthma attack when in the presence of perfume, cologne or strongly scented products? Awareness is increasing regarding this impairment, but it might not be obvious, and it may be more complicated to deal with. Although asthma is considered a physical disability, some employers may not realize the extent of the impairment and that impact that asthma triggers have in the workplace.

Discrimination typically arises because of a lack of understanding about the particular disability. Employers’ beliefs influence their actions and decision-making abilities with regard to employment. One example of this is an employer deciding not to hire a person who needs to use a wheelchair because the employer does not want to deal with the inconvenience of ensuring the work environment is wheelchair accessible. Another example is an employer refusing to promote an employee because the employee has a learning disability.

I’m wondering: has your company been faced with a situation where the employer was not sure if an employee’s ailment constituted a disability? If so, how did the employer handle the situation?

Christina Catenacci
First Reference Human Resources and Compliance Assistant Editor

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What’s the significance of this announcement? The review will result in a staff notice by the end of this year providing guidance on compliance with existing environmental disclosure requirements under National Instrument 51-102 Continuous Disclosure Obligations. But many observers also feel that this initiative is designed to bring Canadian practice in line with developments in the United States, where the Securities and Exchange Commission has voted to provide public companies with interpretive guidance on existing SEC disclosure requirements as they apply to business or legal developments relating to the issue of climate change. Although in its press release, the SEC was careful to sidestep any official position on the climate change debate, it’s clear that it is becoming part of the US corporate reporting framework. And there’s every reason to believe that it will do the same on this side of the border.

Finance & Accounting PolicyPro now includes a chapter covering many aspects of environmental management, including environmental protection, hazardous material management, recycling, energy conservation, sustainability, and emissions trading.

Colin Braithwaite
First Reference Internal Controls Managing Editor

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The PBO projects that EI premium rates for employees will increase by the maximum allowable amount of $0.15 per year to $2.33 (per $100 of insurable earnings) by 2014 from $1.73 in 2010. This $0.60 increase in the premium rate is projected to raise the annual contribution per worker by $535, on average ($223 borne by the employee and $312 borne by the employer).

The combination of the increased premiums, more workers and higher wages means that Ottawa’s EI revenues would grow from $16.2 billion last year to $27.1 billion by 2014. Despite this increase, the budget officer estimates that even then the fund would still carry a $700-million deficit by 2014 after hitting a peak shortfall of $10.7 billion in 2011.

Currently, the government has frozen contribution premiums until 2011 as part of the two-year stimulus package dealing with the recession.

The report is quite informative and should be consulted.

Note: The Parliament of Canada Act mandates the Parliamentary Budget Officer to provide independent analysis to the Senate and House of Commons on the state of the nation’s finances, government estimates and trends in the national economy.

Yosie Saint-Cyr
Human Resources and Compliance Managing Editor

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