duty to accommodate
Good Friday, observed on April 14 this year, is a statutory holiday recognized across Canada. Also, Easter Sunday, observed on April 16 this year, is a retail holiday in some provinces and territories. Regarding Easter Monday, the Federal Government, as well as certain federally regulated workplaces, recognize the day as a statutory holiday. Although, this may not necessarily be the circumstance for the provinces and territories.
The recent decision of Misetich v. Value Village Stores Inc. reaffirms that family status accommodation under the Human Rights Code is a joint obligation, involving both the employee and employer.
The U.S. 2016 presidential election and post-election are causing much debate, criticism and protest outside of America. Canadians have actively participated in public marches and protests in response to Trump’s comments and proposed policies, as well as the recent proposedU.S. ban on entry to that country from certain Muslim nations. In this context, employers are right to ask whether workplace partisan political arguments fit in the workplace.
Looking at an Ontario Human Rights Commission discussion paper released in 2001, the aspects that make what is called intersectionality so appealing to a modern view of identity is that it does not pigeon hole a person as being represented by a sole code ground, or identity that is legally protected against discrimination.
Discriminatory grounds such as family status, age, marital status, etc. that deal with the duty to accommodate
The Ontario Human Rights Code lists a number of personal characteristics protected from discrimination: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. These personal characteristics are often referred to as “protected grounds”. An employer is prohibited from discriminating against an employee on the basis of any protected ground.
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.
In Pourasadi v Bentley Leathers Inc., the Human Rights Tribunal found that accommodating a store manager by permitting the employee not to assist customers was not required, since assisting customers was an essential duty of her position.
At the June 2, 2016, Ontario Employment Law Conference, during the Q&A session, we received numerous questions on topics covered at the conference but could not address them all. From time to time, till the next conference, we will be posting and answering some of these questions on the blog.
Mastering the ins and outs of the duty to accommodate under human rights legislation is hard. In fact, some would go so far as to say impossible. It’s no wonder this topic has floated to the top of the list of challenges faced by HR practitioners. I’ve given this some thought and come up with a number of rules that I feel should be followed in all cases.
Employers who fail to incorporate a binding termination clause into their written employment agreements may face significant, and unexpected, liability for severance. This lesson was learned the hard way by Qualified Metal Fabricators (“QML”) in a recent case out of Toronto.
With the Ontario Human Rights Commission’s recent position on gender-specific dress codes, and with the increase of attention in the news regarding bars and restaurants requiring women to wear high heels, low-cut tops and short skirts, I thought it would be beneficial for our readers to get Chief Commissioner Renu Mandhane’s take on the issue of gender specific and sexualized dress codes in the workplace, and what employers should be doing to ensure that their dress codes are in compliance with Ontario’s Human Rights Code.
Ontario Court of Appeal upholds decision to reinstate disabled employee with 10 years back pay: Will human rights litigation ever be the same again?
I predict a recent Ontario Court of Appeal decision will have a significant impact on human rights litigation. In particular, I suspect disabled employees will start asking employers to find or create alternative positions for them if they cannot perform their job duties because of a disability, and terminated employees will start asking adjudicators to reinstate them with full back pay.
Dispensaries are currently undergoing a series of raids as TPF personnel are cracking down on store fronts and businesses that are working outside the law. The surge in organizations selling cannabis and cannabis products might well be egged on by the looming eventuality that cannabis will either become decriminalized or legalized in the near future.
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.