human rights legislation
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.
A recent Globe and Mail article highlights the fears that new parents face as they contemplate returning to work after a parental leave. It also highlights the issues employers must address when those employees return to work. Since our employer clients often raise questions about post–leave matters, we would like to offer some helpful tips on this issue.
July 3, 2016 marked the first time a Canadian Prime Minister marched in Toronto’s Pride parade. But some may be wondering, ‘Do Canadian laws currently protect LGBT rights in the workplace, and have they kept up with the evolving climate of increased inclusion?’ The answer depends on the particular jurisdiction involved because the issue is addressed in human rights legislation across Canada.
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.
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.
In the following case, a breach of human rights legislation was found where the employer refused to allow the employee to have the summer off in order to look after her autistic child.
A recent interim decision of the Ontario Human Rights Tribunal addressed whether a miscarriage could constitute a disability for the purposes of human rights legislation.
Under human rights legislation, employers have a duty to accommodate an employee’s needs related to a prohibited ground of discrimination to the point of undue hardship. It can often be difficult for employers and their legal counsel to assess when the point of undue hardship is reached.
On December 18, 2014, the European Court of Justice decided that while obesity, in itself, is not necessarily a disability, where obesity hinders a person’s ability to engage in “full and effective participation” in the workplace, it could warrant the protection of disability legislation. So what is the status of obesity as a disability in Canada?
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.
In most jurisdictions in Canada, human rights legislation prohibits discrimination on the basis of “family status.” Until recently, few cases were brought alleging discrimination under this branch. However, recent decisions across several jurisdictions have made it clear that employers must be attentive to this ground of discrimination or risk exposing themselves to significant liability.
Two recent cases dealing with requests for accommodation have put the challenge of balancing competing interests in the forefront of public discussion.