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The Ontario Human Rights Tribunal recently examined an application before it and an earlier statement of claim made in civil court by the same person, and concluded that the claims were virtually identical. They were based on the same facts, made the same allegations and sought similar remedies. Subsection 34(11) of the Ontario Human Rights Codeprevented the tribunal from hearing the application.

Essentially, the tribunal prevented the duplication of claims in different forums and dismissed the human rights application.

The applicant filed an application with the Human Rights Tribunal, alleging discrimination and reprisal against her employer on the ground of disability and sex. She claimed that her employer treated her unfairly and ultimately dismissed her when she tried to return to work following a short-term disability leave.

Then it became known that the applicant had already made a wrongful dismissal claim in civil court against the employer. Therefore, the employer filed a request with the tribunal that the application be dismissed because there was an ongoing civil court action concerning the exact same matter.

Subsection 34(11) of the Human Rights Code states that a person cannot make an application under the Code if a civil proceeding has been commenced in court, a court has already determined the issue of whether the right was infringed, or the matter has been settled.

The tribunal carefully examined the claims at the tribunal and at court, and concluded that the applicant relied on the identical facts, alleged that the same types of employment-related disability and gender rights were violated, and sought similar remedies.

The tribunal noted that the provision in the Code is there to prevent this kind of duplication from occurring, and the applicant was barred from bringing her application to the tribunal. As a result, the tribunal application was dismissed.

Employers should be aware of this decision. When a claim is brought against them in multiple forums, employers are recommended to be proactive in limiting the duplication of proceedings. As can be seen in this case, a request to dismiss an application at the tribunal is appropriate in situations where the same matter is in progress or has already been dealt with in court. It is important to prevent an employee’s forum-shopping before it gets out of hand and various decisions are made on the same matter. This requires the employer to be aggressive by bringing the request to dismiss before the tribunal as soon as possible.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2012 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

I live and work in a really great part of town with lots of great shops, restaurants and parks. Right across from the park at the end of my street is a coffee shop that I frequent. Recently, I noticed that almost every time I went in for my caffeine fix there was a guy sitting in his electric wheelchair outside the shop. I would occasionally say “hi” to him and sometimes we exchanged small talk about the weather or about the traffic. The guy was usually enjoying a coffee or a cookie or some other delight that I assumed he bought in the shop. Even with my keen eye for such barriers, I never really noticed that there was a step leading up into this shop, which made it virtually impossible for wheelchair users to navigate on their own.

One day, I was in the shop paying for my coffee when the barista excused herself and ran to the door. From where I was standing, I could see she was talking to my friend in the wheelchair; she was taking his order! I asked her how she knew he was there and she told me that he knocks on the door and the staff respond. He comes several times a day, she said.

I was amazed to see that the people running this small business are so in tune with the customers needs and were willing to “go the extra mile” to accommodate a customer in this way. Then I started thinking—they are being very nice, but are they actually complying with the current law?

Ok, that’s the story. This is the test:

1. Is this business complying with both the AODA and the OHRC?
2. Are the staff just being nice or is their behaviour a result of their employer having met certain legal responsibilities?
3. What responsibilities do you think they are complying with?
4. Which ones are they failing to comply with?
5. If you ran this coffee shop, what would you do to ensure you were complying with the law with respect to access for people with disabilities?

If you are absolutely sure about your answers, good for you! If not, see if you can find the answers in the First Reference Talks AODA archive, check out Accessibility Standards PolicyPro (you can take a free trial!) or join First Reference at the upcoming accessibility seminar in Toronto.

I will discuss this topic in my next post two weeks from today.

Learn don’t litigate.

Andrew Lawson
www.learndl.ca

© 2012 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

But are small organizations really doing themselves a favour by not writing documentation when the government does not require them to do so? A similar question applies to large organizations: Are they protecting themselves adequately if they wait until mandated due dates to initiate, maintain, complete and release documentation?

In the case of documentation exemptions, both the customer service and integrated regulations state the purpose of the exemption is to give small organizations time to comply with the law. However, the wording of the exemptions allows for them to be removed at a later date. Whether you are or are not legally exempt, there are a variety of reasons to prepare and maintain documentation before the compliance dates.

1. Alternative legal reasons to document: This is the priority reason to maintain documentation, even if you are not obliged under the AODA. Remember that the Ontario Human Rights Code trumps the AODA, and if a person lodges a human rights complaint against your organization, documentation will likely be one of your best methods of defense. Not because a judge will necessarily agree with your organization based on your documentation, but because a judge will see that you performed due diligence by maintaining documentation regardless of exemptions or compliance dates. For the same reason, large organizations should also attempt to comply with the AODA documentation requirements earlier. A paper trail demonstrating good faith is an excellent method to either win a case or reduce penalties.
2. Employment: Since it is clear the Ontario Human Rights Code already compels your organization to deal fairly and without discrimination toward any person, perhaps this section alone should make documentation a priority for all organizations. As an example: The paperwork that the Integrated Accessibility Regulation’s employment standard requires is logical and will be useful in defending your organization’s actions regarding a specific employee with a disability.
3. Promoting a responsible and capable image: Since obligated companies will post their policies on their websites (if they have one), the documentation can be an indicator of responsible practices, organizational success, and also the size/operational capacity of the organization. Transparent and measurable policies are good for business because they demonstrate a caring attitude toward the public. In this case, policies and documentation can augment the profile of a small organization. If, on the other hand, a person requests a document under the AODA from a small organization, and the organization responds that it doesn’t have to have documentation under the law, the requester immediately knows your employee threshold.
4. People with disabilities and their companions: We do not have a number to quote for the number of people that accompany people with disabilities, but do know that 15.5 percent of Canada’s population claims to have a disability. When people surrounding the person with a disability truly care, they are terrific advocates and clearly see if your organization is embracing accessibility. When people with disabilities and their entourage are shut out from places in society, they have to choose other places to spend or earn their money. The potentially significant loss of sales should provide enough incentive to organizations to do what they can to accommodate persons with disabilities and their companions. However, there are additional concerns. Anyone who is not allowed to access an organization’s public premises can ask to see the organization’s AODA policies and multi-year accessibility plans. People may ask to use the feedback mechanism to complain to your organization. Left unsatisfied, a person may lodge a formal complaint with the province. Under the customer service standard, the government may receive complaints as early as January 1, 2012. Obligations to provide emergency response information in the integrated standards also mean people can complain if you do not have documentation ready at the beginning of next year.

Consider another example under the employment standard: An obligated organization is required to maintain documented individual accommodation plans for persons with disabilities who require accommodation. Once initiated and maintained, the documentation process outlined in this obligation can help your organization in court, and might even help you avoid the courtroom altogether. Since the individual accommodation plan is transparent and requires employee consultation, if the paperwork is well structured and your organization has acted honourably, this file alone can stop frivolous claims and be useful in court.

There are numerous reasons that dates of obligation have been set, and too many are political. Legally, the AODA does not protect your organization from complaints under the Human Rights Code unless the AODA complies with the Code or provides a superior level of protection for people with disabilities. The compliance dates are a real legal problem that organizations must face.

Where the AODA is helpful is in the documentation processes that act as a terrific guide to protect your organization, customers and employees. When deciding whether to initiate documentation, consider proper paperwork to be as useful as a security camera. If you are not obligated yet, you do have a choice as to which documents to initiate, and you may just choose the ones that are of concern, like employment.

Make the AODA and all of the documentation work in a positive way for your organization. After dissecting each obligation, there is a clear logic applied to compel you to follow the rules. Remember, everyone was supposedly represented on the standards committees. The obligations that survived were accepted by at least 75 percent of the committee. On the cutting floor are a lot of other great recommendations that one day may pass into law. Using a best practice approach, organizations will at least comply, but consider upgrading their requirements. Aim to meet Code expectations as soon as possible. Since your organization has the first map to follow in these standards, use the information to your benefit, regardless of politics. Politics does not save you in a court of law.

By, Suzanne Cohen Share
Access (SCS) Consulting Services

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

The goal of the policy is to help make people aware of their rights, roles and responsibilities under the Ontario Human Rights Code.

What is the difference between sexual and gender-based harassment?

Sexual harassment means engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome.

On the other hand, gender-based harassment is a specific type of sexual harassment: any behaviour that reinforces traditional heterosexual gender norms. It is often used to get people to follow traditional sex stereotypes (dominant males, subservient females), and can also be used as a bullying tactic.

Both sexual harassment and gender-based harassment are violations under the Code.

How does this affect employers?

Employers have a duty to take steps to prevent and respond to sexual harassment and gender-based harassment in the workplace. Tribunals consider the following when trying to decide how well employers have responded to a complaint:

• The policy and procedures in place at the time to deal with discrimination and harassment
• How quickly the employer responded to the complaint
• How seriously the employer treated the complaint
• The resources made available to deal with the complaint
• Whether the employer provided a healthy environment for the person who complained
• How well the employer explained its response (any action taken against the harasser) to the person who complained

In terms of prevention, employers are recommended to have an anti-sexual and anti-gender-based harassment policy in place. The human rights commission’s document offers guidelines on what these types of policies should contain. Also, employers can communicate the policies by providing a copy to everyone as soon as they are introduced, making all employees aware of the policy in the orientation guide, and training employees and people in positions of responsibility about the policies.

The guide also discusses how employers should monitor their environments regularly to make sure they are free of sexually harassing behaviours.

To read more about the topic of sexual and gender-based harassment and policies and procedures, consult the following First Reference Inc. publications:

• HRinfodesk
• The Human Resources Advisor
• Human Resources PolicyPro

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

The Star article outlines a case in which the owner of a trucking company harassed several South Asian employees with racist insults, culminating in an incident where he called one employee a “Paki” and referred to her children as “half-niggers”. In another incident, the boss asked, “Are there not any good white people we could hire?” Several employees claimed they heard this type of language daily.

At the Ontario Human Rights Tribunal, both sides brought witnesses, but the adjudicator found the complainant’s witnesses more credible, since they offered “clear and unproblematic” testimony, while the testimony of the employer and his witnesses was “inconsistent, troublesome and ultimately less persuasive”. Credibility is a key factor in tribunal cases, and defendants should look realistically at their witnesses and evidence before trying to defend against a charge of harassment or discrimination.

Ultimately, the adjudicator said, “Having weighed the evidence before me I find, on a balance (of) probabilities, that (the employer) did repeatedly use the terms ‘Paki’ and ‘nigger’ as well as making other offensive comments to the applicant that he knew would be unwelcome.” The tribunal fined the employer $25,000 for discrimination under the Human Rights Code, and $6,750 for lost wages due to her termination, and ordered the employer to institute an anti-harassment policy and undergo anti-harassment training himself.

This case is informative in a number of ways: while it would be wonderful and ideal to remove this employer’s racist tendencies, the best we can do is attempt to make him see the error of his ways via sensitivity training. It might be possible by some appeal to reason, emotion or simple economics to show him that his prejudices are harmful and plain wrong, but we can’t force someone to change her or his beliefs, no matter how much those beliefs disagree with the broader goals of society.

What we can do is apply rules consistently and impartially in order to discourage undesirable behaviour and build equitable and safe workplaces—that is, places that are free from discrimination and harassment. In this way, the employer might hold his disrespect for other races, but also hold his tongue in the workplace. In addition, the requirement to implement an anti-harassment policy should force the employer to consider his words and actions, and encourage employees to speak up when they feel someone is behaving unacceptably. I hope in this case, the penalty is enough to encourage the employer to look closely at his beliefs and try to understand why they are inappropriate.

This type of case is also the reason that HRSDC has a strategy to deal with racism in Canada’s workplaces. The strategy includes workshops, research papers, links and, importantly, statements of the business case for diversity in the workplace, in language any business owner should understand:

Diversity can help organizations: identify and capitalize on opportunities to improve products and services; attract, retain, motivate and utilize human resources effectively; improve the quality of decision-making at all organizational levels; and reap the many benefits from being perceived as a socially conscious and progressive organization. These benefits should be manifested in an improved bottom line and maximization of shareholder value.

At First Reference, we’ve been talking a lot recently about harassment in the context of occupational health and safety law and regulations, and in Ontario, as of June 15, 2010, all employers will have to have in place an OHS-based anti-harassment policy. It would be wise to develop a policy that deals with discrimination and sexual harassment, too.

Does your workplace have anti-harassment/discrimination policies? Have you experienced or witnessed incidents of discrimination or harassment?

Adam Gorley
First Reference Human Resources and Compliance Assistant Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 5 comments |

(a) A worker can be expected to encounter that person in the course of his or her work; and
(b) The risk of workplace violence is likely to expose the worker to physical injury.

This would require employers to establish some sort of notification procedure for persons with a history of violence (employees, patients, clients or visitors to the workplace) so that workers who might encounter the person are aware of the risk of potential physical injury in their workplace environments.

I don’t know about you, but this sounds to me like profiling. According to WordReference.com, profiling means: recording a person’s behaviour and analyzing psychological characteristics in order to predict or assess their ability in a certain sphere or to identify a particular group of people.

What did I tell you!

Yet the legislation limits the disclosure only to information that is reasonably necessary to protect workers from physical injury.

What a relief! Our profiling obligations have limits; however, there are no specific provisions in the law regarding the type and amount of personal information that must be provided.

What about the employee’s right to privacy, you ask? Somebody reminded me in a conversation that victims and perpetrators of violence own the information that is or will be potentially shared and disclosed with, or by employers. Applicable federal or provincial private sector privacy legislation and common law rights exist to protect the personal information of all individuals.

Thus, privacy legislation and the right to privacy under common law apply in such situations. To comply with privacy legislation and rights, an employer should inform a person of the purposes for which it will collect, use and disclose information, as well as obtain consent. An employer can only disclose information if it is related to the primary purpose for collection. Moreover, in some cases, the law requires employers to disclose information (for purposes related to the primary purpose) without the consent of the person who provided it, where an individual would reasonably expect the disclosure.

Applying this principle in the context of violence prevention under Occupational Health and Safety law means: only sharing information about a person’s history of violence when the disclosure is for the primary purpose for which the employer has a right to collect, regardless of whether the employer has explicit consent from the person with the history of violence. This means that if an employer allows a person with a history of violence to access its premises, and collects information on that person’s history of violence for the purposes of support, protection, prevention of violence and/or accountability for violence in their workplace, the employer can disclose the information for these purposes if an employee can be expected to encounter that person in the course of his or her work, and if the risk of workplace violence is likely to expose the worker to physical injury.

Moreover, if the employer expects an employee, patient or client to encounter a person with a history of violence in the course of his or her work and on the employer’s premises, OHS law obliges the employer to disclose that history (personal information). The disclosure is necessary to ensure the safety and protection from potential incidents of violence that may cause physical injury to employees’, patients and clients.

Employees, patients and clients who share their history of violence with the employer should be made aware of OHS disclosure rules, and be assured by the employer that their personal information will be protected by specific safeguards, including measures such as locked cabinets, computer passwords or encryption.

It does not end there. The disclosure requirement also has human rights implications for employers. The Ontario Human Rights Code prohibits discrimination on the basis of a record of offences. An organization cannot refuse to hire, continue to employ or treat differently with respect to employment policies and practices people who have criminal records for which they have received a pardon.

This implies that if an employer discloses (under the proper circumstances related above) an employee’s criminal conviction relating to physical violence for which a pardon has been granted, the employer could face a human rights complaint on the basis of the protected ground of record of offences. The disclosure could create a stigma on the person’s character. This means that employers have a responsibility to ensure that they are not taking part in, condoning or allowing discrimination or harassment to occur based on this prohibited ground.

It makes me wonder if the Ontario government fully understood how problematic the application of the disclosure requirement could be for an employer! What do you think?

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

 Do you do this?

 How does this habit play out in your business relationships? You work in a richly diverse environment and you have respect for human rights. Yet, you still want to know where everybody fits in.

 Do you find yourself wanting to ask people, “What are you dressed up as?”

 I am curious if you think it is negative or positive to categorize others. Maybe it’s important to know if a person feels, on the inside, the same way they appear on the outside.

 What do you think?

© 2009 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

I am honoured to have this opportunity to share with you my insights and ideas in the important and ever-changing area of workplace human rights and occupational health & safety.  Looking forward to a lively and interactive online exchange!

© 2009 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

The facts of this case (Maciel v. Fashion Coiffures) indicate that when the employee applied for the job, she did not inform the employer that she was pregnant. The woman admitted in court that the employer was unaware of her pregnancy at the time of hiring.  

This case demonstrates that it is still difficult in our day and age for women to inform their employers that they are pregnant and will be taking time off from work after they give birth without the fear of losing their jobs.

Under human rights legislation in Ontario and across Canada, job applicants are not required to divulge during an interview or at any particular time after they are hired that they are pregnant. Also, it is illegal to fire workers because they are pregnant or are taking (or have taken) maternity/pregnancy or parental leave.

Matt Lalande’s blog on Employment-Law.ca indicates that he was surprised that in 2009 employers still do not fully comprehend the potential ramifications and risks they face by discriminating against women. So am I, to tell you the truth. However, Kate Sellar, a lawyer at the Human Rights Legal Support Centre who represented the employee in this case, stated in the Centre’s press release that the Tribunal receives 40 calls a week from pregnant women who were fired once the employers knew that they were pregnant.

When you read the facts of this case, and as noted by the adjudicator, it is clear that the employer failed to prove a non-discriminatory explanation for the termination of the employee’s employment, and on the balance of probabilities, the employee’s pregnancy was likely the only factor in the decision to terminate. Adjudicator Naomi Overend continued in her written decision, “I am mindful of the vulnerability of the applicant. She was young, just out of school, and coping with an unplanned pregnancy. This was to have been her first full-time job, which she testified she was very excited about, making the experience that followed that much more distressing.”

This decision is a serious reminder to all employers, not just in Ontario, that it is hard to explain terminating a pregnant employee or an employee on maternity/parental leave. There is no loophole; you must know the law and comply.

Yosie Saint-Cyr

Human Resources and Compliance Managing Editor

© 2009 First Reference Inc. All Rights Reserved. | Permalink | 3 comments |

Andrew Lawson is a consultant to both the federal and Ontario governments in the areas of human rights and health and safety law. Since 1996, he has conducted extensive legal research in the areas of human rights and occupational health and safety law.

He has worked in the people management business for over 25 years. Drawing on his extensive research and experience, he teaches employers how to develop policies and practices that build on the experience of other professionals. His career has provided him with the opportunity to work in the health care sector, with disabled persons, in customer care and in legal services. 

His teaching takes the form of interesting, interactive and informative workshops. He has conducted workshops for hundreds of groups in every province of Canada, throughout the United States and in Australia. Today, he continues to conduct up-to-date legal research and bring this current knowledge to organizations like yours. His legal commentaries have been published by First Reference Inc. on HRinfodesk.com, and by the Human Resources Professionals Association (HRPA) of Ontario.

You can learn more about Andrew and his work on his website www.lawsonemploymentlaw.com.

Yosie Saint-Cyr

Human Resources and Compliance Managing Editor

© 2009 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |