First Reference Talks » policy

Reverse discrimination: is it just an attitude?

Andrew Lawson — Tue, 20 Dec 2011 14:00:04 +0000

Image: www.fitsnews.com

Reverse discrimination is not a legal term but a socially constructed idea that describes a particular phenomenon; it is a side effect of employment equity programs, as they are called in Canada; “affirmative action” programs in the United States. Reverse discrimination in employment is perceived to have occurred when the majority (or a member of it) is denied an opportunity because the law forces an employer to hire a person from a minority group.

So, reverse discrimination, by definition, occurs when one person(s) loses an employment opportunity and another person(s) gains that opportunity and the hiring decision is based on race, age, disability or other minority criteria.

Federally regulated employers in Canada (banks, airlines, the federal government, telecommunications companies etc) are required by law to have active programs that seek to provide the employment of four main groups: women, aboriginal peoples, persons with disabilities and visible minorities. These programs make it legal to discriminate against a job candidate that does not fit into one of the above categories; it is legal discrimination.

When a participant in one of these programs is hired over a qualified majority employee, fulfilling a legal mandate, “reverse discrimination” has occurred; the majority worker is the “victim.”

Many workplaces have policies that allow a worker who needs to be on “light duties” to jump the queue, so to speak. In these situations a worker who is returning to work post-injury, is pregnant or who may suffer from a variety of various medical conditions is given priority in hiring over a more senior or more qualified candidate. This action is often described as “reverse discrimination.”

These employment programs are perfectly legal in most jurisdictions because human rights legislation permits employers to favour historically disadvantaged workers in an attempt to “level the playing field.” The idea is that without these programs otherwise qualified individuals may never be given the chance to prove themselves because of widespread misperceptions of illness, disability and cultural norms.

I find it interesting that we even use the term “reverse discrimination.” It begs the question, “a reversal from what?” The examples described above are examples of discrimination—period. They are examples of “legal” discrimination but are they examples of “reverse discrimination” because the majority is being denied an opportunity? Can discrimination only happen to blacks and gays and single mothers and when “people like us” are discriminated against we have a different name for it?

Reverse discrimination!

Isn’t it interesting how people act when occasionally faced with unfair treatment that others live with every day of their lives?

This article looks at attitudes over legal facts. In order to push back against discrimination in the workplace, in fact in society at large, we need to explore attitudes in addition to educating ourselves about the letter of the law.

Learn don’t Litigate.

Andrew Lawson
www.learndl.ca

Occupational health and safety missteps often cost workers their lives

Andrew Lawson — Tue, 13 Sep 2011 13:00:00 +0000

Danger Lurking

Nova Scotia is a wondrous place full of amazing–and dangerous–places. I visited “Canada’s Ocean Playgound” this summer and came home with a renewed appreciation for labour history and the reality that occupational health and safety missteps often cost workers their lives.

While visiting the world famous Peggy’s Cove I was struck by the profound respect local fishers have for the power of the sea depicted by the sign pictured above. I have always been caught up in romantic notions of the sea and never really stopped to think that, for many, the sea is a workplace; I never really thought of occupational health and safety regulations on the ocean!

I had the opportunity to visit a coal mine in Cape Breton and be escorted underground by a real-life “man of the deeps.” Seventy-two year old Abbie Michalik was our guide and fascinated us with his myriad tales of working underground for many decades–since he was a young boy.

One of Abbie’s amazing stories was about a general strike when the miners and their families suffered great hardship mostly because everyone in Glace Bay depended on the mining company for everything, including food. He told us that the sole gain at the end of this ordeal was a shortened work week and the prohibition against employing minors.

Abbie gave me the impression he thought this was precious little gain for the hardship the striking workers endured. I had exactly the opposite thought; worker’s rights and health and safety standards are achieved slowly and are the result of hardship and dogged determination on the part of those fighting for what they believe to be fair.

What I took from this experience and what I am asking you to consider is that we often take our rights and obligations for granted. We often forget that health and safety standards–the legal requirement that an employer exercise due diligence–have been created after serious, and often fatal, accidents have occurred; these standards have been created in a response to the real harm suffered by a worker.

Take advantage of the wisdom borne of hindsight and out of respect for those who have gone before us–” . . .savour the sea from a distance.”

Andrew Lawson
Learn don’t Litigate

Facebook, privacy and the workplace

Adam Gorley — Mon, 22 Aug 2011 14:30:58 +0000

You might have heard about the case in which two car dealership workers were fired for cause after they wrote offensive and harassing messages on Facebook about their employer and managers.

Yosie wrote about it on Slaw.ca last fall.

The case is a few months old now, but no less important in its implications for employers. Terminations based on employees’ use of social media (aka, “Facebook firings”) remain rare in Canada, but you can be sure the numbers will grow. It is likely that there are several such cases before Canadian courts right now.

The primary defence in such proceedings is a strong, clear and consistent social media policy. When preparing your policy, consider these provisions:

Explain what social media is and what the policy covers
Remind employees about the nature of social media
Include non-work usages of social media
Remind employees that what they publish reflects both on themselves and the employer
Prohibit the violation of laws
Prohibit the violation of employer policies
Prohibit speaking on behalf of the employer
Advise that revisions may be requested
Include specific rules regarding the use of social media in a business capacity
Advise that the employer will monitor employee usage of social media while at work, if applicable
Advise of the consequences of a breach

See the link above for more detail, and find more about how social media are affecting the workplace here on the blog.

‘Sexting’ becoming a problem in the workplace

Christina Catenacci — Fri, 05 Aug 2011 13:00:00 +0000

What prompts a supervisor or worker to send a co-worker inappropriate text messages? In British Columbia, sexually charged messages in the workplace have led to trouble for employers. What do employers need to know so they can avoid being on the hook for sexual harassment?

In two recent cases, set out here and here, the BC Human Rights Tribunal confirmed that when the female employees were continually sent sexual text messages by a supervisor or co-worker, the female employees were indeed sexually harassed. The employers in both cases were held liable for not handling the situation properly. In one case, the employer terminated the employee who was sexually harassed. In another, the employer replaced the harassed female employee after she took a stress leave as a result of the harassment.

The employers were held liable because they did not meet their responsibility to ensure a workplace free of (sexual) harassment and they did not uphold the terms and conditions of the employees’ employment.

What can employers do to avoid this outcome?

First, it is important to understand what sexual harassment means. It occurs when someone is subjected (often repeatedly) to unwelcome sexual or gender related remarks and gestures, including:

Engaging in inappropriate touching
Making offensive jokes or remarks about women or men
Making sexual requests or suggestions
Staring or making unwelcome comments about someone’s body
Displaying sexually offensive pictures
Engaging in verbal abuse involving someone because of gender

Sexual harassment occurs most often to women, but it can also happen to men and between members of the same sex.

Employers must make every reasonable effort to ensure that no employee is subjected to sexual harassment. Employers must also, after consulting with affected employees or their representatives, if any, issue a policy statement concerning sexual harassment and train all under the employer’s direction about the policy statement.

Employers should be proactive in preventing sexual harassment in the workplace by using the following recommended practices:

Issue a strong policy statement that defines and condemns harassing behaviour
Inform all employees about the policy and their rights under the policy
Develop a complaint procedure, which includes management’s response to investigating a complaint
Spend extra time training managers and supervisors about sexual harassment, and inform them of their responsibilities
Discipline managers and employees involved in sexual harassment
Keep thorough records of complaints, investigations and actions taken
Publish the policy annually
Monitor and tour the premises to ensure that sexually explicit material is not displayed in the workplace

As can be seen in the cases mentioned above, it would have been beneficial for the employers to have anti-discrimination and anti-harassment policies in the workplace. It is recommended that employers have these policies, train all staff about the policies and make clear the consequences of not complying with the policies.

Christina Catenacci
First Reference Human Resources and Compliance Editor

Accessibility for Ontarians with Disabilities Act (AODA) – Learn the latest

Christina Catenacci — Wed, 08 Jun 2011 13:00:34 +0000

Employers in Ontario must be aware of the changes that are happening and the requirements that will be placed on them in the very near future by the Accessibility for Ontarians with Disabilities Act (AODA).

The AODA requires the public and private sectors to work together to make Ontario accessible for persons with disabilities. The main purpose of the Act is to identify and remove the barriers that prevent a person with a disability from fully participating in all aspects of society. These might include a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice.

The Act allows for accessibility standards to be created by regulation. These standards constitute the rules that businesses and organizations have to follow to identify, remove and prevent barriers to accessibility. At this stage, accessibility standards have been created or are being created in the following areas: customer service, information and communication, employment, transportation and built environment. Accessibility standards require provincially regulated employers to address accessibility issues in ways not expressly required by the Human Rights Code.

Each standard contains (or will contain) both specific and general requirements involving:

Developing accessibility policies and plans
Training employees and volunteers; and
Considering accessibility when purchasing goods or services

Private sector employers have less than six months to get ready for the standards under this new legislation. Jeff Murray’s presentation at the 12th Annual Ontario Employment Law Conference will cover:

The new accessibility standards and preparing your organization to meet them;
The content of compliant policies;
How to prepare key workplace parties for their new roles; and
Lessons from public sector employers covered since 2010.

We invite business owners and managers who are interested in finding out how to comply with the new standards to attend. Register—and Learn the latest

Christina Catenacci
First Reference Human Resources and Compliance Editor

Misconduct amounted to just cause but did not disallow termination notice

Christina Catenacci — Wed, 30 Mar 2011 13:15:49 +0000

Image: mybindi.typepad.com

A recent Ontario case dealt with an employee’s misconduct that clearly amounted to just cause for termination. The employee breached many company rules and pursuant to the progressive discipline policy, the employee should have been terminated. However, the employee was still entitled to receive termination and severance pay based on his 17.5 years of employment.

Why?

Because his misconduct did not constitute “wilful misconduct, disobedience or wilful neglect of duty” pursuant to Ontario Regulation 288/01.

Subsection 2(1)(3) of Ontario Regulation 288/01 lists employees who are not entitled to notice of termination (or termination pay in lieu of) under the Employment Standards Act. Included on the list are employees who have been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

Likewise, subsection 9(1)(6) of the Regulation lists employees who are not entitled to severance pay under the Act, including those who have been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

In this case, since the employee’s misconduct was clearly unintentional carelessness, attitude problems and that he did not take the consequences of his actions very seriously when he breached company rules, it was not wilful and did not disallow termination notice or pay. That is why the Ontario Superior Court of Justice found that the employee was entitled to termination and severance pay.

So what does this mean for employers? Make sure if you are trying to claim that an employee is exempt from receiving termination and severance pay under Ontario Regulation 288/01 for wilful misconduct, you must show that the misconduct was intentional and reckless, not just careless.

Christina Catenacci
First Reference Human Resources and Compliance Editor

Social media make it easy to create controversy, but smart practices can limit the risk

Adam Gorley — Mon, 16 Aug 2010 13:30:33 +0000

Technology usually helps us function by making daily tasks easier, safer, more efficient, and so on. But sometimes a technology comes along that doesn’t simply improve the way we do something, it actually creates a new type of behaviour. I think this is the case with online social networking, which allows individuals to broadcast to mass audiences in a way that wasn’t available in the past. The question remains, however, as to whether this activity makes life any easier! Some have certainly found it just causes them trouble.

Nowadays, when I think of social networking, I think of Twitter, mainly because of its simplicity and inclusiveness. It’s easy to use, and because of that, people have come up with countless functions for it. But it doesn’t try to be everything for everyone; in fact, it encourages users to go elsewhere—to blogs, news sites, games and entertainment—and then come back for more.

Still, its ease of use can deceive users into false confidence, and lead people to say and do things they might not otherwise, with real—and sometimes legal—consequences.

Consider this quote: “I was surprised about the controversy, but I guess you never know who’s watching. … It’s ridiculous that it would become such a big deal, but you’re a professional so you still have to watch what you say.” Any professional could have said this after her or his first online faux pas. This was a football player with the Canadian Football League.

Like many other businesses, the CFL and its teams consider Twitter a valuable marketing tool, and encourage players to get online and engage with fans, but they understand—to some extent—the risk of players making inappropriate tweets. The quote above refers to Rob Murphy, a player with the Toronto Argonauts, who faced fines for tweets (now deleted) in which he mentioned “smelling foreigners” at Union Station and riding the train through “Frenchland”. Murphy insisted he made the comments in jest, but the league and his team fined him anyway, under its “social media policy”. Like any business, the CFL has to make it clear to customers that it doesn’t condone racism and discrimination, whether joking or serious.

And today I came across the Office of the Privacy Commissioner of Canada’s Twitter policy. This type of policy is important for any type of business, from professional sport leagues to government agencies, regardless of the number of employees. It’s also a good idea to train employees on the policy, and it’s imperative to apply the policy consistently.

The CFL’s Twitter story goes to show you that all types of businesses are discovering new ways to use social media to promote themselves, but the media are still too new to fully understand, and too amorphous to control. Twitter and other social media allow people to behave in new ways, but they don’t set out rules to limit the new behaviour. That’s up to the users.

Interestingly, despite Murphy’s questionable tweets, his popularity on Twitter has increased significantly since he posted them. That shouldn’t be too surprising: controversy can be a valuable tool to lure readers—just look at the business of gossip—but it’s probably not a great policy for the majority of businesses!

What do you think? Do you have a social media policy? Have you punished or warned any employee for contravening it?

Adam Gorley
First Reference Human Resources and Compliance Editor

Slaw: Human rights tribunal defends family values: work-life balance ruling

Yosie Saint-Cyr — Fri, 13 Aug 2010 17:00:02 +0000

In a ruling that could set a precedent for all working parents and employers, the Canadian Human Rights Tribunal recently decided that employers must promote work-life balance. Read the full article on Slaw.

‘Hazing’ and ‘horseplay’ in the workplace – a serious matter for the employer

Christina Catenacci — Fri, 04 Jun 2010 14:00:38 +0000

I recently read an article on “hazing” and “horseplay” in the workplace. Photos and videos revealed incidents where employees were subjected to some very unusual, and downright unacceptable, treatment in the transportation and works department of their municipal employer.

Image taken from: http://www.thestar.com

In one clip, employees were bound face-to-face with duct tape on top of a large table in a workshop, while other employees threw water balloons at them. In another recording, an employee was bound with duct tape, put on the back of a truck and sent through a car wash. One clip even showed an employee, on his birthday, who was told to lean over a table, and other workers were instructed in turn to hit him, and to “hit hard and to kick or punch in the face, ribs or groin area”. If the blow didn’t appear hard enough, they were told to hit harder.

After viewing the video, the police became involved and started investigating the allegations. Peel police stated, “if you take the video alone and look at it, you would think that’s more than inappropriate. The potential there is, there’s a criminal act going on.”

Employees have claimed that the hazing had been going on for about five years. However, the employer has stated that it first learned about situations where employees in the transportation and works department were tied up with duct tape, spanked until they were bruised, and humiliated at the behest of one of their supervisors in November 2009. It was only then that the employer commenced its own investigation into the matter.

The employer’s investigation concluded the behaviour was in the nature of horseplay or locker room antics. According to the report, the employees viewed the conduct as “appreciated, good-natured, and voluntary”.

Yet the employer has been quoted in a news release as saying, “We want to stress how seriously we took the allegations and that in no way do we condone this type of behaviour”.

At this point in time, only one supervisor has been disciplined.

Furthermore, the Ontario Ministry of Labour got involved after receiving a call from one of the employees, and began investigating immediately. The inspector stated, “By the time we got there, the city had done their job and taken care of everything. They were in compliance and there were no orders issued.”

The questions I had after reading this story were:

Was the behaviour really “appreciated, good-natured and voluntary”?
Did the employer act quickly enough to commence an investigation?
Has the employer done enough via discipline to make sure all individuals in the workplace understand this should not happen again?
Has the employer done its job of creating anti-violence and anti-harassment policies and training its employees and supervisors about them?

One employee answered my first question with a plain “no”, and characterized the conduct as assault and harassment. He stated, “I can assure you it’s more than horseplay. It’s oppression. We live under fear”. He noted that employees were afraid of reporting the abuse for fear of losing their jobs.

With the new violence and harassment legislation coming into force in Ontario on June 15, 2010, employers should ensure they are ready for the changes. The conduct mentioned above could indeed be classified as workplace violence and harassment. Employers are recommended to conduct workplace assessments, create anti-violence and anti-harassment policies and procedures, and train all individuals in the workplace about workplace violence and harassment. There should also be established complaint procedures, investigation procedures and disciplinary consequences set out and consistently enforced.

I’m wondering: has your company encountered a situation that might have crossed the line, where the employer should have conducted an investigation, or put a stop to a potentially abusive situation? Ask yourself, are you really ready for the new workplace violence and harassment legislation? This case is a great example of violations of violence and harassment prevention under Occupational Health and Safety, as well as Human Rights legislation.

Christina Catenacci
First Reference Human Resources and Compliance Editor

Bill 168 – Meeting your obligations for violence and harassment prevention

Adam Gorley — Fri, 21 May 2010 17:00:58 +0000

Image from: www.safeworkers.co.uk

There’s lots of talk in Ontario’s workplaces and online about workplace violence and harassment and the Bill 168 amendments to the Occupational Health and Safety Act. Hopefully by now the message is getting through, and employers are taking the steps to prepare for the June 15 deadline. (That’s about three weeks away!)

Whether you’re prepared or not, there’s lots you can learn about Meeting Your New Obligations for Violence and Harassment Prevention at the final session of the Ontario Employment Law Conference on June 2, 2010.

You might say, “But I’m ready. My company has got a plan in place that aligns with the new law.”

And you might be right. But the key element of this presentation isn’t simply creating a plan that complies with the basic requirements of the law; it’s developing and implementing a workplace violence and harassment program that operates effectively, and making sure that staff, from the bottom to the top, understand their obligations. That means everything from preparing employees to handle incidents of violence and harassment when they occur to creating a work environment where everyone understands the dangers of violence and harassment and the importance of preventing or eliminating them.

You won’t be sorry for information from a legal perspective, no matter how far along with your planning—maybe this session will answer those final questions that are keeping you from wrapping up your workplace violence and harassment prevention program.

Of course, there is much more – Register for the 2010 Employment Law Conference, and Learn the latest! brought to you by First Reference and Stringer Brisbin Humphrey.

Adam Gorley
First Reference Human Resources and Compliance Editor