Human Rights Legislation
In Canada the respect of human rights in employment is legislated in all jurisdictions. This legislation is quasi-constitutional and remedial in nature and applies to all employers to ensure that the individual human rights of workers, which have been identified as being of vital importance, are respected.
As it relates to employment relationships, human rights legislation gives employees and potential employees statutory protection from discrimination on a number of core grounds, being race, colour, age, gender and disability. Creed and religion are also recognized prohibited grounds of discrimination in all jurisdictions.
The federal and provincial legislative schemes typically establish complaint based systems under which statutorily created human rights tribunals have the jurisdiction to deal with complaints of discrimination in employment and other contexts. Courts of law have also become increasingly open to the consideration of common law claims that feature a human rights component such as constructive dismissal claims. In the unionized context, grievance arbitrators typically interpret and apply human rights legislation.
Human rights tribunals have the authority to order a wide variety of remedies such as orders to cease contravention of the legislation; monetary awards for injury to the dignity, feelings and self-respect of claimants; compensatory awards for financial losses, most typically lost wages; and the recovery of expenses such as job search expenses or hearing attendance related costs. In some jurisdictions, legal costs can also be awarded where a party to the proceeding has engaged in improper conduct or brought a trivial, frivolous or vexatious complaint. Reinstatement is also an available remedy and although not often ordered, typically because a large number of complaints are settled before the hearing stage, in a 2013 Ontario case where an employee who had been absent from the workplace for almost 10 years, the tribunal thought it appropriate to order reinstatement together with full compensation for lost wages over the employee's entire period of absence.
Employers' Obligations in the Employment Context
Human rights legislation in the employment context fulfills a dual purpose: (1) to ensure that individuals are not precluded from employment for a discriminatory reason, which means that employers' hiring practices can be challenged as discriminatory; and (2) to ensure that during employment, employees are free from direct discrimination, as well as indirect discrimination which can occur when an employer unwittingly adopts policies that have a discriminatory effect on a particular group of individuals.
Additionally, human rights legislation imposes a positive duty on employers to accommodate employees with respect to an identified ground of discrimination, in recognition that there may be different ways for an employee to perform the job while still accomplishing the employer's legitimate work-related objectives.
Generally speaking, employers are required to meet their accommodation obligation up to the point of undue hardship. Typical factors used to consider whether undue hardship has been reached are the cost involved, outside sources of funding and health and safety requirements.
The case law dealing with employment based human rights which has helped to flesh out the scope of an employer's duty to accommodate has typically been centered on cases involving discrimination on the grounds of race, religion or disability, the latter typically focusing on physical impairments relating to recognized illnesses. More recently however, less common grounds of discrimination, namely age, family status and mental illness, have been at the forefront of human rights decisions, and are representative of an emerging legal trend. These developments are not surprising given that Canada's workforce is aging and employees are increasingly working beyond the traditional age of retirement. There is also an increased awareness and understanding of mental health in our society and the fact that it can manifest itself in the work environment.
Age and Hiring Practices
In a case involving a 60 year old former lawyer who applied for a position as a legal writer, the Ontario Human Rights Tribunal determined that a decision by the employer not to select him for an interview was a violation of the candidate's right to be free from discrimination on the basis of age. The Tribunal concluded that the employer's statement to the candidate that it was moving towards more junior candidates with less experience and lesser salary expectations was the reflection of a stereotypical assumption and on that basis awarded damages to the unsuccessful candidate for injury to his dignity, feelings and self-respect.
In another recent arbitral award dealing with the grievance of a single mother who worked rotating night and day shifts, an arbitrator concluded that the employer's rule requiring employees to work a combination of day and night shifts had the effect of imposing a burden on the grievor due to her childcare responsibilities that was not imposed on other employees who did not share her family status. As a result, the arbitrator ordered that the grievor be accommodated by working day shifts exclusively.
In another family status case dealing with shift work, the Federal Court of Canada confirmed that an employment rule which interferes with an employee's ability to fulfil her substantial parental obligations in any realistic way is discriminatory.
Fleshing Out the Duty to Accommodate
The cases referred to above, as well as a number of recent decisions relating to the duty to accommodate mental illness, establish that once an employer is made aware of the employee's problem (i.e. mental illness, family obligations) the employer has a duty to investigate and consider accommodation on an informed basis, using a contextual approach and an individualized analysis. This in turn signifies that the employer and the employee must engage in meaningful discussions regarding accommodation on the basis of appropriate information.
These cases and future ones will continue to help flesh out and shape the statutory duty to accommodate which employers have under the Canadian legal system.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.