Human Rights in the Workplace

Lack of accommodation on return to work has food service company eating crow

In Tofflemire v. Metro (Windsor) Enterprises Inc., the Human Rights Tribunal of Ontario examined the efforts made by a food and drink services company to accommodate a long-serving employee upon his return-to-work after having a heart transplant.  The Tribunal determined that the company's efforts were woefully inadequate and awarded damages to the employee as a result.

The Facts

Mr. Tofflemire began working for Metro Enterprises in 1981.  His work involved driving a mobile catering truck on designated routes selling food and drinks at construction job sites.  Mr. Tofflemire also happened to have a history of heart-related problems and required modification to his job from April to September 2006, which the company provided. 

In mid-September 2006, Mr. Tofflemire left work to have a heart transplant, which ultimately took place in June 2007.  While he was recovering from his surgery, Mr. Tofflemire maintained contact with his employer and Metro expressed the desire to see their employee return to work. 

In March 2008, Metro wrote to Mr. Tofflemire's doctor asking him to identify which functions of the mobile catering job Mr. Tofflemire could perform.  The doctor advised that the employee would require a modification to his duties that would limit him from lifting no more than 10-15 pounds initially but then Mr. Tofflemire could increase the lifting weight as he was able to tolerate it.  Further, the doctor recommended the following return-to-work schedule:

• initial return-to-work for 2 hours per day for one month;
• move to four hours a day for a further month until Mr. Tofflemire was able to work a full eight hour day.

Mr. Tofflemire returned to work on April 7, 2008.  He worked two hours a day for one week in the stock-room.  He next returned to work on June 9, 2008 and worked in the stock room for two hours a day for a period of two weeks.  The employer then took the position that there was no further available work for Mr. Tofflemire in the stock room. 

So, Mr. Tofflemire expressed a desire to be transferred to the company's vending machine division which would involve supplying food and drinks to vending machines at a number of locations. He held the view that the vending machine position would be less stressful than his catering truck position.  There were six permanent jobs in the vending division, all filled by long term employees.  There was, however, a summertime replacement position held by a person who was hired at the beginning of the summer of 2008 and, given Mr. Tofflemire's seniority, he knew he could bump this person.  Mr. Tofflemire was fully aware that this was a temporary position but he was prepared to do the job for that temporary time period and then resume discussions with Metro about how he could be accommodate further after the job ended.  Mr. Tofflemire obtained a letter from his doctor stating that by the end of June 2008, he was medically cleared to work a 7 hour day.

In early July 2008, Mr. Tofflemire met with his employer to discuss his return to work.  During the meeting, Mr. Tofflemire said he was told by the company's President that the vending division had no job for him and that he would have to go back to the catering division.  The President recalled that the company had, instead, asked Mr. Tofflemire to provide a functional analysis form to indicate he was capable of carrying out the job functions of the vending position but this was never provided.  Mr. Tofflemire denied being asked to complete such a form.

On July 27, he filed a grievance alleging that the company had not reinstated his employment even though he had been cleared to return to work by his doctor.  The next day, the company wrote to Mr. Tofflemire offering him a customized seven hour per day mobile catering route.  During the grievance process, the company indicated that they did not want to assign Mr. Tofflemire to any position in the vending division.  Ultimately, the union concluded that Metro's job offer of the modified catering position was reasonable in the circumstances.

On July 31, Mr. Tofflemire wrote to his employer to say he would consider the proposed job offer after seeing his doctor on August 5 and that he would be in contact with them the week of August 11.  On August 5, Mr. Tofflemire's doctor wrote to Metro advising that Mr. Tofflemire should neither take on a job that required 10 hour days nor should the job involve long periods of exposure to the sun (as long exposure to the sun increased the risk of skin cancer in transplant patients).

Subsequently, the company's President met with Mr. Tofflemire's union representative.  But, the President simply advised that transfers between divisions were not possible.

On August 18, 2008, the employer wrote to Mr. Tofflemire to state that they had not heard anything from him.  They advised that they were taking his lack of response to mean that he had turned down their job offer, was no longer seeking his job, seniority or other rights and, as a result, they considered his file to be closed.  Metro did not, however, take steps to formally sever Mr. Tofflemire's employment after sending this letter and at no point issued a Record of Employment.

Mr. Tofflemire alleged that Metro Enterprises and its President, in his personal capacity, discriminated against him in employment on the basis of disability in that it failed to provide him with reasonable accommodation when he sought to return to work following his surgery.  He also contended that the failure of Metro to issue a Record of Employment was also discriminatory as it deprived him of his rights to collect termination and severance pay under Ontario's Employment Standards Act.

The company and its President asserted that its July proposal to have Mr. Tofflemire return to a modified mobile catering route position was reasonable accommodation.  It was Metro's view that the job had shortened hours (7 hours), was less stressful and although it required Mr. Tofflemire to be outside that did not necessarily mean he would be exposed to an undue amount of sun as he could use sunscreen, wear protective clothing and park his truck in a shady area.  The company, in essence, argued that it would be an undue hardship for it to place Mr. Tofflemire in the vending division.  It was pointed out that transfers into the vending division had become less attractive over time because layoffs from the vending division would be done on a seniority basis and someone coming into that division could lose their job if they were junior to current members in the vending division (due to the vending division operating under a different collective agreement).  Concern was expressed that existing vending division employees might come to resent the accommodation of Mr. Tofflemire in that division.  The company noted that it was also at the point of downsizing the vending division from six to three positions.  Finally, the company took the position that there was a general economic downturn that was impacting the company's financial status and if they had to create another position in the vending division to accommodate Mr. Tofflemire, it would have cost $53,000 in salary at a time when the company was losing money. 

The Decision

The Tribunal concluded that if the company had not received the August 5 doctor's letter indicating that Mr. Tofflemire needed to avoid long term sun exposure, this complaint would not have succeeded.  The Tribunal indicated that as the proposed mobile catering position included modifications regarding the length of hours to be worked (reducing them from 10 hours to 7) coupled with changes to decrease the stress of the job it would have, absent the doctor's letter, met the duty to accommodate.  But, the doctor's letter was found to have changed Mr. Tofflemire's circumstances and required the company to re-examine its accommodation proposal.  However, after receiving the August 5 doctor's letter, the Tribunal determined that the company did little to reconsider its position, failed to meet with Mr. Tofflemire and, instead, wrote its August 18 letter saying they were closing his file. 

According to the adjudicator:

"...the respondents did not want to reconsider whether their offer of a modified catering job was reasonable or to reconsider the applicant for any position in the vending division because they believed this might entail further difficulties for them.  I believe that they felt their best strategy to manage the situation was to end the discussion on accommodation with the applicant, as demonstrated by their August 18 letter."

The Tribunal rejected the company's argument of undue hardship pointing out that all of the concerns that had been raised related to a permanent transfer of Mr. Tofflemire into the vending division.  However, Mr. Tofflemire was only seeking to be considered for the temporary summer job available in that division.  The company had not raised any undue hardship issues relating to that proposal.  Concluding that the company and its President had made inadequate efforts to reconsider the ability to accommodate Mr. Tofflemire in light of the August 5 doctor's letter, the Tribunal pointed out:

"A reasonable accommodation in these circumstances could well have been to place the applicant in the temporary summer position.  It is true that this would have only been a short term solution but it was an alternative the respondents did not meaningfully pursue after receiving the August 5 letter.  In taking no substantive action the respondents failed both in terms of procedure and substance to meet their duty to accommodate the applicant." (emphasis added)

In terms of remedy, the Tribunal ordered that the company and its President pay Mr. Tofflemire $7,500 in general damages and, in addition, lost wages.  The company was also ordered to resolve his employment status and provide any entitlements under the Employment Standards Act.

What to take from this case:

The Tribunal's decision is a great reminder to employers that the duty to accommodate employees is an ongoing one.  If there is a change in an employee's circumstances, an employer must reexamine the accommodation that has already been put in place for the employee or that has been proposed in order to determine whether it meets the revised needs of the employee.  A failure to do this can lead to a finding that reasonable accommodation has not been provided. 

Knee-jerk reactions to an employee's accommodation proposals should also be avoided.  To be able to successfully assert undue hardship associated with an accommodation request, you must be able to show why that particular request cannot work.  Here, the company appears to have either consciously or subconsciously avoided examining what the employee was actually seeking due to a desire to avoid any movement into that division whatsoever.  (Have a look at my prior post on what undue hardship is for further information).

Additionally, at the risk of sounding like a broken record, I cannot stress enough how critical it is to have a written procedure in place in your workplace relating to the duty to accommodate.  Properly written, it should spell out all of the steps that should be taken by an employer whenever a request for accommodation is made by an employee or a change in the employee's circumstances occurs.   Such a procedure, properly followed in all circumstances, would help an employer avoid missteps the likes of which occurred here.

Lastly, note here that the company's President was found, in his personal capacity, to be liable for what happened here and jointly responsible with the company for paying damages to the employee.  As the President was intimately involved with discussions with Mr. Tofflemire and his union relating to accommodation, and he was the operating mind of the company, it was well within Mr. Tofflemire's right to name the President as a personal respondent to his complaint and within the Tribunal's jurisdiction to make a finding specifically against him.

(Image by linder6580)

Conference reflects on Equity in the Workplace

Those of you looking for an interesting conference to attend this month will want to check out the University of Western Law Lecture and Conference.  The theme of this year's Conference is "Equity in the Workplace: Twenty- Five Years after the Abella Report."

 

Michael Lynk, Professor in the Faculty of Law at The University of Western and one of the conference organizers, provided me with a brief overview of the conference:

 

"Madam Justice Rosalie Abella of the Supreme Court of Canada, who authored the report of the Royal Commission on Equality in Employment in 1984, will be delivering the Koskie Minsky Lecture on Labour Law on Friday, 30 October, reflecting on employment equity and the impact of her report. A reception and dinner will follow.

 

The following day, Heenan Blaikie and Western Law are co-sponsoring the labour law conference, which will continue the assessment of how well employment equity has fared in Canada.  The conference will host four panels of legal and industrial relations scholars, lawyers, and policy advisors who will critically examine the successes and shortcomings of employment equity, both here in Canada and abroad."

 

 

Have a look at the Conference brochure for further details and how to register.

 

The Conference will be of interest to academics, lawyers, union officials, industrial relations managers, policy advisors and consultants, human rights specialists, law students, industrial relations students and anyone with an interest in contemporary workplace issues.

Fact versus fear: how employers should respond to H1N1 in the workplace to avoid human rights violations

Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu.  The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service.  The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission.  Time will tell how this case ultimately resolves itself.

While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace.  I thought it might be useful here to let you know what I said and expand upon my comments a bit further:

What is H1N1?

Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu").  This virus can, however, make people sick as well.   It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.

How do I deal with H1N1?

1.    Operate based on Fact versus Fear

When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear.  This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical.  The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law. 

In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak.  Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.

 

2.    Assume that H1N1 constitutes a disability under human rights legislation

Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability.  While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration.  H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light.  Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003. 

It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability.  A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness.  Consider, for example, the man who was barred from the restaurant.  He did not have H1N1, his wife did.  Yet, the restaurant seems to have treated him as though he had the disease.  The H1N1 label had an effect on him anyway.  A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.

In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis. 

3.    Uphold your human rights-related responsibilities to all employees impacted by H1N1

The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.  

Employers must ensure that their workplaces are free of discrimination and harassment.  This means that they need to:

a.    make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1.  In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions.  Here, you would want to follow the lead of public health officials and medical professionals;

b.    make sure that you take appropriate steps to accommodate employees who are disabled by H1N1.  What type of accommodation will be reasonable will depend on the circumstances.  It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;

c.    make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same.  People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness.  This can result in harsh treatment of their colleagues.  Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior. 

Conclusion

While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last.  I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.

Photo credit:

2009-2010 Manitoba Human Rights Commission Course List

The course list for the 2009-2010 'training season' at the Manitoba Human Rights Commission has just been finalized.  As usual, there is a terrific line-up of courses that you can take taught by Commission staff, the Commission's legal counsel and, yours truly.  On tap this year for me are my usual courses on "How to Investigate a Human Rights Complaint" and "Reasonable Accommodation in the Workplace."  These courses fill up fast so if you haven't had a chance to attend yet, I'd encourage you to call the Commission as soon as you can to sign up.  Download Education brochure 2009 2010.

For those of you who have been asking about other courses I might be teaching at the Commission I'm happy to announce that I've spent my summer putting together a brand new course that I think will be a great addition to the Commission's current line-up.  Called "Workplace Human Rights Complaints: myths, fears & realities", I'm going to be covering a whole range of common topics that I come across in the work I do on a daily basis and which I find that human resource specialists, managers and employers struggle regularly with.  My goal is to dispel the myths and fears associated with workplace human rights complaints, and let you in on the real truths.  Here's what we'll be discussing:

• legal liabilities of employers for human rights-related misconduct in the workplace
• ways in which a human rights complaint can come to your attention in the workplace (some obvious, some not so!)
• what to do if you become aware of what you think is a human rights complaint (learn what you need to do to help prevent legal liability)
• how to decide whether a human rights complaint needs to be investigated (the questions you need to ask yourself before jumping head-first into or avoiding an investigation)
• essential elements of a good investigation
• liability issues relating to the poor handling of investigations
• the top 8 fatal mistakes employers make when faced with a workplace human rights complaint
• what to expect when the Human Rights Commission gets involved (what really happens)
• my top 5 tips for dealing with the Commission.

The course has been structured to be an open dialogue with quick quizzes and test-your-knowledge scenarios to ensure you leave with a solid understanding of the material.  I'll also save time for those "I've always wanted to ask this about the Commission but didn't know who to ask" questions that may have been plaguing you for years!  I hope you join me as I embark on this new course.  I'm only teaching it three times this session so if you're interested, please contact the Commission and sign up soon.

I know there are those of you who live outside of Manitoba or you otherwise can't make it to my courses but have been asking for access to my materials anyway.  Please note that I am currently working at getting my content together to start making my courses available online.  I'm still in the early stages of development but will keep you updated so you know when this becomes reality. 

 

Twitter Talk - August 24, 2009

I'm thankful I was able to get out with my family yesterday and enjoy our one whole day of summer yesterday!  (We almost didn't recognize the blue sky and sun when it showed up in the morning).  Today, we got hit by a thunderstorm which had me wondering if we were going to leave the house at all!  Guess I should be thankful we have a roof over our heads in order to continually duck this lousy weather.

Anyway, amidst the weather wranglings, there has been a lot of interesting discussion on Twitter during the past week covering everything from enhancing workplace diversity, to how workplace sexual harassment is morphing with the new technologies and even to how those new technologies are impacting employer behaviors.  You'll also see a link to a great video that shows how a person who is blind navigates the internet on his computer.  Happy reading/viewing!

Alberta companies enhancing diversity of their workforces esp in male dominated fields http://chilp.it/?1dec50

Thoughts? Are women penalized in the wkpl if also a mom? http://chilp.it/?06be8e

The 'new' sexual harassment is less in-your-face than in the past but still a big problem. http://chilp.it/?a0fb02

RT @jonhyman: New blog post: Papering a personnel file as evidence of retaliation? http://bit.ly/Ijhgs

Just the beginning...RT @RossRunkel: 7 percent of hiring managers look at applicants' Twitter posts http://tinyurl.com/kkk9jr (@djillpugh)

RT @GlendaWH: Have you ever wondered how a blind person uses a computer? Here's a great video http://bit.ly/uuFC4

 

Interview: Impact of Ontario accessibility standards on delivery of training in the workplace

I recently had the opportunity to be interviewed for the July 2009 issue of the OHSCompliance and EHSjustice newsletter (a Canadian publication addressing Environmental, Health and Safety News and Legislation which you can find at www.ecolog.com).  The focus of the article was on how the standards currently being developed pursuant to the Accessibility for Ontarians with Disabilities Act, 2005 might impact how employers and safety training agencies in Ontario deliver training and/or provide safety information in the workplace.  (You can find out more information about the legislation by viewing the Accessibility for Ontarians with Disabilities website).  As I thought readers of this blog may well have an interest in what was discussed in the article, I was kindly provided with permission from EcoLog Information Resources Group, a division of Business Information Group and publisher of EHScompliance.ca newsletter to reproduce the piece below.  Please note that the article cannot be reproduced, reprinted, republised or reposted anywhere else without the written permission of the original publisher.

OHScompliance and EHSjustice -July 2009

Accessibility standard may affect how training, safety info delivered in Ont

by Mark Sabourin

Across the country, advocates for persons with disabilities are watching with interest as Ontario develops standards under the Accessibility for Ontarians with Disabilities Act,2005 (AODA). A standard for customer service came into force on January 1, 2008, and four others are under development: transportation; built environment; information and communications; and employment.

Public sector organizations must comply with the customer service standard by January 1, 2010, while private sector and non-profit organizations must comply with the standard by January 1, 2012.

The four remaining standards are expected to be finalized in the coming months.

Ontario’s employers and safety training agencies haven’t been paying much attention to the process so far, and very likely they should have. The information and communications standard, for one, will require that information about “workplace health and safety procedures and systems” be made available to employees with disabilities in “accessible alternate [sic] formats and communication supports.” The employment standard specifically references WHMIS (workplace hazardous materials information system) material, among others, which must be made compliant with the information and communications standard.

Even staunch advocates of the standards are quick to explain that this does not mean that all MSDSs (material safety data sheets) will have to be rendered in Braille. But the information and communications standard, if adopted (and it has passed all phases of public review), may significantly affect how training is delivered and how safety information is communicated.

In addition to disabilities that are perhaps more familiar to employers, such as mobility, hearing or visual impairments, the AODA includes learning disability. That covers between 4% and 6% of Ontario’s population, says Diane Wagner, coordinator, Public Policy and Client Services with the Learning Disabilities Association of Ontario (LDAO). Wagner served on the information and communications standard committee, and the LDAO was also represented on the employment standard committee.

Really, it shouldn’t come as a surprise. The current Ontario Human Rights Code prohibits discrimination in employment “because of handicap,” which includes learning disability.  The Ontario Human Rights Commission has a long list of policies, supported by case law, around the doctrine of reasonable accommodation. There is no easy definition, but if a worker’s disability can be accommodated without undue hardship or compromise to safety, then it must be.

Donna Seale, Manitoba human rights lawyer and educator, says it has long been the case that workplace materials should be made available in formats suitable for the disabled, including the learning-disabled. Most employers get the concept of reasonable accommodation, says Seale. Translating that into action is sometimes problematic, and that’s where standards like this one step in. They tell employers and training agencies what they should do.

Acceptable alternative communication formats for persons with disabilities are listed in an appendix to the information and communications standard. Formats include Braille, e-text, audio, video, captioned video, sign language and many others. These are the provisions that have provoked fear or ridicule from critics, but supporters say these concerns are unfounded.

“A big misconception is that everything has to be ready all at once, up front,” says Diane Wagner, “that you have to convert everything into Braille, everything into every format.”  That’s not the case. Employers will have to determine first if they need to convert information, what information needs to be converted, and what format is most appropriate.

Two workers of the same age and background, with identical disabilities, will not have the same accommodation needs, says Bob Santos, CEO of Link Up Employment Services for Persons with Disabilities, headquartered in Toronto. Quite likely, the degree of accommodation required will be far less than the employer initially suspected. 

Safety is a legitimate exception to reasonable accommodation. The communications standard won’t require employers to offer forklift training to blind workers. But employers will not be permitted to deny an opportunity to an employee solely on the argument that a learning disability prevents effective communication of safety information, says Diane Wagner. If an employer plans to make that argument, the employer had better be prepared to prove that considerable efforts were made to accommodate the worker, and that those efforts failed.

“You can’t say, ‘he can’t read the health and safety manual so he can’t get the job,’” says Wagner.

What the standard should do is compel employers and training delivery agencies to review how they deliver safety training in order to make it more broadly accessible, says Bob Santos. His organization delivers a program called SafeAbility, which offers safety training geared to the needs of persons with disabilities. It also offers a “train the trainer” program for employers and agencies that will be delivering services to workers with disabilities.

It is not a burdensome process, Santos assures. It requires a shift in thinking by the persons delivering the training or communicating the information, and more careful scrutiny of the media that carry the information. “It is simple enough and straightforward enough to be implemented in any place of employment, any community, anywhere in the world.” It is more expensive, he says, but not much more, and certainly not enough to bar its introduction where needed.

Cost alone is seldom a sufficient argument against reasonable accommodation, says Donna Seale. To prevail, the cost would have to threaten the viability of the business, she says.

It’s quite possible that there are more learning-disabled people in the workforce than employers suspect. Margaret Eaton, president of the literacy organization ABC Canada, says learning disability often manifests as poor literacy, and those workers have naturally gravitated toward the manufacturing and resource sectors, where literacy skills are not in as high demand. The shame felt by poorly-literate workers often leads them to conceal their status, she says.

But the decline in the manufacturing sector, coupled with greater recognition of learning disability in the education systems, means that more and more learning-disabled workers will be seeking employment in positions they can safely perform, provided training and safety information is delivered to them in a format other than a hard-copy manual.

“[Learning-disabled] students that are coming up through the school system are used to using assistive technologies,” says Diane Wagner, referring to some of the accommodations referenced in the information and communications standard. Margaret Eaton says the previous generation of workers would have been reluctant to declare a learning disability and ask for accommodation. For the generation entering the workforce, it will be the norm.

Often, says Donna Seale, employers look at accommodation as “something they have to endure,” when in fact the changes end up benefiting everyone in the workplace, not just those to whom they were initially directed. Ours is an aging workforce, she says.  Accommodations made for visually impaired workers or learning-disabled workers may also prove to be great benefits to older workers or others, she says.

Bob Santos likes to cite the example of the automated door-opening device found in contemporary buildings. It’s activated by a push-button identified by a universal logo of a person in a wheelchair, but it is far more often used by able-bodied people, he says. The same should happen with training, as sensitivity to the needs of persons with a wide range of disabilities may improve the standard of training delivery for everyone.

On "boobie girls", retaliation and bad decisions

Having moved to a new house and home office and having 'sort of' settled, I'm back to thinking about blogging again.  First on my list was to tackle a decision that was kindly brought to my attention some time ago now by David Doorey over at Doorey's Workplace Law Blog.   It's a decision that I think is worthy of talking about here because it illustrates how even human rights adjudicators can make things more complicated than they need to be.  And that, unfortunately, just makes it more challenging for employers to figure out how to handle similar situations.

THE FACTS

Schmor v. Stonechurch Vineyards Inc. involves a female employee who alleged sexual harassment by another female employee and reprisal by her employer.  Michele Schmor worked for Stonechurch Vineyards for a period of 4 months.  She was hired on an as-neeeded basis but not on a fixed term. During that time, she alleged that Lisa Edlington, a co-worker and Director of Events for the company in question, called her  "boobie girl" on four or five occasions in November 2006 in front of other employees and customers.  The "boobie girl" reference stemmed from Schmor's disclosure to Edlington that she had sunbathed topless while on vacation (Edlington had queried whether she had sunbathed sans suit).  Schmor found the comment to be embarassing and uncomfortable.  Schmor further contended that on one occasion in December 2006, Edlington asked her to climb up a pole in front of the workplace to fix a sign and then "slide down like a stripper."  Edlington also asked Schmor if she was wearing underwear.  Schmor found these comments offensive. 

At no time did Schmor raise a concern about Edlington's comments to Edlington directly or to anyone in management, feeling that Edlington had a close relationship with the company's president and so she had no one to go to.  She did, however, discuss the comments with some co-workers.  In mid-November, 2006, one of the co-workers spoke to the winery's owner about concerns she had with Edlington, including reference to the "boobie girl" comment.  Evidence at the hearing showed that there was no indication the co-worker was speaking on behalf of Schmor or at Schmor's urging when she spoke to the owner.  The co-worker, who had worked full-time for the winery for more than seven years was told to start looking for another job and was fired days later.  Schmor continued working through December and January but by the end of January, her shifts were eliminated.  On the other hand, the winery was hiring new employees to work in the store.  Schmor subsequently exchanged e-mails with the company's president only to be told that she was not going to be called back, could pick up her record of employment and that he was not required to give her a reason for why she was not being retained.    Schmor contended that her employer treated her in this manner because the company had found out about her concerns regarding Edlington's comments.

The company took the position that it had no idea Schmor was offended by any of Edlington's comments.  In relation to her retaliation contention, the company argued that Schmor had only been hired as a temporary worker for the fall of 2006.  The employer admitted that Edlington's daughter had been hired in early 2007 and did not deny that staff numbers had been expanded generally.  Regarding the co-worker's firing, the company's president did not deny that she had been told to start looking for a job after complaining, in part, about the "boobie girl" comment but said that she was just being given fair warning about the company's need to trim staff.

THE DECISION

The adjudicator concluded that Edlington had made the remarks alleged by Schmor (Edlington was no longer employed by the company at the time of the hearing and did not attend to defend herself) given two other employees testified they had heard them.  The adjudicator believed that Schmor was offended and embarrassed by the comments, particularly those made in front of customers and other employees.  But, he ultimately determined that the remarks did not constitute sexual harassment under Ontario's Human Rights Code.  And this is where the adjudicator starts to lose me.

He points out that the Code defines harassment as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome."  [Just as a side note here, "vexatious" is essentially another word used in the harassment context to mean "unwelcome."  In other words, a person finds another's comments or conduct to be demeaning, insulting or to cause discomfort].   The adjudicator goes on to conclude that:

1. although Schmor never informed Edlington about her concern with the "boobie girl" comment, it was something that Edlington ought to have known was unwelcome to Schmor because it was stated in front of customers;
2. there was no basis to conclude that Edlington ought to have known the "stripper pole" comment was unwelcome to Schmor since Schmor said nothing about it;
3. given the overall context, while at least the "boobie girl" comment could be seen to be insulting and ought to have known by Edlington to be insulting to Schmor, that did not transform the comments into sexual harassment because:

"...while the remarks may refer to body parts and activities that in other contexts have sexual connotations, there is no suggestion that Ms. Edlington was making any sexual requests or suggestions.  In fact, the evidence is that the "boobie girl" comment began as part of a friendly and innocent conversation about sunbathing.  It was not a conversation about sex or a conversation that was related to either party's sexual interests."

Although concluding that the comments did not constitute sexual harassment, the adjudicator did find that reprisal had occurred because Schmor was sincerely offended by Edlington's comments and believed them to be a human rights issue and since the company had no reasonable explanation for terminating her employment.  The adjudicator was of the view that Schmor's days were numbered once the company's management knew, through her co-worker (who also lost her job) was offended by Edlington's comments. 

In the end, Schmor was awarded $2,340 in lost wages and $2,000 in general damages for the reprisal.

PROBLEMS WITH THE DECISION

Had the adjudicator concluded that Edlington's comments were inappropriate but not of sufficient frequency and severity to create a work environment that undermined Schmor's dignity, I might not have paid much attention to this decision.  (I'm not, of course, saying I would have decided the case that way!)  But, what caused me to pause was the feeling that for some reason the fact two women were involved here played a role in the adjudicator's reasoning, causing an unnecessary muddying of the waters.  The focus here should be on whether the comments or jokes were directed at Schmor,  inappropriately based on her sex and unwelcome.  Why did there have to be an underlying tone to them that suggested Edlington had a sexual interest in her female co-worker?  That's certainly not a requirement in situations involving male to female harassment.  And, the section of the Ontario Code that deals with sexual solicitations or advances relates to persons in the workplace who are in a position of power.  So, my supervisor can't, for example, say he'll give me a raise if I "scratch his back".  But, although Edlington is identified in the decision as Director of Events, there is no other discussion of her role in the workplace to suggest she was in a position of power (another thing I would have liked to see explored more thoroughly).  As a result, there was no need to examine whether Schmor's co-worker had a sexual interest in her in order to conclude harassment on the basis of sex was a possibility.  It's unfortunate, in my view, that the adjudicator here seems to have imported these additional requirements in a situation involving alleged female to female harassment.

I also have difficulty with the adjudicator's view that Edlington ought to have known the "boobie girl" comment was unwelcome to Schmor because third parties -- customers -- were involved.   While making the comment in front of customers certainly exacerbated the impact of those comments on Schmor, why would the comments be any more welcome if only said in front of other employees or just Schmor herself?  And, why did the adjudicator discount the fact that Schmor began keeping her distance from Edlington after the "boobie girl" comment was made?  Why was that not a sufficient sign of unwelcomeness?  Now, I'm perfectly aware that not every detail of a hearing lands in the written reasons for decision but I just find that this case raises a lot more questions for me than it answers.

As for the conclusion on the reprisal, I have less of a problem with it but think that this decision imports a new twist in the law on reprisal than existed previously.  The reprisal section in Ontario's legislation that applies to this case is section 8.  That section would, for example, prohibit an employer from taking retaliatory action against any employee who "has a right to claim and enforce his or her rights" or "to institute and participate in proceedings" under Ontario's Code.  In the usual situation, you have an employee who has made objection to behaviour in the workplace (either verbally or otherwise) or who has proceeded to contact the local human rights commission or who even files a complaint.  In response, employer retaliates by disciplining or firing the employee (or threatening to).  So, there is an established connection between the employee exercising his or her rights under the Code and the employer's negative reaction to the employee.  In this situation, Schmor never vocalized her concerns about Edlington's comments either to Edlington or her superiors.  Moreover, Schmor never asked the co-worker who eventually did complain about the "boobie girl" comment to company management to speak to management on her behalf.  In addition, prior to losing her job Schmor had not taken any action under the Code against her employer.  In effect, then, the adjudicator determined that the employee who was subjected to the inappropriate comments needed only to show she had a right to make a claim under the Code but did not have to be the one to take specific steps to enforce her rights under the Code for the reprisal section to be triggered when management ultimately decided to let her go.  

WHAT TO TAKE FROM THIS CASE:

My general view about the Schmor decision is that employers should to be careful about placing too much emphasis on what the adjudicator said needed to be shown for harassment to be found under these circumstances.  Instead, keep in mind the tried and true principles noted below.  Time will tell how other adjudicators respond to what was said in Schmor and I'd recommend a wait-and-see approach on that front.  Also, make sure you understand the law on reprisal.  Here are my specific thoughts on what to take from this case:

1.     Avoid adopting narrow definitions of sexual harassment or harassment based on sex in your workplace.  Remember that harassment on the basis of sex is not necessarily sexual in nature.  In other words, comments made about a person because they are a woman but which do not have as their basis a sexual solicitation or advance can still be found to be harassment under human rights legislation.  (Repeatedly calling a woman a "fat cow" isn't sexual but sure as heck could still be sex harassment).  And, don't get confused just because the people involved happen to be of the same sex.  Comments that are made between people of the same sex do not require a sexual component to them for sexual harassment to be found.  If inappropriate comments are being made and they are rude, crude and connected to a person's sex, put a stop to them.  They have no place in the workplace.

2.    Remember that reprisal is a separate and distinct form of discrimination under human rights law.  This means that even if a complainant fails in their main complaint to a human rights commission (such as was the case here), an employer can still be found liable for retaliating against them for personally exercising their human rights or, as in this case, if someone else exercises those rights for them.  What the adjudicator got right here is the notion that human rights statutes are intended to protect everyone who chooses to exercise their rights.  And, the reference here is to the right to complain.  Not the right to make a successful complaint. 

3.    If you find out about conduct in the workplace that even has a sniff of a human rights-related component to it, do not take adverse action against any employee who is complaining or may complain about that conduct unless you are prepared to prove that there is absolutely no connection between the action you take against that employee and the human rights issue.  And, in terms of proof you want it to be clear and convincing so that no argument can be made that the human rights issue played any role in your decision (to terminate, discipline, give a bad performance appraisal, etc.).  That's where the company here went wrong.  It was a bad decision on the employer's part to fire Schmor without the ability to show no retaliation connection.  That left the adjudicator an opening to infer a connection, find liability and render a damage award.  Often, it is a far better approach to put the adverse action on hold until the human rights issue is resolved one way or the other and you can get your ducks-in-a-row to prove no reprisal.

 

 

 

 

 

Twitter Talk column launch

As I have mentioned here before, in addition to blogging I am also on Twitter.  The stuff I often talk about on Twitter is related to the work I do but isn't necessarily worthy of a full blog post.  On the other hand, I also mention my blog posts on Twitter.  This got me thinking the other day that the people who follow me on Twitter are getting "more for their money" than my blog readers (many of whom are not among my Twitter followers).  And so, dear readers, to keep you in the loop, I've decided to borrow a page from Dan Michaluk's All About Information Blog and create a regular column devoted to updating you on what I'm talking about on Twitter.  Lacking creativity today (heavy sigh), I'm calling this column "Twitter Talk".

Here's a sampling from the past few weeks (for those of who are uninitiated to Twitter lingo, RT is short form for "retweet" meaning that I am repeating or quoting someone else's original post or tweet.  Also to note, if you click on the hyperlink mentioned in the tweets, you will be taken to the original article I was referencing):

Choosing your words carefully can truly make a difference (from @Disaboom) http://is.gd/IfXz #disability

Reading - RT @nationalpost: Kevin Libin: Alberta opts for hillbilly human rights http://tinyurl.com/qr472z

RT @KulpreetSingh: I would rather s/one BLUNTLY ask me about my faith/identity, rather than NOT ask me, hold on to misconcep'ns/stereotypes

RT @CanadianHRLaw: RT @EmploymentLaw: Assessing witness credibility in workplace investigations http://tinyurl.com/r29dnq

Women's careers still impacted by assumptions made, whether they have children...or not. http://chilp.it/?06ec4c

 

Happy reading!

Having a process AND following it key to meeting duty to accommodate

In the course I teach for the Manitoba Human Rights Commission on "The Duty to Accommodate in the Workplace", I spend a good chunk of time talking about how important it is for employers to implement a policy/process in their workplaces establishing how they will respond to requests for accommodation by employees.  In particular, I talk about how critical it is for employers to be able to demonstrate, at the end of the day, that they have thoroughly examined and considered all of the possible ways that they can provide accommodation for an employee before they even think about jumping on the 'sorry we can't do this' band wagon.  In addition, I stress how critical it is for employers to understand that their duty to accommodate is separate and distinct from any determinations made about the employee by a third party such as an insurance provider.

The fact is, if you do not have a process in place to reasonably assess accommodation requests, you will not successfully defend against a human rights complaint alleging a failure of the duty to accommodate.  Same goes if you have a process in place and then choose, for whatever reason, not to follow it.  Ditto if you choose to simply follow on the coat tails of a third party payer to decide how you should go about accommodating your employee.  Unfortunately, there are still a lot of employers out there who are not getting these messages.  Case in point, Jodoin v. City of Calgary, a November 2008 decision of the Human Rights Panel of Alberta. 

The facts in brief

Mr. Jodoin began working for the City of Calgary in 1999.  In September 2002, while he was working in the waste and recycling department as a driver/labourer, he injured his lower back.  He subsequently made a successful claim for workers' compensation benefits.  From September 2002 to February 2003, Mr. Jodoin underwent a number of medical tests and was determined by his physician to be unfit for work during this time.  In early February 2003, he underwent spinal decompression surgery.  It wasn't until June 2003 that Mr. Jodoin's doctor recommended a gradual return-to-work.  His return was not successful, though, as the job he was placed in was too strenuous.  He went off work again to undergo further testing and obtain an accurate assessment of the impact of his disability. 

In March 2004, it was determined that Mr. Jodoin's condition was such that he would only be able to do sedentary work in the future.  One of Mr. Jodoin's specialists sent the City a list of Mr. Jodoin's work restrictions and asked for the City to determine whether it could accommodate him in a permanently modified or other suitable alternate position.

The City began using the work restrictions identified by Mr. Jodoin's doctor in order to attempt to find long term accommodation for him.  In the meantime, the Worker's Compensation Board, which was also involved, determined that it was not satisfied that Mr. Jodoin could only do sedentary work and, instead, came to the conclusion that he ought to be able to perform work that simply did not require heavy lifting.  As a result of the WCB re-assessment of Mr. Jodoin's work abilities, the City changed his restrictions from sedentary to medium-type work.  The City sent out some e-mails to supervisors in Mr. Jodoin's department and to human resources and return-to-work coordinators requesting accommodation for him.  No potential jobs were uncovered.

WCB subsequently determined that Mr. Jodoin was not participating sufficiently in their job search program and, as a result, terminated his re-employment assistance benefits.  The City then sent him a letter indicating that his benefits had been terminated by WCB for failing to cooperate in the rehabilitative process.   The City further advised Mr. Jodoin that they were prepared to grant him an unpaid leave of absence for 30 days to rectify the situation with WCB.  Mr. Jodoin was instructed to complete a leave of absence form and return it within 7 days.  The City's letter went on to say that if Mr. Jodoin failed to return the form or be reinstated by WCB his employment would be terminated.

Although Mr. Jodoin asserted that he cooperated to the best of his abilities with WCB and he wrote a letter to the City setting this out, he received no response.  Mr. Jodoin did not sign the leave of absence form, believing that he was being "pushed out the door because he was sick."  The City subsequently wrote to Mr. Jodoin in July of 2004 advising him that they considered him to have "voluntarily resigned."

Decision

The Alberta Human Rights Panel determined that Mr. Jodoin did have a physical disability as defined by the Alberta human rights legislation and that the City was well aware of his disability. 

The City accepted that it had a duty to accommodate Mr. Jodoin but argued that it had provided that accommodation by making available to him four "safety nets" (Workers' Compensation Benefits, Long Term Disability, Supplementation of Compensation under the collective agreement, and the possibility of a Leave of Absence).  The Panel rejected this argument, pointing out that the availability of these types of benefits to employees did not necessarily bear on whether the employer had met its duty to accommodate. 

Contrary to the employer's contention, the Panel concluded that the City failed to make reasonable efforts to accommodate their employee for the following reasons:

1. Without consulting with Mr. Jodoin's doctors, the City accepted the WCB's assessment of Mr. Jodoin's work abilities.  The WCB assessment that Mr. Jodoin could perform work at a 'medium level' was diametrically opposed to the medical assessment that he could only perform sedentary work.  The Panel found that by accepting the WCB assessment and modifying Mr. Jodoin's work restrictions to reflect this acceptance, the City would have set him up for failure in any position that they might have found for him;
2. The City's search for permanent modified work for Mr. Jodoin was "limited and ineffective" because:

• the City sent e-mails on two occasions requesting possible accommodations to Mr. Jodoin's     current     department (Waste & Recycling), even though the City's representative indicated she seriously doubted his ability to return to work in that department;  
• with one exception, no record was kept of the positions that the City had actually considered and ultimately rejected as possible accommodations for Mr. Jodoin;
• the City's policy and procedural guidelines indicated that union involvement was required anytime an accommodation might engage the collective agreement.  Although the collective agreement was arguably engaged here, the union had never been approached by the employer.  While the City argued that Mr. Jodoin indicated he had no use for the union, the Panel pointed out that this had little relevance to the employer's responsibility to involve the union pursuant to its own process;
• the City's procedural guidelines mandated an open communication process.  However, the City was unable to show that it maintained regular contact or any semblance of open communication with Mr. Jodoin;
• the City's guidelines provided two checklists to assist in the accommodation process but the City's representative stated she followed the process "in her head" rather than either of the checklists as it would be too time consuming to complete the checklists on all of her files;
• all possible accommodations had not been pursued.  The City could not show that their search for modified work for Mr. Jodoin had been extended to City departments outside of Mr. Jodoin's union or corporate wide.

3.    Even though Mr. Jodoin was medically capable of working in a sedentary position, he was never given the option by the City of returning to work when WCB suspended his benefits.  Instead, he was offered a Leave of Absence to enable him to appeal that decision.  The Panel also pointed out that this "option" was given to Mr. Jodoin with no explanation and without advising him that they were not searching for a sedentary position for him;

4.    At no time did the City actually inform Mr. Jodoin that they could not find appropriate accommodation for his disability.  Instead, they threatened to terminate him if his WCB benefits were not reinstated of if he did not sign the Leave of Absence form.  The Panel stressed that because this was such a complicated employment situation, the City had a responsibility to meet with Mr. Jodoin and explain his options and any consequences associated with not signing the form, something it failed to do;

Finally, the Panel concluded that the CIty provided no evidence that it would have suffered undue hardship by continuing to employ Mr. Jodoin in a sedentary position.

Remedy

Finding that the City of Calgary failed to meet its duty to accommodate Mr. Jodoin, the Panel ordered that the City pay to him $5,000.00 in general damages and lost wages in the amount of $17,307.69 (less statutory deductions) plus interest.

What to take from this case:

• I'll end this post the same way I started it -- having a process and following it is absolutely essential if you, as an employer, hope to avoid liability in relation to the duty to accommodate; 
• Follow that process in each and every instance you are faced with needing to accommodate the human rights-protected needs of your employees; and
• Complete your process.  Do not stop looking for accommodation if WCB or another insurer or third party payer decides to terminate any benefits your employee might have been receiving relating to the accommodation need.  An employer's duty to accommodate operates independently and you'll be the one on the hook, not the insurer, if you choose to short-circuit that policy without appropriate justification.

  

 

Ontario Human Rights Commission updates Policy on Discrimination due to Pregnancy & Breastfeeding

The Ontario Human Rights Commission has released an update of its Policy on Discrimination Because of Pregnancy and Breastfeeding.  The update incorporates, among other things, new legal cases relating to pregnancy and pregnancy-related discrimination in employment, services and housing.  You'll see from the Table of Contents, that the Policy covers a lot of ground, including:

• Code Protections for Pregnancy and Breastfeeding
• Pregnancy and Intersecting Grounds under the Code (describes how a woman may experience discrimination due to pregnancy differently based on other aspects of her identity such as her age or ethnicity);
• Pregnancy and Family Status
• Pregnancy and Domestic Abuse
• Examples of Discrimination based on pregnancy and breastfeeding such as:
  • discrimination based on negative attitudes and stereotypes;
  • subtle discrimination;
  • harassment or poisoned environments;
  • systemic discrimination;
  • failure to accommodate
• Employment and Pregnancy
  • Pregnancy and pregnancy-related legislation and protections beyond the Human Rights Code;
  • Discrimination in hiring, promotions, transfers and terminations
  • The Duty to accommodate pregnancy and pregnancy-related characteristics

Although this is an Ontario-based policy, the concepts discussed have universal application.  As a result, I'd consider it recommended reading for all Canadian employers.