Human Rights in the Workplace

Age-based comments have negative impact on workplace

Aging Workforce News reports on research out of the US that shows ageist language in the workplace can have a dramatic negative impact on the health and well-being of older workers.   Given the demographic shift that workplaces are beginning to experience, employers who will need to consider retaining the more 'senior members' of their workplaces well past the usual retirement age may want to keep this research in mind.  Putting a quick halt to the use of age-based discriminatory language in the workplace will assist in ensuring a positive work environment that could help encourage older workers to stay. 

Human Rights Campaign releases workplace guide on transgender inclusion

As noted at HRC Back Story, the Human Rights Campaign (the largest gay, lesbian, bisexual and transgender civil rights organization in the United States) has released the second edition of its report entitled Transgender Inclusion in the Workplace.  From the Human Right's Campaign's website comes a description of the report:

"Transgender Inclusion in the Workplace" provides human resource and other employment professionals with best practices for transgender workplace inclusion—from discrimination and benefits policies to internal practices that reflect how gender is expressed and integrated in the workplace—as well as the state of legal issues encompassing gender identity in employment situations. The guide also covers topics such as appropriate terminology with which to discuss gender identity and expression, the creation of policies that protect transgender workers from discrimination, and the expansion of diversity programs to include gender identity and expression."

Although a US-based publication, the report may be useful for Canadian employers as I have yet to see something similar published here. 

Check out Blawg Review #157

Michael Fitzgibbon over at his blog Thoughts from a Management Lawyer put together Blawg Review #157 today, a compendium of interesting posts from labour and employment law blogs in the US and Canada.  I always marvel at bloggers who take on the task of doing a Blawg Review and I always learn something new or discover a blog I had never encountered before.  Michael's post doesn't disappoint so I recommend you have a look.  In his review, he also kindly referenced my recent commentary on the US Senate's adoption of a ban on genetic discrimination (although I have to gently point out he noted my last name to be Searle instead of Seale -- but with the level of detail he had to digest and set out in his post it's no wonder an extra little letter slipped in!).

US Senate says 'no' to genetic discrimination

The US senate made it illegal today for employers to request or use a person's genetic information for the purpose of hirings, promotions, assignments or firings.  The hope is that this move will serve to eliminate the fear that has raged for a number of years now in the States that employers could use a person's genetic history to discriminate against them in the workplace.  I've been watching this issue with great interest for years to see whether the bill that had been proposed would ever become law.  It seemed very "sci-fi" and disturbing to think that you could suffer discrimination on the basis of a disability that might be present in your genes but had not yet manifested itself in present-day form.  Never mind the fact that no one would be safe from this kind of discrimination -- can you safely say you have 'perfect genes'?  I know I can't.   

The potential for the results of genetic testing to be used for discriminatory purposes in the workplace hasn't, as far as I'm aware, really been discussed much in Canada.  Who knows what, if any impact, this recent move by the US might have here.

Turfed RCMP cadet succeeds in discrimination complaint

As reported by a number of Canadian news outlets last week, the beleaguered RCMP are facing yet another enormous damage award after the Canadian Human Rights Tribunal concluded a former cadet had been subjected to discrimination and harassment during training.

Ali Tahmourpour is a Muslim Canadian who was born in Iran.  He commenced training with the RCMP in July 1999 and was dropped from the program four months later before his training was completed.  Mr. Tahmourpour alleged in his complaint that during training he faced systemic discrimination and incidents of harassment on the basis of race, religion and national or ethnic origin and he further alleged that his training contract was terminated for discriminatory reasons.  In particular, he contended that:

• he was subjected to discriminatory remarks, hostile treatment and verbal abuse by instructors at the training academy;
• his performance at the academy was improperly evaluated;
• his training contract was terminated based on false pretences;
• he was improperly designated as being ineligible for re-enrolment in the training program.

While the evidence that came out at the hearing did raise some questions about Mr. Tahmourpour's ultimate ability to do police work (concerns were raised as to his communication skills, judgment and ability to solve problems), the adjudicator concluded that his performance was more likely than not affected by discrimination and harassment.  She stated:

"...in a training environment where derogatory comments about race are condoned and directed at people like Mr. Tahmourpour, where evaluations are inaccurate and improper, and where instructors take pride in being 'politically incorrect', it is difficult for someone like Mr. Tahmourpour to develop and demonstrate his skills....I find it reasonable to infer that such conditions erode one's confidence and ability to perform well."

Further, the adjudicator concluded that the recommendation and decision to terminate Mr. Tahmourpour's contract were based on a discriminatory assessments of his skills.  Ultimately, as a result of her findings the adjudicator determined that Mr. Tahmourpour ought to be offered an opportunity to re-enrol in the next available RCMP cadet training program.

Factually, this isn't a terribly complicated case.   The damage award, however, is and provides yet another example of the escalating risk employers face if they permit discrimination and harassment to occur in the workplace.  Remember that Mr. Tahmourpour was removed from the training program in 1999 and so the damage award reflects a 9 year time span [although he filed his complaint in 2001, as a result of various appeals Mr. Tahmourpour's complaint was not actually heard by the Tribunal until late 2007).  Here, in addition to requiring the RCMP to permit the complainant to re-take his training, the adjudicator made the following orders:

• the RCMP are to pay the complainant:
  • compensation for salary and benefits he lost for the first 2 years plus 12 weeks of work as an RCMP officer after graduating from training, discounted by 8% (to reflect the attrition rate of cadets and regular members of the Force);
  • the difference between the average full-time industrial wage in Canada for persons his age, and the salary that he would have earned as an RCMP officer until such time as the complainant accepts or rejects an offer of re-enrolment in the training program;
  • the average amount of overtime paid to other constables who graduated from training in 1999, unless otherwise agreed upon by the parties, discounted by 8%;
  • compensation (incorporated in the above) that reflects a promotion to Corporal after 7 years (the average time it took a Constable to be promoted to that rank);
  • $9,000 for pain and suffering;
  • $12,000 in special compensation for the wilful and reckless discriminatory remarks to and harassment of the complainant by a particular Corporal at the training depot;
  • $9,500 for expenses incurred;
  • compensation for legal expenses incurred;
  • interest on all compensation awarded.
• the RCMP are also required to:
  • establish a policy and set of procedures to enable cadets to address harassment and discrimination at the training depot;
  • deliver mandatory diversity/cultural sensitivity training to cadets and all personnel at the training depot;
  • establish an advisory committee or multi-culturalism officer to make recommendations to the commanding officer at the depot with regard to the prevention of discrimination and promotion of respect and tolerance for diversity.

While there are conflicting media reports, it would appear that Mr. Tahmourpour's damage award may add up to the $500,000 mark and the addition of legal fees will take the total amount payable by the RCMP to upwards of $1 million.

Being a UFC fan (for those unaware that refers to the Ultimate Fighting Championship a mixed martial arts sport), I know that the fighters always want to win by submission or knock-out because otherwise they leave the fight in the hands of the judges and lose control of the outcome.  Well, that goes double for employers who fail to take control of discriminatory and harassing conduct in their workplaces.  Leave your workplace in the hands of a human rights adjudicator and you could be feeling a bit pummelled, like I'm sure the RCMP are feeling right now.

Further reading:

Ali Tahmourpour v. RCMP, 2008 CHRT 10 (65 pages)

"RCMP faces $1M payout on discrimination case", CBC

"Ex-RCMP cadet wins discrimination case", Globe and Mail

Tribunal topples company's attendance management program

A recent decision of the British Columbia Human Rights Tribunal (C.A.W., Local 111 v. Coast Mountain Bus Co. (No. 9)) has concluded that an Attendance Management Program ("AMP") operated by the Coast Mountain Bus Company (formerly BC Transit) was structured and applied in such a way that it discriminated against employees of the company who had chronic or recurring disabilities.

The Facts - In Brief

The AMP was adopted by the company in order to address concerns about high levels of absenteeism among its employees, particularly its transit operators.  The program involved monitoring the absenteeism of all employees and identifying those with higher than average levels of absenteeism.  The employees identified would be initiated into the program and moved through three levels.  At Level 3, attendance parameters would be imposed on the employee setting out a specified number of days and number of incidents of absenteeism per year over a period of time.  If the employee failed to meet those parameters, the company would then proceed to consider whether the employee should be terminated.

The Problems with the Program

The 150 page decision detailed a number of ways in which the AMP failed to appropriately acknowledge the disabilities of employees:

1. there was a lack of communication and coordination between the two departments set up by the company to administer the AMP including an overly rigid adherence to rules in the collective agreement relating to the confidentiality of employee medical information.  This resulted in decision-makers not having full medical information necessary to determine whether an employee's absenteeism was disability-related or to determine whether accommodation was appropriate before an employee was placed into the AMP or at the early stages of the AMP;
2. the company chose to process employees with attendance concerns through the AMP first and determine whether or if it could accommodate the employee after-the-fact.  When an employee reached Level 3, the average absenteeism rate of all other transit operators was used to establish the attendance parameters the employee had to meet.  There was no assessment conducted regarding what the parameters ought to be in light of an individual transit operator's disability;
3. when the company did consider whether an employee's disability-related absenteeism could be accommodated, it took too narrow a view of what its duty to accommodate entailed, focusing only on whether the employee could be moved into another job and, particularly, a job that had the potential to improve the employee's attendance.  At no time did the company consider whether a transit operator could be accommodated in his or her own position by permitting a relaxation of the attendance rules;
4. the company counted partial days that an employee was not able to work while on a rehabilitation assignment or a gradual return-to-work as an absence that factored into the assessment of whether the employee was brought into or advanced within the AMP.  This was found to be a discriminatory penalization of employees who were seeking accommodation.

Rejection of the Company's Defence of the Program

The Tribunal rejected the company's argument that the structure of the AMP and the manner in which it implemented the program was a bona fide occupational requirement.  Specifically, the Tribunal concluded that the company failed to establish that it was not possible to accommodate employees with chronic or recurring disabilities outside of or within the AMP short of undue hardship.  As the AMP was set up in such a way that accommodation of an employee was not considered, if at all, until after the employee had exceeded the average attendance standard imposed upon him or her, there being no accommodation within the standard itself, the Tribunal concluded that this was contrary to legal principles established by the Supreme Court of Canada.  Moreover, although the company led evidence of the substantial cost of employee absenteeism to its overall operations, it failed to lead evidence specifically showing that accommodating employees with chronic or recurring disabilities either before they were entered into the AMP or at an early stage of the program would create an undue hardship financially or otherwise.

In the final outcome, among other remedies, the Tribunal ordered the company to cease applying the AMP to transit operators whose attendance was affected by chronic or recurring disabilities.

What Does This Mean?

In my view, this decision represents the most comprehensive explanation to date as to how the duty to accommodate factors into each aspect of a system created to manage employee attendance.  Although the Tribunal recognized employers have a significant interest in implementing ways to manage costs, both financial and otherwise, associated with excessive absenteeism of their employees, it stressed that employers cannot pursue this interest at the expense of the rights of disabled persons under human rights legislation.  This decision spells out that it will be considered discrimination to process employees with disabilities that impact their attendance into an attendance management program without first determining whether they require accommodation and, if they do, what the accommodation options are.

Employers who currently have in place an attendance management program would be wise to review that program and ensure that:

• employees are not automatically placed into the program simply because they have exceeded some particular standard of attendance.  The underlying cause of the absenteeism must be examined first;
• in examining the underlying cause of an employee's absenteeism and before an employee is brought into the program appropriate medical information is available so that decision-makers may properly determine if an employee's absences might be disability-related and assess accommodation options if they are;
• in assessing accommodation options for employees with disability-related absences, the assessment extends to looking at attendance expectations in addition to whether their job requires modification.  If, as a result of disability, an employee will not be able to maintain regular attendance, employers must consider whether they can accommodate the rate of absenteeism that may be associated with the particular employee's disability.  In other words, can the employer modify what it considers acceptable attendance by, in effect, creating an attendance standard specific to the particular employee without incurring undue hardship?
• employees are not placed into the the program if the employer can accept (and therefore accommodate) the employee-specific attendance standard;
• partial days that an employee is not able to work while they are on a rehabilitation or gradual return-to-work assignment are not treated as an absence;
• anyone in the company who is involved in decision-making relating to attendance management receives appropriate training to understand what the duty to accommodate requires of them.

While attendance management programs, in principle, survived the BC Tribunal's scrutiny, serious questions have now been raised about whether employers will realistically be able to apply such programs to employees with recurrent or chronic disabilities. 

See also:"Rights tribunal puts the brakes to bus-driver attendance check" - The Province

Liability for sexual harassment can extend to behaviour by non-employees

Earlier this week I read a post over at Wise Law Blog by Annie Noa Kenet titled "UK Employers to Protect Against 3rd Party Sexual Harassment".  While I doubt it was her intention, after reading Ms. Kenet's post I was left with the impression that in making the observation that the UK was now taking specific steps to ensure that employers protected employees from sexual harassment by customers and clients she was suggesting that employers in Canada were not so obligated.  Although there isn't a flood of decisions to refer to in this area, courts and tribunals in Canada have considered claims of sexual harassment by non-employees and, in certain factual circumstances, have held employers liable.

Probably the most notable case is the 1993 decision of the Saskatchewan Court of Queen's Bench in Nixon v. Greensides (could not locate a public link).  In that case, the complainant was a waitress who worked at a bar that was attached to a restaurant.  The owner of the bar sublet the restaurant to a man by the name of Greg Duncalfe.  Duncalfe would often frequent the bar during the evenings and while doing so would sexually harass the female wait staff by grabbing and touching them.  The complainant complained to her employer, Stuart Greensides.  Although Greensides agreed to speak to Duncalfe about his behaviour, and apparently did so, that did not occur until almost two weeks after Greensides learned about the harassment.  Moreover, Duncalfe continued to harass the complainant and other female waitresses at the bar to the point that some of the wait staff went to the police and criminal charges were laid.  The Saskatchewan Board of Inquiry found Greensides liable for failing to effectively deal with the harassment.  Greensides then applied for judicial review of the decision to the Court of Queen's Bench.  In upholding the Board's decision regarding the employer's liability, the court made the following remarks:

"In this case, it is conceded that Duncalfe's conduct in respect of Nixon constituted sexual harassment.  The duty imposed on Greensides as the employer of Nixon is to take action to prevent further incidents of harassment once knowledge of the alleged harassment came to his attention."

In examining Greenside's response to the complaint of harassment, the court stated:

"...there is evidence to support the Board's finding that Greensides did not take action as soon as he became aware of the complaints from Nixon and some of his other female employees.  This finding is critical to liability being imposed on Greensides and is supported by the evidence.

....there was evidence which tended to show that the harassment did not end.  The Board could conclude from this evidence that Greensides' action was ineffective in solving the problem and that in the circumstances stronger action in the nature suggested by the Board was required."

The upshot of Nixon and the tribunal decisions that have followed it is that employers in Canada do have a duty to take prompt and effective corrective steps when an employee complains of, or the employer otherwise becomes aware of, sexual harassment by third parties who enter into the workplace.

See also:

Ontario Human Rights Commission Policy on Sexual Harassment : "Liability on the part of an organization for harassment of its employees by non-employees, such as customers, will depend on the facts of a particular situation, including the employer's knowledge of and control over the situation, and what corrective measures might be available."

Internet addiction: the discussion continues

In case you were holding your breath waiting for the next instalment of the discussion I've been having with Jon Hyman over at Ohio Employer's Law Blog, you can stop now as he has provided a further response.  While, in the end, I think he and I will generally have to agree to disagree on one main point (which I will talk about in a second), overall the "great divide" that seemed to exist between us when we first started chatting about Internet addiction as a potential disability triggering human rights protection has shrunk dramatically.  This shows the importance of discussion on accommodation of disability in the workplace and being open to the other side's views, a lesson for employers and employees alike.

So, going back to Jon's response, I generally agree with his first two points.  In relation to his first comment, there is nothing from a human rights law perspective preventing an employer from terminating an employee who has not disclosed a disability.  I would, however, add that an employee does not actually have to tell the employer with specific words that he has a disability to trigger an employer's duty to accommodate.  Particularly when we're dealing with mental illness which may prevent an employee from being aware of his or her disability, if an employer ought to have been aware by the employee's behaviour that they might be contending with a disability, then that will be enough to attribute knowledge of a disability and should give an employer pause before a decision is made to terminate.  In relation to his second comment, I completely agree that if an employee does disclose a disability and requests accommodation she is only entitled to what is reasonable in all of the circumstances.  In relation to his last point, Jon and I diverge, once again:

"In all likelihood, this interactive [accommodation] process will result in a dead-end for an employee who claims an Internet addiction.  While there is software and other techie solutions to block access to certain websites, those solutions are expensive, hard to implement, and will probably cause an undue hardship on the employer."

The thing is, I can only answer the question as to whether accommodating an employee who claims being addicted to the Internet would constitute an undue hardship in relation to an actual factual context.  I don't know enough about what might be required to accommodate an individual employee who asserts Internet addiction (if they can be accommodated at all) or whether the solutions are expensive or not, or hard to implement or not.  And that's the whole point I've been trying to make throughout these discussions.  You cannot discount accommodating an employee's disability (or a claimed disability) on the basis of subjective belief or speculation.  As an employer, you have to be prepared to engage in a process of determining whether accommodation of the employee is possible, and back up any decision to decline accommodation with actual evidence (see my post on what amounts to undue hardship in Canadian law for further clarification of this point).  Your mantra should always be "process plus proof, process plus proof".  If you can say that 10 times in a row and still be left holding the proof in your hands, your decision to terminate, if that is what you conclude, should make the passing grade before the human rights commission (and beyond).

My thanks to Jon Hyman for engaging in this dialogue.

Internet addiction - part two

Further to my post the other day on Internet addiction where I cautioned Canadian employers against proceeding with automatic termination of an employee who raises such an addiction, comes this response from Jon Hyman at Ohio Employer's Law Blog.  In essence, he states that in the US:

• if an employee raised Internet addiction in response to being told he was being terminated, the Americans with Disabilities Act (ADA) would not require an employer to refrain from termination and consider accommodation; and
• if an employee requested accommodation for Internet addiction before a decision to terminate was made the employer may have to consider accommodation but the employee would still have to perform the essential duties of his job.  If that employee's job required them to access the Internet and e-mail, it would seem difficult to imagine an accommodation that could be suitably crafted to address this kind of addiction.

I certainly don't take issue with Mr. Hyman's views on what the ADA may or may not require of employers in an Internet addiction scenario as he is doubtless more familiar with American human rights legislation than I am.  Our differing opinions are likely attributable to the different jurisdictions we practice law within.  That, of itself, is an important lesson for employers -- to always be aware of what human rights legislation applies in the jurisdiction you operate your business from and what it requires of you.

For my part, I maintain what I said in my previous post about what the law in Canada would likely require of employers who discover an Internet addicted employee in their midst.  If, upon termination for excessive non-work related computer use, an employee advises an employer they have an addiction to the Internet, a wise employer would, in my view, take a cautious approach to proceeding with that termination in light of this information.  Does this mean that an employer would be prevented from terminating?  Not necessarily.  But, going through the exercise of determining whether the employee has an actual disability and, if so, considering what might that require of the employer from the point of view of accommodation prior to making the final decision to terminate is an approach that has been mandated by Canadian courts, arbitrators and human rights commissions.  Ignoring reference to a potential disability at termination (or otherwise), is done at an employer's own risk of attracting human rights liability.  Does it matter that Internet addiction may be a "new" disability?  No, I don't think so, particularly since it is being likened to alcohol and drug addiction both of which are considered disabilities requiring accommodation in Canada.  I also think employers need to take care not to discount a claimed addiction or other disability because they do not think the addiction or disability are valid (look at what happened to Honda Canada when it questioned the validity of chronic fatigue syndrome).

As for Mr. Hyman's comments that even if an employer paused to consider accommodating an Internet addicted employee the employee would still have to perform the essential duties of the job, I completely agree.  Where we part company is on the approach to the actual question of accommodation.  While it may not be easy to think up possible ways an employer could accommodate an Internet addicted employee who needed to use the Internet and e-mail to do her job, the law in this country still requires an employer to engage in that process.  Failure to actually engage a process to consider what could be done to accommodate is, in and of itself, sufficient to trigger liability under Canadian human rights law even if no accommodation could ultimately be provided.  (Besides, aren't there blocking devices employers can use to block employee access to non-work related Internet sites? -- speaking from a real non-techie perspective -- but I digress).  In any event, accommodation is an individualized process and would have to be considered from the perspective of what would need to be done to accommodate the specific employee in question in their specific job in question, which may require a lot of an employer or, perhaps, not. 

So, the real message here?  Tread lightly whenever an employee raises a potential disability issue connected to their inability to do their job because whatever actions you take after being advised of the potential disability (whether it is Internet addiction or something else) may be considered discriminatory. Forewarned is forearmed.

Internet addicts: the next wave in accommodation claims?

In an article for the American Journal of Psychiatry titled "Issues for DSM V: Internet Addiction", Dr. Jerald Block posits that internet addiction should be included in the update to the Diagnostic and Statistical Manual of Mental Disorders (DSM).  He describes internet addiction as a "compulsive-impulsive spectrum disorder that involves online and/or offline computer usage" and which involves four specific components:

1. excessive use, often associated with a loss of sense of time or a neglect of basic drives;
2. withdrawal, including feelings of anger, tension, and/or depression when the computer is inaccessible;
3. tolerance, including the need for better computer equipment, more software, or more hours of use; and
4. negative repercussions, including arguments, lying, poor achievement, social isolation, and fatigue.

The validity of internet addiction as true disorder is and has been questioned.

So, here's the question.  If people can become addicted to the internet in the same way they can become addicted to alcohol or drugs, how might that play out in the workplace?  At Ohio Employer's Law Blog, Jon Hyman theorizes that even if internet addiction is adopted as a mental disorder in the DSM, employers in the US ought to be able to legitimately regulate computer use at work without coming into violation of the Americans with Disabilities Act.  He states:

'Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job."

While I agree with the premise that employers have a legitimate interest in ensuring employees remain productive and do not misuse company technology, the pendulum in Canada in relation to the accommodation of disability in the workplace has clearly swung in the direction of employees.  As a result,  I'm not so certain that Canadian employers who attempt to take a strictly black and white approach to the enforcement of technology use policies (for example) won't come into conflict with human rights legislation.  Using Mr. Hyman's example, if an employer moved to terminate an employee in Canada for excessive personal use of the internet on work time and the employee then disclosed a potential disability connected to that internet use, I think an employer would be wise to stop and explore what the employee was saying before taking any further steps.  Some of the questions an employer would need to ask itself are:

• can the employee, through medical information, provide support for an addiction claim?  Can the employee show that the computer usage rule may well be prima facie discriminatory?;
• can the employer prove that any rule it has regarding computer usage is a bona fide occupational qualification (BFOQ)? (here, the three-part test set out in Meiorin would apply and the employer would have to be able to answer "yes" to all three questions below in order for the rule to qualify as a BFOQ)
  • was the rule adopted for a purpose rationally connected connected the performance of the job in question?
  • was the rule adopted in an honest and good faith belief that it was necessary to fulfill the work-related purpose?
  • is the rule reasonably necessary to accomplish the work-related purpose?  Specifically, can the employer demonstrate that it is impossible to accommodate the employee claiming internet addiction without imposing undue hardship on the employer?

A failure to engage in this kind of analysis, no matter how flagrant an employee's violation of the computer usage rule, will, in my view, only invite scrutiny on the part of human rights commissions -- at least in this country.

Further reading:

"Recognize Internet Addiction as a Mental Disorder, Journal Urges" - Edmonton Journal

"China tackles rise in 'Internet addiction'" - CTV.ca