Human Rights - What Every Employer Should Know
by Robert B. Reid and Leanne E. Standryk

Introduction

The common law does not force employers to enter into contracts of employment with anyone, including disabled employees.  It allows employers to freely negotiate the terms of the employment contract, to manage the workplace environment in accordance with legitimate business interest and to freely terminate the relationship on reasonable notice without cause.  However, these rights are restricted by human rights legislation.  Employers are responsible for providing a work environment that is free from harassment and discrimination.  They are responsible for dealing quickly, fairly and effectively with human rights issues in the workplace. 

    The Ontario Human Rights Code governs discrimination in respect of all aspects of the employment relationship.  The Code stands for the general statement that it is public policy in Ontario to recognize the inherent dignity and worth of every person, and to provide equal rights and opportunities without discrimination.         

    Any decision within the employment context, without regard to human rights legislation, is incomplete.  The consequences of making a decision without regard for or an understanding of human rights legislation can be dramatic, both monetarily and in terms of business efficiency.  It is therefore important to have a good understanding of employee rights and employer duties under the Code to avoid Human Rights Complaints.

The Legislative Framework: 

            Generally

    Both federal and provincial human rights legislation prohibit discrimination in employment on various grounds, including disability or handicap.  Employment hiring practices, contracts, including collective agreements, and other conditions of employment which result in disabled employees being treated differently from non-disabled employees, or such that they suffer disadvantages because of the fact that they are disabled, prima facie contravene the provisions of the human rights legislation.

    The human rights legislation under which an employer will be governed depends upon the nature of the employer, namely, whether the employer is a government or private employer, as well as the type of business which the employer is conducting.[1]  A non-government private sector employer within Ontario will be subject to the Ontario Human Rights Code unless its business is one which falls under the jurisdiction of the federal government and is thus federally regulated[2], in which case it will be subject to the Canadian Human Rights Act. 

    Section 5 and section 7(2) of the Ontario Human Rights Code [the Code] set the stage and provide every person with the following rights and protection:

            s.5(1)  Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offenses, marital status, family status, or handicap.

            s.5(2)  Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offenses, marital status, family status, or handicap.

            s.7(2)  Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

            s.7(3)  Every person has a right to be free from,

                        (a)       a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

                        (b)       a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

    These rights are protected in every aspect of the workplace environment (extending to workplace social functions both on and off site).  This includes job applications, recruitment, training, transfers, promotions, day-to-day working conditions, dismissals, layoffs, employer/employee Christmas parties, summer functions and retreats.

            What is discrimination?

    The Human Rights Code does not provide a definition of discrimination.  As such, it has been left to the human rights tribunal and courts to provide definitions and guidelines regarding the types of acts which will be considered discriminatory in nature.  Generally, discrimination in the workplace occurs when a burden is imposed or a benefit denied to a person for a reason related to one of the prohibited grounds. The leading definition of discrimination stems from the Supreme Court of Canada in the case of Andrews v. Law Society (British Columbia)[3] which defines discrimination as set out by McIntyre J.[4]

                   … discrimination may be described as a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society.

    Workplace discrimination is not always obvious and can manifest itself in both direct and indirect forms. 

            Direct and Indirect Discrimination

    Direct discrimination arises when an employer adopts a practice or a rule which, on its face, is discriminatory against members of a protected group.  For example:

a)                 a rule that excludes pregnant women for promotions;

b)                 a rule that prohibits hiring people suffering from a hearing impairment;

    Indirect discrimination (also known as constructive or adverse effect discrimination) arises when the application of a policy, practice or requirement that seems neutral on its face has a negative impact on an individual or a group protected under the human rights legislation.   The protection from indirect discrimination is set out in section 11 of the Code as follows:

          s.11(1)  A right of a person under Part I[5] is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

                        (a)       the requirement, qualification or factor is reasonable and bona fide in the circumstances;

                        (b)       it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

          s.11(2)The Commission, the board of inquiry, or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside resources of funding, if any, and health and safety requirements, if any.

                An example of indirect discrimination may result from the following:

a)     minimum height requirement on a particular job;

b)     a requirement that all employees work on Saturday.

    The height restriction could have the effect of excluding many women or members of some ethnic groups from a job competition.  The requirement that all employees work Saturdays could discriminate against members of a particular religion.  Of particular relevance to employers in the hospitality industry, is a case where the employer’s employees refused a complainant service on the grounds that they believed him to be intoxicated when, in fact, the complainant suffered from a disability.  No direct discrimination under section 1 of the Code occurred on the basis of disability because the complainant made no attempt to correct the employee’s impression.  This was, however, a breach of section 11 being an indirect/constructive discrimination.[6]

    Indirect discrimination in the workplace will be permitted only if they are part of a bona fide occupational requirement.  In 1999 the Supreme Court of Canada laid out a test (the “Meiorin” test) to determine if an apparently discriminatory requirement could be allowed as a bona fide occupational requirement (“BFOR”):

1. Was the rule adopted for a purpose that is rationally connected to the job function performed?

2. Was the rule adopted in good faith, that is, in the genuine belief that it was necessary for the stated purpose?

3. Could the purpose have been accomplished by some other method, thereby accommodating the employee without undue hardship?

            What is harassment?

    Harassment, including sexual harassment, is considered a form of discrimination under the Code.  The term harassment is defined in s.10 of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”  Course of conduct suggests more than one incident is required.

                   Sexual harassment has been most broadly defined by the Supreme Court of Canada as follows:

…unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment.[7]

                   Examples of sexual harassment may include:

a)                 suggestive remarks or gestures;

b)                 the elevator look;

c)                 unwelcome sexual advances;

d)                 unnecessary physical conduct such as patting or pinching; and

e)                 sexual assault.

    Other forms of harassment can occur when the work environment becomes “poisoned” intentionally or unintentionally, though inappropriate behaviour such as:

a)     displays of sexually explicit posters/pictures;

b)     derogatory or otherwise offensive racial/ethnic jokes;

c)     taunts or threats directed toward any member of a protected group.

    The Ontario Human Rights Commission in its publication “Human Rights at Work” defines and provides the following information with respect to the “poisoned work environment”:

An employee may feel that the workplace is hostile or unwelcoming because of insulting or degrading comments or actions that have been made about him or her and/or others based on a ground in the Code. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a "poisoned environment".  A poisoned environment cannot, however, be based only on subjective views.  There should be objective facts to show that the comments or conduct result in unequal or unfair terms and conditions and an infringement of the Code.

Members of a group protected under the Code who are not the specific targets of a discriminatory comment or action may also have a right to bring a complaint. Exposure to a negative or hostile treatment that is racially motivated has a negative impact upon other employees and may leave them wondering if they are also the target when they are not present.

Example:

A Chinese woman works in a bakery where racial slurs and stereotypical language are common in the kitchen.  None of these remarks are directed specifically to her but are directed at her Black co-workers.  However, a human rights tribunal finds that she has been subjected to a racially "poisoned environment".

Management has the responsibility to address situations that may give rise to a poisoned environment. A workplace that allows a poisoned environment to develop or continue may be the subject of a complaint to the Commission.

Work Place Stress

For the purpose of this paper, we can consider that the negative stress felt in a workplace occurs when we no longer “handle” or can be energized by general workplace pressures.  It is the harmful physical and emotional response that occurs when there is a conflict between meeting job demands and the control that the employee has over meeting those demands.  When the demands of the job and the effect of the work environment exceed the individual’s capacity to adapt, and the person has little control over the situation, workplace stress results.[8]

There is a general misunderstanding that the Code protects employees from all forms of harassment by employers and fellow employees.  In fact, it is only harassment based on the normal list of categories (race, sex, etc.) that is prohibited.  In addition, protection from sexual harassment has been specifically identified in s.7(2).

        Courts have recently developed standards that are imposed on work places to require employers to treat employees with decency, civility, respect and dignity.  Failing to do so may allow the employee to consider herself as “constructively dismissed” which is the equivalent of a termination.  In legal terms, the courts say that the employer has conducted itself such that it no longer intended to be bound by the employment contract.  In those cases (which are beyond the scope of this paper), the employer can be on the hook for the usual dismissal damages based on pay in lieu of notice, as well as extra damages for “bad faith” conduct.  The standard is whether or not a reasonable person in the circumstances would have been expected to persevere in employment given the conduct experienced from the employer.

        Although claims of employee harassment in a human rights context are not new in general, one developing area of the law relates to workplace stress.  Claims for disability based on stress, or claims of harassment based on the stress caused by job changes may be the biggest bombshell on the human rights horizon for employers. 

        Times of corporate downsizing and downloading of jobs onto fewer people has been a well-documented source of stress for employees.   Psychologists and psychiatrists see negative stress created by the conflict between job demands and the employee’s ability to control meeting those demands.  More work, more hours, greater expectations for productivity, fear of layoff or termination, fear of accident or injury on the job are but a few of the documented “stressors” that are common in today’s workplace.

       Employers will not be pleased to know that their reasonable quest for productivity in a highly competitive marketplace may be the source of complaints about harassment or the basis for disability claims.  However, they also understand that lost time due to absenteeism as well as productivity losses and poor performance from “stressed out” employees are not the secrets to business success.

        Either through direct investigation, or indirectly through feedback (where possible) from Employee Assistance Programs, employers need to be aware of problems that can reflect excessive workplace stress.  Naturally, not everyone responds to stress in the same way, nor does everyone have the same capability for dealing with stress.  To make the matter more complicated, stress can manifest itself in a variety of ways – irritability, alcohol use, and depression, to name but three.  The Canadian Human Rights Tribunal determined, in the 2001 case of Stevenson v. Canada (Security Intelligence Service)[9] that depression was a mental disability, protected by the Code, and therefore requiring the employer to accommodate.  The Ontario definition of disability, which includes “mental disorder”, is certainly wide enough to allow the same conclusion.  Presumably, an employer is therefore being discriminatory and failing to accommodate if a request for sick leave is either denied, or is held against an employee’s attendance record.

        The Superior Court of Justice in Ontario determined in the 2003 case of Zorn-Smith v Bank of Montreal[10] that where the employee was given an unreasonable workload and duties without adequate training, the employer was responsible for the resulting stress under which the employee worked.  The “burn-out” experienced by the employee (and supported by her doctors) made a partial return to work as mandated by company policy impossible, so that the employer decision to terminate the relationship was found by a court to be unreasonable, and therefore grounds for wrongful dismissal.  More significant, though, was the court’s willingness to be critical of and make the employer responsible for its conduct in creating the stressful environment in the first place.  It is highly likely that courts (and human rights tribunals) will extend that responsibility for treatment that actually causes health issues.  Not only can the problem be framed as a failure to accommodate a mental disability, but also it can be a form of actual harassment if punitive rather than remedial steps are taken.

            Duty to Accommodate     

        Part of an employer’s duty to avoid discrimination on one of the prohibited grounds set out in Section 5 of the Code, is the duty to accommodate a person who would otherwise be adversely affected by his/her employment.   In the employment context, the employee classes most often requiring accommodation are disability, sex/pregnancy, religion, family status and age.  In a nut shell, the essential needs of the employee conflict with the duties of employment.

        The duty to accommodate is set out in the Code as follows:

s.17(1)  A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.

(2) The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the costs, outside sources of funding, if any, and health and safety requirements, if any.

                   (3) The Commission, the board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

        In summary, section 17 provides that a person cannot be found incapable of performing his/her essential duties unless an effort has been made to accommodate his or her needs. The accommodation of an individual's needs is required by the Code unless such accommodation would cause undue hardship for the employer. 

        The employer's duty to accommodate is a positive duty to accommodate the workplace to provide any employee protected under the legislation with an equal opportunity to perform a job for which he/she is qualified.   The duty received revised attention in and as a result of the 1999 Supreme Court of Canada case of British Columbia (Public Service Employee’s Relations Commission) v. BCGSEU (referred to as Meiorin)[11]  The Court established anew unified test for analyzing discrimination and set out key expectations of the employers in fulfilling their duty to accommodate.

        Under the new test, employer will not succeed in justifying a job standard having discriminatory effects on workers unless it can prove that the job standard was reasonably necessary for a work related purpose or otherwise was a bona fide occupational requirement.  The employer cannot do this unless it first establishes that it was impossible to accommodate the worker and others without experiencing undue hardship.

        In order to establish a bona fide occupational requirement, the employer must prove three facts:

i) the employer adopted the requirement in question for a purpose rationally connected to the performance of the particular employee’s job;

ii) the employer adopted  the requirement in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work related purpose; and

iii) the requirement is reasonably necessary to the accomplishment of the legitimate work-related purpose.  To prove reasonable necessity, it must be shown to be impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship on the employer.

        The Court mandated a proactive onus on employers to “build concepts of equality into the workplace.  Hence, the employer’s duty to accommodate does not await a claim of discrimination in order to be activated.  Employers must proactively review their workplace requirements and standards to ensure they are free from discrimination at the outset rather than waiting to react to an individual complaint.

        In the context of accommodating a disability, first and foremost, the employer must turn its mind to what information is required to accommodate the employee.   Medical information is critical to determine the nature of the disability, the likelihood of regular attendance in the future, and what kind of accommodation, if any, is necessary. 

            The Scope of Accommodation: Undue Hardship

        As previously stated, the legislation provides "that a person cannot be found incapable unless there has been an effort to accommodate his or her needs to the point of undue hardship".  The language is ambiguous and has given way to different interpretations across Canada.  What remains unclear is how much accommodation represents undue hardship?

        The Human Rights Code has limited the analysis of "undue hardship" to three factors: (1) costs: (2) outside sources of funding, if any: and (3) health and safety risks.  The Ontario Human Rights Commission's Guidelines for Assessing the Accommodation Requirement for Persons with Disabilities state that costs will be considered to be an "undue hardship" only if the accommodation can be shown to alter the essential nature or would substantially affects the viability of the enterprise responsible for the accommodation.  This standard has not been universally accepted and is, strictly speaking, not legally binding because it is neither a decision of a court nor a regulation.

        The Supreme Court of Canada in Central Alberta Dairy Pool[12]provided the following guideline as to what factors should be considered in the assessment of undue hardship:

Financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of workforce and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the workforce and facilities can be adapted to the circumstances.   Where safety is at issue, both magnitude of risk and the identity of those who bear it are relevant considerations.

        The judgment does not provide a definition or a formula to follow in assessing "undue hardship".  It is important to understand that the list of factors provided is not meant to be exhaustive in nature. They should be applied with common sense and flexibility in the context of the factual situation presented in each case.  One thing is for sure, in any given case of discrimination involving the duty to accommodate; this standard of undue hardship will require that the employer demonstrate:

(i) evidence of an extensive search for accommodation possibilities;

(ii) substantial evidence of undue hardship.

        Financial cost is one of the factors which will be considered in determining the scope of the duty to accommodate.  This will differ depending upon the resources of the employer.  In Renaud[13] the Supreme Court of Canada found that the financial cost must be substantial and not trivial in order to constitute undue hardship.

         In a nut-shell, the Ontario Human Rights Commission has indicated that costs will amount to undue hardship if they are:

                        1. quantifiable;

                        2. shown to be related to the accommodation; and

                        3. (a)  so substantial that they would alter the essential nature of the enterprise,

                            (b) so significant that they would substantially affect the viability of the enterprise.[14]

        Guidelines issued by the Human Rights Commission set out a number of factors that will be considered in determining whether a financial cost would alter the essential nature or substantially affect the viability of the enterprise as well as further guidance and commentary respecting an employer's duty to accommodate.[15]

        The duty of accommodation is one of the most difficult employer obligations to define and implement.  The duty to accommodate to the point of undue hardship is continually evolving.  Even after extensive review of the applicable legislation and case law, employers are still left with great uncertainty with respect to the exact scope of their duty.

        As a practical matter, the employee must participate in assisting the employer, union and/or a co-worker in discharging the duty to accommodate.  The main responsibility of the employee in this regard is to provide timely notice as to both the existence and the nature of their needs for the accommodation.[16]

        When an accommodation issue does arise, the employer should thoroughly investigate and document its actions, keep a written record of all meetings, proposals, information collected, cost estimate, etc., pertaining to the efforts undertaken to find acceptable accommodation solutions.  Above all, keep an open mind, listen, look for help, and treat the matter with the utmost sensitivity.

        When confronted with an accommodation issue employers should take the following practical approach:

i) Adopt a pro-active stance. Involving employees in considering a solution is a must.

ii) Involve all workplace parties at the outset.  Employer, Union and Employee.

iii) Understand the employee’s restrictions and limitations. 

iv) Be creative and flexible.

v) Consult the appropriate experts – Legal and medical

vi) Invest in the accommodation.

vii) Involve and educate management that will be affected by the accommodation.

viii) Involve and educate workers that will be affected by the accommodation.

            Handling the Complaint

        The employer is required to take effective action to deal with complaints when they are made.  The duty extends beyond complaints made by employees against management staff, and includes harassment amongst employees of the same status.

        Although conducting an effective investigation will not absolve an employer from all liability, it may mitigate against a larger award and, more particularly, may prevent a case from going beyond the internal investigation stage to a formal Human Rights complaint.  Since the case of Wall v University of Waterloo and Embro in 1995, tribunals have looked for several indicators to show that the employer has used due diligence in investigating complaints:  promptness, awareness that the alleged conduct is prohibited, motivation to provide a healthy work environment, a serious response to the matter, the presence of a complaint mechanism, and communication of its actions to the complainant.

        The Ontario Board of Inquiry in Etienne v. Westinghouse (1997) required the employer to conduct an investigation regardless of whether the employer thought there were enough facts upon which to base a complaint in the first place.  In effect, the employer must react when a complaint is received, and must not dismiss complaints out of hand without investigation.  Often, an isolated complaint may be indicative of the tip of the iceberg in matter of, for example, racial or sexual harassment.  A poisoned work environment, for which the employer will be held responsible, might only be discovered on investigation of a poorly articulated or barely substantiated complaint.  In Moffat v Kinark Child and Family Services, a Board of Inquiry in Ontario held, in 1999, that an employer should have an internal complaint procedure, which must be followed promptly and fairly and with information as to status being given to the complainant.

        The first step in prevention is to maintain an anti-harassment policy and to make sure that there is reasonable education about its contents for all employees.  Those in charge of administering the policy must have even greater depth of knowledge and ideally there will be a credible, senior person in management who is the point-person for receiving complaints.  Standard policies will confirm that harassment is contrary to the Code, offer some reasonable definitions, confirm the seriousness with which complaints will be taken, and set out the procedure including the identity of the person to whom the complaint should be made.  Protection of the complainant should be assured, and examples of inappropriate behaviour and of a “poisoned work environment” should be offered.

        Assuming that a complaints’ procedure is in place, it obviously must be followed if a complaint is received.  Given the sensitive nature of the matter by definition, great effort should be made to have the investigation completed as quickly, fairly and with as much objectivity as possible.  The hope is that a reasonable investigation can allow relationships to be preserved and repaired if possible, and if not then for matters to be resolved with a sense of propriety.  The investigator should be neutral, knowledgeable, and perhaps an outsider to the organization.  Interviews should be in person where possible and in a private setting.  The results should be communicated to management for further decision making, and the final results made known to the complainant.  Care should be taken not to actually or apparently penalize the complainant for having made the complaint, unless clearly established that it was done in bad faith. 

        Once the investigation is complete and the results determined, any punishment or consequence should be immediately imposed to establish the seriousness of the matter, and to maintain the employer’s credibility.  The complainant may or may not be fully satisfied, but most often if the investigation is done well, the matter will proceed no further.  It is not necessary to impose termination – in effect human relations capital punishment – whenever an individual is found to have violated the Code.  The punishment must fit the crime.  However, the employer’s action should at the very least confirm its commitment to the harassment-free workplace.  In addition, if the complaint does go further to the OHRC, the Commission investigator may be favourably impressed by a high quality investigation, and the details of that work will certainly be provided by the employer to the investigator for review.

            Conclusion

        The law pertaining to human rights legislation is a matter of public policy in Ontario.  It stands for the proposition that people are entitled to be treated equally and with dignity. In the past, human rights issues were typically a very small part of employment/labour law matter.  Now, such issues re-define the rights and obligations traditionally ingrained within the employment relationship. 

        Non-compliance can be a matter of significant expense. The law is complex and confusing due to its continued developments and different interpretations.  A firm understanding of the law, a flexible and proactive approach, along with the willingness to listen and communicate, will help employers avoid the costly expense of litigation.