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  • 1. Duty to Accommodate in Employment New Brunswick Human Rights Commission January 2006 70 slides
  • 2. Overview
    • Overview of NB Human Rights Act
    • Types of discrimination
    • Duty to accommodate
    • Defining disability
    • Meiorin Test
    • Undue hardship
    • Advice for employers and employees
    • Examples of accommodation
    • Return to work
    • Absenteeism
    • NBHRC complaint process
  • 3. N.B. Human Rights Commission
    • Administers and enforces the New Brunswick Human Rights Act
    • Investigates and conciliates complaints of discrimination and harassment
    • Advances equality through public education programs
  • 4. NBHRC Educational Resources
    • Publications (e.g. fact sheets, guidelines)
    • Website: www.gnb.ca/hrc-cdp
    • Presentations and workshops
    • Human Rights Award
    • Advice on policy development
  • 5. New Brunswick Human Rights Act
    • Provincial anti-discrimination law applicable to:
    • public and private sector
    • employers, service providers and property owners
    • under provincial jurisdiction (90% of the workforce)
    • also called Human Rights Code
  • 6. New Brunswick Human Rights Act
    • Human rights laws override collective agreements, contracts and other laws, including Employment Standards Act, Workers’ Compensation Act and Industrial Relations Act.
    • Human Rights Act is subject only to the Constitution, including the Canadian Charter of Rights and Freedoms.
  • 7. Areas of Application
    • Employment
    • Public services and facilities
    • Tenancies and sale of property
    • Signs, symbols and publications
    • Business, professional and trade associations
    • Labour organisations
  • 8. Employment
    • Job ads, application forms, interviews
    • Hiring and promotions
    • Salaries
    • Working hours and conditions
    • Employee benefits and training
    • Discipline
    • Dismissal, layoff and retirement
  • 9. Prohibited Grounds
    • Race
    • Colour
    • Religion
    • National Origin
    • Place of Origin
    • Ancestry
    • Sex (pregnancy)
    • Age
    • Marital Status
    • Physical Disability
    • Mental Disability
    • Sexual Orientation
    • Political Belief or Activity (new)
    • Social Condition (new)
    The Human Rights Act currently prohibits discrimination on 14 grounds:
  • 10. Social Condition
    • the condition of inclusion of the individual in a socially identifiable group…
    • … that suffers from social or economic disadvantage on the basis of his or her:
      • source of income,
      • occupation or
      • level of education
  • 11. Retaliation
      • filed a complaint,
      • given evidence or
      • assisted in the complaint process.
    The Human Rights Act also prohibits retaliation against anyone who has
  • 12. Canadian Human Rights Act
    • Federal anti-discrimination law
    • Administered by the Canadian Human Rights Commission
    • Applies to federally regulated activities
      • Banks
      • Aeronautics
      • Cross-border transportation
      • Telecommunications
      • Coastal fisheries
      • First Nations
      • Federal Government
      • Etc.
  • 13. Responsibility
    • ensuring equality of opportunity, and
    • providing an environment that is free from discrimination and harassment.
    The Supreme Court of Canada has said that employers, service providers and property owners are legally responsible for:
  • 14. Responsibility
    • They are liable for
    • harassment and discrimination by managers and employees,
    • even if they were unaware of those actions,
    • provided those actions are work-related or within the course of employment.
  • 15. One factor is enough
    • Bushnell Doctrine
    • Employers are liable even though a prohibited ground (for example, sex) is only one factor in a decision relating to employment.
    • The employer’s decision may have been well founded on other grounds, but the Human Rights Code is violated if discrimination was a factor.
  • 16. Defining Discrimination
    • a practice that is not reasonably necessary
    • that has the effect, intentional or not,
    • of putting persons at a disadvantage
    • because of shared personal characteristics (e.g. race)
    • and that is based on stereotypes
    • or that perpetuates the view that they are less capable, or less worthy of recognition or value.
  • 17. Defining Discrimination
    • Discrimination
    • Need not be intentional
    • Need not involve differences in treatment
    It is the discriminatory effect of an action or policy that makes it discriminatory.
  • 18. Types of Discrimination
    • Direct Discrimination
    • Harassment
    • Adverse Effect Discrimination
  • 19. Direct Discrimination
    • Occurs when an employer, owner or service provider adopts a practice or a rule which on its face treats people differently based upon a prohibited ground.
    • Often intentional
  • 20. Harassment
    • Discrimination includes harassment.
    • Harassment based on any prohibited ground (including mental disability and physical disability) constitutes discrimination within the meaning of the Human Rights Act.
  • 21. Adverse Effect Discrimination
    • When a uniform practice or standard has an adverse effect on a group because it does not accommodate their particular characteristics.
    • Often unintentional
  • 22. Duty to Accommodate
    • To accommodate means to eliminate the discriminatory effects of a policy or practice on a protected group.
    • Employers must
      • go beyond treating everybody the same,
      • accommodate the protected characteristics of those to whom the Act applies.
  • 23. Duty to Accommodate
    • This duty applies to:
      • Hiring,
      • all terms and conditions of employment,
      • return to work after an injury or illness.
    • Frequent grounds of complaints:
      • Religion
      • Sex
      • Physical disability
      • Mental disability
  • 24. Defining Disability
    • Disability includes most physical and mental conditions that affect ability or are perceived by others as affecting ability.
    • This includes conditions that are
      • Visible (i.e. a person using a wheelchair)
      • Invisible (i.e. diabetes, epilepsy)
    • Disability under the Human Rights Act is not limited to workplace injuries.
  • 25. Defining Disability
    • Disability also includes:
    • Intellectual impairments
    • Learning disorders
    • Drug and alcohol dependency
    • Perception of disability (e.g. a gay man refused a job because it is assumed he has AIDS)
  • 26. Physical Disability “ Any degree of disability, infirmity, malformation or disfigurement of a physical nature caused by bodily injury, illness or birth defect and, without limiting the generality of the foregoing, includes any disability resulting from any degree of paralysis or from diabetes mellitus, epilepsy, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair, cane, crutch or other remedial device or appliance.” (Article 2, New Brunswick Human Rights Act )
  • 27. Mental Disability “ mental disability” means (a) any condition of mental retardation or impairment (b) any learning disability, or dysfunction in one or more of the mental processes involved in the comprehension or use of symbols or spoken language, or (c) any mental disorder (Article 2, New Brunswick Human Rights Act )
  • 28. Disability Case Law
    • Prevents an employee from performing significant functions that most people can perform;
    • Is ongoing rather than temporary; and
    • Cannot be controlled by the employee
    Generally, courts will find a physical or mental condition to be a disability if it
  • 29. Disability Case Law Tribunals have recognised temporary conditions as disabilities where they are significant or ongoing. Morgoeh v. Ottawa (City) (1989) 11 CHRR D/80 (seasonal allergies) Wilson v. Douglas Care Manor (hysterectomy)
  • 30. Disability Case Law
    • But some tribunals have refused cases where
      • The condition was transitory and a human rights complaint would trivialise the Code
      • Neilson v. Sandman Four Ltd. (1988) 7 CHRR D/3329
      • (temporary sciatica resulted in 11 days missed from work following a slip on ice)
  • 31. Disability Case Law
      • Or where the condition was brought on by the complainant’s own actions or negligence.
      • Ouinette v. Lily Caps Ltd. (1990) 12 CHRR D/19
      • (employee missed two days for the flu in mandatory attendance probationary period and one day for an asthmatic reaction brought on by her own negligence)
  • 32. Disability Case Law
    • Every complaint of discrimination must be determined on its own merits.
    • Courts have refrained from drawing a clear line as to how far employers are required to go in order to meet their duty to accommodate.
  • 33. Acceptable Defenses Employers are permitted to maintain a discriminatory limitation, specification or preference if they can establish a bona fide occupational qualification . They must design their workplaces and employment standards in inclusionary terms aimed at the full participation of all members of the labour force.
  • 34. Acceptable Defences
    • Employers are permitted to maintain a discriminatory limitation, specification or preference if they can establish a bona fide occupational qualification .
    • What this term means was explained by the Supreme Court of Canada in the Meiorin and Grismer cases in 1999.
    • Those cases established the Meiorin Test, which sets out the limit to the duty to accommodate.
  • 35. Meiorin Test An employer ’ s rule that has a discriminatory effect is nevertheless valid when three requirements are met:
    • Its purpose is rationally connected to the job
    • The rule was adopted in good faith and the belief that it is necessary to that purpose
    • The rule, in fact, is reasonably necessary to accomplish that purpose or goal, i.e. accommodation is impossible without undue hardship on the employer
  • 36. Grismer
    • The Supreme Court applied the same test to service providers in the Grismer case, and stipulated further that
    • Accommodation may require individual assessment
    • Employers and service providers must prove that they have made every possible accommodation short of undue hardship
    • The individual must be tested against a realistic standard that reflects his or her capacities and potential contributions.
  • 37. Undue Hardship
    • It is the employer who must prove that accommodation has been met, or that it is impossible to accommodate the complainant due to undue hardship.
    • Where the employer takes reasonable steps towards accommodation, and further steps would result in undue hardship, the employee may also have to take accommodating steps to reduce his or her loss.
  • 38. Undue Hardship
    • Safety (objective medical evidence of likelihood of injury or serious health and safety risk needed to prove undue hardship)
    What constitutes undue hardship will vary from one case to the next, depending on factors such as:
  • 39. Undue Hardship Factors
    • Cost
    • Availability of external funding
    • The ability of the employer to recover the cost of accommodation (tax deductions, grants, depreciating capital costs or distributing costs)
    • Economic situation of employer
    • Market conditions
  • 40. Undue Hardship Factors
    • Size of employer
    • Availability of other positions
    • Impact on efficiency and productivity
    • Objective evidence of impact of other multiple requests for accommodation
    • Unreasonable or uncooperative action by the employee seeking accommodation
  • 41. Undue Hardship Factors
    • Impact on employees
    • Labour relations climate
    • Unions’ duty to accommodate (employer cannot plead collective agreement constraints as undue hardship)
    • Nature of the work
    • Reliability of adaptive technologies or devices
    • Creative design or process solutions
    • Phased-in accommodation
  • 42. Costs as Undue Hardship The Supreme Court of Canada has said “one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment”. (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) [1999] 3 S.C.R. 868)
  • 43. Costs as Undue Hardship
    • Undue hardship means there may be costs. The term implies “inconvenience, and some degree of disruption and expense.”
    • It is critical that the employer document its actions in determining whether an employee can be accommodated.
  • 44. Costs as Undue Hardship
    • Quantifiable
    • Shown to be related to the accommodation, and
    • So substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affects its viability
    According to the Supreme Court, costs will amount to undue hardship if they are:
  • 45. Case Law - Costs Decision makers have also stated that with regard to proving that an employer attempted to accommodate the complainant, impressionistic evidence of increased cost will not generally suffice … (Irvine v. Canada (Canadian Armed Forces) (2001),C.H.R.D. No. 39)
  • 46. Advice for Employers
    • Accept request for accommodation in good faith
    • Obtain expert opinion or advice where needed
    • Take an active role in ensuring that alternative approaches and possible solutions are investigated
    • Keep a record of the accommodation request and action taken
  • 47. Advice for Employers
    • Maintain confidentiality
    • Limit requests for information to those reasonably related to the nature of the limitation or restriction
    • Grant accommodation requests in a timely manner
    • Assume the cost of any required medical information or documentation
  • 48. Advice for Unions
    • Joint responsibility with employer to facilitate accommodation
    • Active role in the accommodation process
    • Support accommodation irrespective of collective agreements, up to the point of undue hardship
  • 49. Advice for Employees
    • Make needs known to the best of his/her ability
    • Answer questions or provide information about restrictions or limitations
    • Discuss possible solutions
    • Co-operate with experts whose assistance is required to manage the accommodation process
  • 50. Advice for Employees
    • Accept reasonable accommodation when it is offered
    • Discuss disability with persons who need to know (supervisor, union representative, occupational health staff, etc.)
    • No need to divulge intimate personal information that they do not want anyone other than their medical advisors to know
  • 51. Examples of Accommodation
    • Purchase or modify computers for use by visually impaired or physically disabled employees
    • Provide wheelchair ramps or separate bathrooms for men and women
    • Modify job duties (light duties)
  • 52. Examples of Accommodation
    • Alter job schedule
      • time off for medical appointments or religious holidays;
      • part-time hours, full-time hours, flex-time;
      • tolerating some degree of absenteeism);
      • move from night shift to day shift to accommodate child care duties
    • Transfer employee to a different job
    • Offer rehabilitation
    • Offer training
  • 53. Examples of Accommodation
    • Hire an assistant
    • Hire a temporary replacement
    • Adjust job security and child care leave policies
  • 54. Right to return to work under Workers’ Compensation Act
    • Section 42.1 gives right to return to same or similar job for one year (10-19 workers) or 2 years (20+ workers).
    • This applies only to work-related injuries to workers who have worked at least one year (unlike Human Rights Act).
    • Enforced by Employment Standards Branch of N.B. Dept. of Training & Employment Development.
    • This is a minimum standard; it is usually surpassed by human rights duty to accommodate.
  • 55. Right to return to work under Human Rights Act
    • A right to return to their job
    • A right to expect reasonable accommodation from both their employer and union
    Employees who return to work after an absence related to a prohibited ground have
  • 56. Return to Work
    • There is no fixed rule on how long an employee with a disability may be absent before the duty to accommodate has been met. This will depend on the facts of each case, including
      • The prognosis for full or partial recovery
      • The rehabilitation efforts of the employee
      • The nature and scope of the job
      • The size and financial resources of the employer
  • 57. Return to Work
    • In human rights cases, the duty to accommodate will invariably extend beyond the legislated period during which an employer is required to hold an injured worker’s position available.
    (Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001) 41 CHRR D/349 (back wages for 11 years)
  • 58. Return to Work If accommodation could result in health and safety violations or substantial risk of injury to the employee, the employer may claim that this is undue hardship. Impressionistic evidence will not be acceptable in assessing risks. Objective evidence, empirical data and expert opinions will be required. Potential increases in a workers’ compensation premiums or the mere prospect of tort liability will not amount to undue hardship.
  • 59. Return to Work Case Law When an employee returning to work is unable to perform certain job functions that are not central to the position that the employee holds, employers are expected to accommodate the employee to the point of undue hardship. Irvine v. Canada (Canadian Armed Forces) (2001) 41 CHRR d/466)
  • 60. Return to Work Case Law When an employee returning to work is unable to perform specific job functions, moving the employee to a lower paying job is not accommodation. Cape Breton Health Care Complex and Canadian Auto Workers, Local 4600 90 L.A.C. (4 th ) 403
  • 61. Types of Absenteeism
    • Culpable (blameworthy) absenteeism
      • Attracts discipline
    • Non-culpable (innocent) absenteeism
      • Does not merit discipline
      • Must be accommodated short of undue hardship
  • 62. Culpable Absenteeism
    • Sleeping late
    • Leaving early for no apparent reason
    • Attracts discipline (progressive)
  • 63. Non-Culpable Absenteeism
    • Illness
    • Injury
    • Disability
    • Beyond the control of the employee
    • Does not attract discipline
    • Managed through documentation, counselling and/or accommodation
    • If not rectified or accommodation not possible, may result in termination.
  • 64. NBHRC Complaint Process
    • Individuals who think they have been discriminated against may file a complaint, provided the incident occurred within the previous year.
    • Complaint process is free
    • Retaliation is prohibited
  • 65. NBHRC Complaint Process
    • Initial inquiry may be anonymous, but any complaint must be signed, and opposite party gets a copy.
    • Three main steps:
      • Conciliation
      • Investigation
      • Arbitration
  • 66. NBHRC Complaint Process
    • Investigation
    • Conducted by a human rights officer
    • Investigation report submitted to parties involved
    • Written submissions of parties
    • Report then submitted to the Commission
  • 67. NBHRC Complaint Process
    • Options of the Commission
    • Dismissal – if the evidence does not support the complaint
    • Continuation of settlement efforts
    • Recommendation that a human rights Board of Inquiry be appointed
  • 68. Boards of Inquiry
      • Award damages for lost wages and emotional suffering
      • Require employers to reinstate the employee with the necessary accommodation
      • Require employers to develop policies and practices aimed at eliminating discrimination
    Have very broad remedial powers:
  • 69. More Information Online
    • Meiorin case (1999) http://www.lexum.umontreal.ca/csc-scc/en/pub/1999/vol3/html/1999scr3_0003.html
    • Grismer case (1999) http://www.lexum.umontreal.ca/csc-scc/en/pub/1999/vol3/html/1999scr3_0868.html
    • NBHRC Guideline for BFOQ's and BFQ's and the Duty to Accommodate http://www.gnb.ca/hrc-cdp/e/gbfoqe.htm http://www.gnb.ca/hrc-cdp/e/Guideline-BFOQs-BFQs-Duty-Accommodate-New-Brunswick.pdf
    • NBHRC Guideline on Accommodating Physical and Mental Disability at Work http://www.gnb.ca/hrc-cdp/e/Guideline-on-Accommodating-Disability-at-Work.pdf
  • 70. How to Contact Us
    • Human Rights Commission
    • P.O. Box 6000
    • Fredericton, NB, E3B 5H1
    • Toll free: 1-888-471-2233
    • Phone: (506) 453-2301
    • Fax: (506) 453-2653
    • TDD: (506) 453-2911
    • E-mail: [email_address]
    • Web: www.gnb.ca/hrc-cdp
    • Regional offices
    • Campbellton
    • Moncton
    • Saint John