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MacPherson Leslie & Tyerman LLP - Western Canada’s Law Firm
The Shifting Sands of Accommodation
in 2015
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 The duty to a...
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Duty to Accomodate I Leah Schatz, Partner, MLT

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Leah presented "The Duty to Accomodate: The New Normalcy of Unprecedented Cases" on October 27, 2015 @ Wiegers Financial & Benefits' Annual Benefits Seminar

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Duty to Accomodate I Leah Schatz, Partner, MLT

  1. 1. MacPherson Leslie & Tyerman LLP - Western Canada’s Law Firm The Shifting Sands of Accommodation in 2015 Wiegers Financial & Benefits Leah A. Schatz October 27, 2015
  2. 2. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  The Saskatchewan Human Rights Code protects against discrimination, including on perceived or analogous grounds  The “core” prohibited grounds of discrimination across Canadian jurisdictions are very similar:  Race  Religion and creed  Age  Sex  Sexual orientation  Gender identity and expression ( new expression prohibited ground in SK)  Marital and/or family status  Disability, receipt of social assistance  Political association or activity and  Social disadvantage Overview of the Duty to Accommodate 1
  3. 3. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  The duty to accommodate only arises once grounds for accommodation have been established  Once the grounds are established, the onus then shifts to the employer to demonstrate that the alleged discriminatory requirements were reasonable, taken in good faith, and that the complaint could not be accommodated without undue hardship Overview of the Duty to Accommodate 2
  4. 4. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  The ground of family status is included in human rights legislation in most provinces across Canada, including Saskatchewan  The Code defines “ family status” in s.2(1)(h.1) as follows:  (h.1) “family status” means the status of being in a parent and child relationship and, for the purposes of this clause:  (i) “child” means son, daughter, stepson, stepdaughter, adopted child and person to whom another person stands in place of a parent;  (ii) “parent” means father, mother, stepfather, stepmother, adoptive parent and person who stands in place of a parent to another person;  Growth in the number of dual-income and single parent families, and the accompanying struggle of employees to cope with the demands of work and family, employers have been faced with increasing requests for changes to the terms and conditions of employment to assist in managing family responsibilities Accommodating Family Status 3
  5. 5. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  “[A] parent’s right and duty to strike that balance [between work obligations and child rearing] coupled with a clear duty on the part of an employer to facilitate and accommodated that balance” (Brown v Canada (Department of National Revenue, Customs and Exercise) (1993)) What is Family Status? 4
  6. 6. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  On May 2, 2014, the Federal Court of Appeal rendered two decision relating to discrimination based on family status.  Attorney General of Canada v Fiona- Ann Johnstone and Canadian Human Rights Commission [2014] FCA 110.  Canadian National Railway Company v Denise Seeley and Canadian Human Rights Commission [2014] FCA 111.  In so doing, the court clarified the scope of the prohibited ground of family status contained in the Canadian Human Rights Act, as well as the legal test for finding a prima facie case of discrimination on the same ground. What is Family Status? 5
  7. 7. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  In Johnstone, the Federal Court of Appeal confirmed that family status includes certain childcare obligations of working parents.  The Court noted, however, that the types of childcare needs contemplated by family status must be limited to those that have an “immutable or constructively immutable characteristic”.  Family status does not include protection for personal family choices, such as participation in extra-curricular activities and other voluntary activities.  It includes that a parent cannot neglect without engaging his or her legal liability.  For example, a parent cannot leave a young child without supervision at home in order to pursue his or her work, since this would constitute a form of neglect, which in extreme examples could even engage s.215(1) of the Criminal Code, RSC 1985, cC-46  Other parental legal obligations also arise under provincial child welfare legislation What is Family Status? 6
  8. 8. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Prior to the recent Federal Court of Appeal decisions, there were three distinct approaches to establishing discrimination based on family status: a narrow approach, a broad approach and a balanced approach.  Johnstone and Seeley have adopted components from each of these approaches potentially bringing an end to the confusion over what the applicable test should be for establishing a prima facie case of discrimination based on family status. 7 Test to Establish Family Status Discrimination
  9. 9. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Current Test:  An individual advancing a claim of discrimination based on family status must now show:  1. that a child is under his or her care and supervision;  2. that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;  3. that he or she has made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonable accessible; and  4. that the impugned workplace rule interferes a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. Test to Establish Family Status Discrimination 8
  10. 10. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Current Test (Continued):  The test requires a complainant to show that reasonable efforts have been expended to meet childcare obligations within means available to the parent(s) and that neither the employee seeking an accommodation nor his or her spouse can meet the parents’ enforceable childcare obligations while continuing to work  A claimant must show that an available childcare service or alternative arrangement that would meet the childcare needs is not reasonably accessible  For a parent/employee to trigger the employer’s legal obligations, the workplace rule or working condition must interfere in a manner that is “more than trivial or insubstantial” with the fulfillment of the childcare obligations Test to Establish Family Status Discrimination 9
  11. 11. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Current approach:  A complainant must prove that he/she holds a characteristic protected under the Code, that he/she was subject to adverse treatment, and that his/her protected characteristic was a factor in the adverse treatment (Moore v BC)  If a complainant succeeds in establishing a prima facie case of discrimination, the respondent bears the burden of justifying its conduct as a BFOR (bona fide occupational requirement). Accommodating Medical Marijuana 10
  12. 12. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Two cases with similar fact patterns, holdings vary. Accommodating Medical Marijuana Cases 11
  13. 13. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  In Old v Ridge Country Contracting 2015 BCHRT 63, the complainant suffered from life-long illness involving seizure. He was employed as heavy equipment operator. He took medication, augmented by marijuana, with no negative impact on the workplace.  The Tribunal found that:  Despite asking for medical information from the doctor, the employer did not describe any further clarifying inquiries of the employee’s doctor, regarding his compliance or about the potential treatment efficacy or undue side effects of medical marijuana.  The employer did not describe efforts to engage the employee in a mutual process of accommodation beyond saying it could not accommodate him without undue hardship.  Note: the tribunal did not consider the factor of Illegal possession of marijuana. The Tribunal held that the employer did not establish BFOR and the termination of employment should be set aside. Accommodating Medical Marijuana 12
  14. 14. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  In French v Selkin Logging 2015 BCHRT 101, the employee, cancer survivor, smoked marijuana which was not prescribed by the doctor. He articulated that it could help him with pain-management. His physicians simply condoned his using marijuana for pain if it works. There is no evidence that any doctor condoned his smoking marijuana at work - particularly at a job as an equipment operator in the logging industry.  The Tribunal held that the employer established BFOR on the grounds of that:  setting a higher safety standard than that otherwise required by the Occupational Health and Safety Regulation is permitted.  a general rule prohibiting consumption of substances such as marijuana, narcotics or alcohol at the workplace would be within the scope of an employer's legitimate management rights.  the marijuana was unlawfully possessed and used.  the employee did not disclose the use of marijuana, failing to facilitate accommodation that the employer could provide. Accommodating Medical Marijuana 13
  15. 15. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver Re. Evraz Steel and USW, Local 5890. (2015) 123 CLAS 241, Saskatchewan case:  The employee who has a drug addiction problem was employed as a Relief Crane Operator Trainee.  The employer, the Union and the employee entered an agreement providing terms that the employee was required to satisfactorily complete a drug and alcohol screen prior to returning to work. He also needed to follow the recommendations provided by Substance Abuse Professional. The parties agreed that the breach of any of the conditions of the agreement will render to terminate employment.  The employee had a positive result in a drug test after he consumed cocaine one night and failed to conduct self-report. The employer maintained that it had met the undue hardship onus by providing a series of opportunities. Accommodating to Disability of Addiction 14
  16. 16. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  The Arbitrator found that the employee had the potential to achieve a full recovery from his drug addition, he did not refuse further treatment, and accommodation of the relapse would not have been unreasonable. DS returned to work without a follow-up program requiring such things as attendance at self-help meetings, counseling, monitoring or having a sponsor. Such programs played a critical role in providing an addict with assistance in attempts to achieve recovery and change his life. The lack of a follow-up program was a significant factor in DS's relapse in 2014.  Accommodation to the point of undue hardship had not been established. It was not an undue hardship for the Employer to provide the employee with one final opportunity to achieve recovery.  The Arbitrator ordered that the dismissal was set aside and his reinstatement was subject to conditions imposed by the Arbitrator. Accommodating Disability of Addiction 15
  17. 17. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Current approach  First step:  The duty to accommodate arises when grounds for accommodation have been established (Moore Test)  Second step: Grismer/Meiorin test  (1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;  (2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and  (3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship. Accommodating Religion 16
  18. 18. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  In Amir and Nazar v Webber Academy Foundation, 2015 AHRC 8, Webber Academy is a private high school residing in Calgary. The school refused to provide two boys with space for a short prayer on campus and offered accommodation by giving the students permission to miss classes and leave the campus to pray. Then Webber Academy refused to re-enroll them the following year. The explanation of the school was that they wanted to keep non-denominational character of the school.  The Tribunal found that:  The students praying during school hours is based on a sincerely held religious belief and the students were denied the services provided by Webber Academy and denied the use of facilities because of their requests to fulfill their sincerely held religious beliefs on campus.  as a dependent youth, students at Webber Academy are not at liberty to come and go as they wish and full day attendance is required unless there is permission to leave. The Students were placed in a conflict between their religious obligations and following the rules of the respondent.  failing to accommodation cannot be justified by BFOR in the reason of that a small scale of prayer would not have religious influence on other students impacting on non-denominational environment in the school. Accommodating Religion 17
  19. 19. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Conclusion:  Webber Academy’s standard of no overt prayer or religious activities on school property was not reasonably necessary to accomplish Webber’s purpose of maintaining a non- denominational identity that is free from religious influences, and that the students could have been accommodated without incurring undue hardship by providing with a small space to pray. Accommodating Religion 18
  20. 20. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  “gender identity” – each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither or anywhere along the gender spectrum. May be the same as or different from their birth- assigned sex.  “gender expression” – how a person publicly presents their gender. This can include behavior and outward appearance such as dress, hair, make-up, body language and voice. Accommodating Gender 19
  21. 21. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  “trans” or “transgender” – people with diverse gender identities and expressions that differ from stereotypical gender norms. It includes but is not limited to people who identify as:  transgender;  trans women ( male-to-female);  trans man ( female-to-male);  transsexual;  cross-dresser;  gender non-conforming;  gender variant; or  gender queer. Accommodating Gender 20
  22. 22. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Employers have a legal obligation to maintain an environment free of harassment targeting people because of their gender identity or gender expression; to be aware of a poisoned environment that might exist, to take steps to respond and eliminate it; and to make sure they are not engaging in systemic discrimination.  This includes the duty to accommodate at all stages of employment from hiring, to retention, pay and benefits, dress codes, training and promotion, performance management and termination. Accommodating Gender 21
  23. 23. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Employers cannot choose to remain unaware, ignore or fail to address potential or actual human rights violations relating to trans employees, whether or not a complaint is made  If an employer does not address sexual or gender-based harassment in the workplace, liability can be attributed to the employer rather than just the employees directly responsible for such conduct Accommodating Gender - Harassment 22
  24. 24. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Harassment can be gender- based or sexual:  Gender harassment examples:  Insults, comments that ridicule, humiliate or demean people because of their gender identity or expression  Refusing to refer to a person by their self-identified name and proper personal pronoun  Sexual harassment examples:  Intrusive or offensive questions or comments about a trans person’s sex characteristics, sexual identity, romantic relationships or sexual activity, or sexual orientation  Jokes that objectify trans or gender non-conforming person in a sexual way including those circulated by email or social media Accommodating Gender - Harassment 23
  25. 25. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Organizational reviews, policies and discrimination  Employers risk violating the Code if they do not address underlying problems such as systemic barriers, a poisoned environment or an organizational culture that condones discrimination  Transitioning  Transitioning refers to the activities and process that people may follow to help them live their gender identity  People who are transitioning may need distinct forms and degrees of accommodation along the way  Ex: time away for medical procedures or other activities to support their transition Gender Accommodation Issues 24
  26. 26. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Washrooms & Change Rooms  Trans people have the right to access these facilities based on their lived gender identity  A trans person who identifies and lives as a man should have access to the men’s washrooms and change rooms. A trans person who identifies and lives as a woman should have access to the women’s washrooms and change rooms  In Sheridan v Sanctuary Investments Ltd. (c. o. b. B. J’s Lounge), (1999), the B.C. Human Rights Tribunal found a policy that required patrons to use the washroom matching their anatomy to be discriminatory A trans person should not also be required to use a separate washroom or change room because others express discomfort or transphobic attitudes Gender Accommodation Issues 25
  27. 27. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Washrooms & Change Rooms Cntd.  Some people may need accommodation, temporary or otherwise, to access washrooms, change-rooms or other type of sex-segregated facility  For example, while going through a transition process, and because of concerns about harassment from others, a trans employee may request access to the single-user gender-neutral accessibility washroom normally reserved for use by persons with disabilities  Employers may choose to take initiative up front to design, add or convert facilities to be more inclusive with a range of options for everyone Gender Accommodation Issues 26
  28. 28. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Dress Codes  Any specific dress codes, such as uniforms or protective gear, must be genuine and reasonably necessary and should not be based solely on gender stereotypes  Organizations must allow trans people and other gender non-conforming individuals to dress according to their expressed gender  Dress codes must also accommodate women who have masculine gender expression and men who have a feminine gender expression  Others may identify as gender non-conforming, and should not be required to dress in clothing either stereotypical of men, such as a tie, or women, such as a skirt Gender Accommodation Issues 27
  29. 29. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver  Hiring  Overt, subtle or hidden discrimination against trans people or other gender non- conforming individuals can happen during hiring  In Montreuil v National Bank of Canada (2004), the Canadian Human Rights Tribunal found that the National Bank of Canada had discriminated against a trans woman through their hiring practices  The trans woman had applied for a job as a customer service representative in a bank. She underwent a three-step interview process and was led to believe that she would be hired  When she found out that she did not get the job, the bank dis not explain why. The bank had not filled the position and continued to look at applicants who had the same qualifications as the trans woman  The Tribunal stated that where a trans person is qualified and someone else, no better qualified is selected ( or where the organization rejects the trans person but continues to seek applicants with the same qualifications), the organization will need to provide a non-discriminatory explanation for not hiring the trans person Gender Accommodation Issues 28
  30. 30. MacPherson Leslie & Tyerman LLP - Western Canada’s Law Firm Questions 29
  31. 31. LAWYERS Click to edit Master title style www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | VancouverMacPherson Leslie & Tyerman LLP - Western Canada’s Law Firm

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