“Interview Opportunity

The Manitoba Human Rights Commission is concerned about the lack of information the public has regarding women and breastfeeding.

Executive Director Dianna Scarth and Chairperson Jerry Woods are available for interviews regarding nursing mothers and human rights protections.

‘It is amazing that we still have to deal with this issue.  We hope to work with the City and other groups to bring awareness of the rights of breastfeeding mothers to the public, service providers and employers,’ says Ms Scarth.

Ms Scarth and Mr. Woods can also discuss one of the Commission’s latest publications Parents and Pregnant Women to clarify any other issues regarding the rights of pregnant and nursing mothers.”

If you have an interest in participating in this worthwhile project of the Commission, you should be in touch with Patricia Knipe, Communications Director at the Commission.  She can be reached at (204) 945-5112.

Yes, notes are important for a whole host of reasons, both personal and professional, but from my perspective they are absolutely critical if you, as a manager/supervisor/employer become aware of a potential human rights issue in your workplace.  By writing down what an employee has told you they have concerns about and what you did in response along with relevant dates and times and places, notes become key defense tools should questions ever be raised down the road about whether management appropriately handled a human rights issue, regardless of what it relates to.  

Created pre-complaint, notes are often considered to be one of the most reliable pieces of evidence to be considered during a formal process.  Certainly, when I am brought in to investigate a complaint I ask everyone and their dog if they made notes and I ask to see them right away.  Often, the notes can short-circuit the investigation process, making it more efficient than it would have been without them.  For example, let’s say  a complainant employee is contending that they told their manager they were being subjected to racially-based harassment and the manager did nothing in response.  Let’s also say that when I interview that manager, the manager recalls a conversation with the employee and also recalls going to the accused employee to tell them to stop their inappropriate conduct but she has not a single note of any of this.  Now, I have a credibility issue I have to resolve.  Who do I believe, the complainant employee or the manager?  I then have to embark on asking a whole bunch of questions of potentially a whole bunch of people to learn about the complainant employee and the manager so that I can then step back at the end of the investigation and make a call as to whom, of the two, is the most believable.  If, instead, that manager had notes, the situation is much different.  I can then focus on the notes and go back to the complainant employee and ask them specific questions flowing from those notes.  The manager’s credibility is enhanced by those notes.  That is not to say that the credibility question is a slam-dunk in favor of the manager but it is certainly miles ahead from where it would have been without the notes.

When it comes to defending the actions that you, as a business took, regarding a human rights issue raised in your workplace, you never want to be left in a position where you have to reconstruct events or have to rely on memories that, for most people, are notoriously unreliable.   The jigsaw puzzle type of analysis that has to be done when no notes exist leave an organization very vulnerable from a liability management perspective.

So, my advice is no matter how seemingly insignificant an employee comment or concern made to you about a potential human rights issue might appear at the time, write it down.  Remember that age-old, but oh so still relevant saying — an ounce of prevention is worth a pound of cure.

Does the Cdn legal profession discriminate against 'visible minorities'? http://chilp.it/?bb431e

Ideas on creating accommodating wkplaces for older workers. http://chilp.it/?398b29

Great advice on valuing diversity in the workplace. http://chilp.it/?b77bb9

Ontario employers still hesitant to hire people with disabilities http://chilp.it/?f46997

Does your workplace suffer from 'gender fatigue'? http://tiny.cc/aFGyW

Insurer stops paying disability benefits over Facebook photos. http://chilp.it/?aebd9a

By age 9, children aware of racism, affected by it http://chilp.it/?397a52

Guideline on Accommodating Students with a Disability helping in New Brunswick http://chilp.it/?f239d7

Happy reading! 

"…it's wise for women to think strategically about when to disclose a pregnancy to employers.."

  Photo credit:buzzybee

One would think that we're past the point where, in addition to worrying about getting to that all-important first trimester before we normally feel comfortable enough announcing our pregnancy to the world, that women have to think critically about when to announce their pregnancy to a potential or current employer.  But, sadly, that's not the case as is highlighted by the tale of Jessica Maciel v. Fashion Coiffures Ltd. and Crystal Coiffures Ltd..

After graduating from a business college, Ms. Maciel, at age 20, applied for a full-time receptionist position with two related hair salons.  This was to be her first full-time job.  At the time of her application, Ms. Maciel was four months pregnant.  She made no mention of her pregnancy either at the time she applied for the job or upon being offered the job.  Unfortunately for her, though, she was fired the same day she started.  The employee claimed she was let go after experinencing nausea and disclosing her pregnancy to the person training her.  The employer claimed it was unaware that their new employee was pregnant when her employment was terminated.  Instead, the employer said that Ms. Maciel had indicated during her first day of work that she no longer wanted to work full-time.  This was a game-changer from the employer's perspective, as it needed someone to work day shifts during the week and contended that there was no part-time work available.

The Human Rights Tribunal of Ontario did not, however, buy what the employer was selling, primarily because the employer's defense of Ms. Maciel's termination lacked credibility.  The Tribunal honed in on a number of problems with the employer's position, the key ones from my perspective being as follows:

• the employer failed to put forward a credible reason why Ms. Maciel, having applied for and accepted a full-time position, would propose working part-time on her very first day of work when she was no longer in school and had no restrictions on her ability to work full-time;
• the employer's contention that Ms. Maciel requested part-time work did not make sense in light of the fact that: 
• • the employer admitted it did not ask any questions about when and how many hours Ms. Maciel might be able to work yet apparently promised her that it would find out if other salons in the same mall were looking for a part-time receptionist.  The Tribunal questioned how this would be possible when the employer had no information about Ms. Maciel's availability to give these other salons;    
  • Ms. Maciel would have needed to work at least 30 hours a week between her start date and her due date in order to be eligible for Employment Insurance benefits;    
  • the employer shredded Ms. Maciel's employment contract yet took the time to outline in a letter to her post-termination that there was no part-time position available and specifically set out which hours Ms. Maciel was expected to work.  The Tribunal found this letter to be "carefully constructed" and consistent with Ms. Maciel's assertion that she received it after advising the employer that it was discriminatory to fire someone because they were pregnant and making a request for a copy of her contract.    

After Ms. Maciel was fired by the salons she attempted to find other work.  But, interestingly, as her pregnancy was far more visible at this point, she found herself unable to obtain further employment. 

In the end, the Tribunal ordered the salons to pay Ms. Maciel $15,000.00 in general damages, $20,719.00 in lost wages and benefits (due to her inability to claim EI benefits) plus applicable interest on those amounts.  The salons were also ordered to jointly prepare a written policy detailing accommodations to be made to pregnant employees and maternity/parental leave practices that would apply post-birth.

Business (in)convenience does not trump human rights protections

Given some conversations I have had in the past, I know that there are likely some employers who will read this decision and think that it is completely unfair to the business owner.  They will say that it was inappropriate of Ms. Maciel to fail to disclose her pregnancy when she applied for the job. They will say that they had the right to know she was pregnant given that they were hiring someone to do a particular job for the foreseeable future, without having to look for another replacement a few months down the road.  They will point out the costs and time involved with hiring and replacing employees, and the business limitations associated with needing to keep a comparable position open for a female employee to return to after completion of her maternity leave.  Others will say that Ms. Maciel was fired during what could be considered her probationary period so the employer was fully in its rights to terminate her for any reason.  [And, just in case you're wondering, I've heard these concerns being raised by female business owners as well as from male business owners -- keep in mind, too, that in the Maciel case, she was fired by, you guessed it, a woman].

While I certainly understand these arguments, particularly when the business in question is relatively small and subject to a potentially greater impact whenever any administrative challenge arises, if these arguments were allowed to win the day women would simply disappear from the workplace — once again.  The major problem with these arguments is they are all predicated on a model of business convenience (or inconvenience, depending on your perspective).  And the problem with the model of business convenience is that it will never be convenient for any business to employ anyone who gets pregnant and has to temporarily leave the workplace — which, coincidentally, only impacts women.   These arguments also suffer from a fatal logical flaw.  Whenever any employer hires any person, regardless of sex, there is never a guarantee that that employee is going to work out or that the employee is going to remain in the workplace without interruption.  Beyond that, you should know that human rights protections apply regardless of whether you are a job applicant, a new hire or a long-time employee of a business.  There is no "pass" on human rights law obligations during a person's probationary period or otherwise.

Strategy is the best policy — unfortunately

Ms. Maciel might have been the best darned employee the salon owners in this case had ever hired. Instead, not only will the salons never find that out but they are now faced with having to pay a large damage award and recovering from a huge public black eye associated with the negative publicity following from the Tribunal's decision.  Keep in mind that this is a workplace where it appears women predominately work and I would presume is a business frequented by female customers.    

It turns out that applying strategy in disclosing a pregnancy is still, in fact, the best policy for a woman to adopt when applying for a job or when already gainfully employed.  It's, unfortunately, a lesson that even today Ms. Maciel had to learn the hard way.

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

by Mark Sabourin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The facts in brief

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

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

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

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

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

Decision

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

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

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

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

• • the City sent e-mails on two occasions requesting possible accommodations to Mr. Jodoin’s     current     department (Waste & Recycling), even though the City’s representative indicated she seriously doubted his ability to return to work in that department;
  • with one exception, no record was kept of the positions that the City had actually considered and ultimately rejected as possible accommodations for Mr. Jodoin;
  • the City’s policy and procedural guidelines indicated that union involvement was required anytime an accommodation might engage the collective agreement.  Although the collective agreement was arguably engaged here, the union had never been approached by the employer.  While the City argued that Mr. Jodoin indicated he had no use for the union, the Panel pointed out that this had little relevance to the employer’s responsibility to involve the union pursuant to its own process;
  • the City’s procedural guidelines mandated an open communication process.  However, the City was unable to show that it maintained regular contact or any semblance of open communication with Mr. Jodoin;
  • the City’s guidelines provided two checklists to assist in the accommodation process but the City’s representative stated she followed the process “in her head” rather than either of the checklists as it would be too time consuming to complete the checklists on all of her files;
  • all possible accommodations had not been pursued.  The City could not show that their search for modified work for Mr. Jodoin had been extended to City departments outside of Mr. Jodoin’s union or corporate wide.
  • Even though Mr. Jodoin was medically capable of working in a sedentary position, he was never given the option by the City of returning to work when WCB suspended his benefits.  Instead, he was offered a Leave of Absence to enable him to appeal that decision.  The Panel also pointed out that this “option” was given to Mr. Jodoin with no explanation and without advising him that they were not searching for a sedentary position for him;
  • At no time did the City actually inform Mr. Jodoin that they could not find appropriate accommodation for his disability.  Instead, they threatened to terminate him if his WCB benefits were not reinstated of if he did not sign the Leave of Absence form.  The Panel stressed that because this was such a complicated employment situation, the City had a responsibility to meet with Mr. Jodoin and explain his options and any consequences associated with not signing the form, something it failed to do;

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

  Remedy

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

  What to take from this case:

  • I’ll end this post the same way I started it — having a process and following it is absolutely essential if you, as an employer, hope to avoid liability in relation to the duty to accommodate;
  • Follow that process in each and every instance you are faced with needing to accommodate the human rights-protected needs of your employees; and
  • Complete your process.  Do not stop looking for accommodation if WCB or another insurer or third party payer decides to terminate any benefits your employee might have been receiving relating to the accommodation need.  An employer’s duty to accommodate operates independently and you’ll be the one on the hook, not the insurer, if you choose to short-circuit that policy without appropriate justification.
  ]]> http://donnaseale.ca/having-a-process-and-following-it-key-to-meeting-duty-to-accommodate/feed/ 1 http://donnaseale.ca/ontario-human-rights-commission-updates-policy-on-discrimination-due-to-pregnancy-breastfeeding/ http://donnaseale.ca/ontario-human-rights-commission-updates-policy-on-discrimination-due-to-pregnancy-breastfeeding/#comments Mon, 25 May 2009 05:00:00 +0000 Donna Seale http://donnaseale.ca/?p=8 The Ontario Human Rights Commission has released an update of its Policy on Discrimination Because of Pregnancy and Breastfeeding.  The update incorporates, among other things, new legal cases relating to pregnancy and pregnancy-related discrimination in employment, services and housing.  You'll see from the Table of Contents, that the Policy covers a lot of ground, including:
  • Code Protections for Pregnancy and Breastfeeding
  • Pregnancy and Intersecting Grounds under the Code (describes how a woman may experience discrimination due to pregnancy differently based on other aspects of her identity such as her age or ethnicity);
  • Pregnancy and Family Status
  • Pregnancy and Domestic Abuse
  • Examples of Discrimination based on pregnancy and breastfeeding such as:
    • discrimination based on negative attitudes and stereotypes;
    • subtle discrimination;
    • harassment or poisoned environments;
    • systemic discrimination;
    • failure to accommodate
  • Employment and Pregnancy
    • Pregnancy and pregnancy-related legislation and protections beyond the Human Rights Code;
    • Discrimination in hiring, promotions, transfers and terminations
    • The Duty to accommodate pregnancy and pregnancy-related characteristics

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

  ]]> http://donnaseale.ca/ontario-human-rights-commission-updates-policy-on-discrimination-due-to-pregnancy-breastfeeding/feed/ 3 http://donnaseale.ca/employer-terminates-disabled-employee-before-union-protection-could-be-gained/ http://donnaseale.ca/employer-terminates-disabled-employee-before-union-protection-could-be-gained/#comments Wed, 18 Mar 2009 05:00:00 +0000 Donna Seale http://donnaseale.ca/?p=14 In a March 9, 2009 decision, the British Columbia Human Rights Tribunal ruled that Norwex Civil Contractors Inc.  discriminated against Chris Mills on the basis of disability.  In particular, the Tribunal concluded that Mr. Mills, who was actually terminated twice by Norwex, was ultimately fired the second time to prevent him from becoming a member of the company's newly formed union.  Membership in the union would have protected Mr. Mills from arbitrary termination on the basis of disability.

  Although the Tribunal would have awarded monetary damages to Mr. Mills, he did not seek compensation.  Instead, he brought his complaint to bring public awareness to the discrimination that people with disabilities can, and often do, encounter in the workplace.  In this particular situation, Mr. Mills presented with a visible physical disability (his gait was affected and he spoke slowly and precisely) due to a brain injury he sustained as a result of literally almost drinking himself to death.  When he was initially terminated by Norwex, he was advised that he had to be let go because other employees were uncomfortable around him.  Norwex reversed its decision to terminate after Mr. Mills asserted his rights to employment without discrimination.  "Wiser" the second time around, Norwex chose to tell Mr. Mills he was now being let go because his job would no longer exist due to the closure of part of the company.  Unfortunately for Norwex, Mr. Mills saw right through that explanation and took them to task before the Tribunal.  No one appeared at the hearing on behalf of the company.

  The decision is a short one (6 pages) and I'd urge you to read it.  It shows just what disabled employees can come up against in the workplace.  It turns out for Mr. Mills, his most significant barrier to overcome wasn't his debilitating injury, but his employer.

  ]]> http://donnaseale.ca/employer-terminates-disabled-employee-before-union-protection-could-be-gained/feed/ 0 http://donnaseale.ca/clearing-the-air-criminal-records-employment-and-the-manitoba-human-rights-code/ http://donnaseale.ca/clearing-the-air-criminal-records-employment-and-the-manitoba-human-rights-code/#comments Wed, 25 Feb 2009 21:00:00 +0000 Donna Seale http://donnaseale.ca/?p=16 For some reason, I've run across a bunch of articles lately which make the bold statement that Manitoba's human rights legislation offers no protection to employees or job applicants charged with a criminal offence or who have a criminal record.  Since that is not the case, I thought I'd try to 'clear the air.'

  Whether a job applicant or an employee is given any protection under human rights legislation relating to criminal charges or convictions very much depends on where you live in Canada.  In some jurisdictions across the country, and federally, the applicable human rights legislation contains a specific reference to persons who have been criminally charged and/or who have criminal records and provides them with varying protections.  Here's a sampling:

  The Ontario Human Rights Code contains the following provision:

  Employment

  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 offences, marital status, family status or disability.

  Note: Ontario defines "record of offences" as referring to a Criminal Code conviction for which which a pardon has been granted or a conviction for a provincial offence.

  The Yukon Human Rights Act has this section:

  7.    It is discrimination to treat any individual or group unfavourably on any of the following

  grounds

          ……….

  (i) criminal charges or criminal record…"

  Here's what the British Columbia Human Rights Code says:

  13  (1) A person must not

  (a) refuse to employ or refuse to continue to employ a person, or

  (b) discriminate against a person regarding employment or any term or condition of employment

  because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

  You'll note, if you read closely, that Ontario, BC and the Yukon all treat the issue of criminal charges and/or convictions in the area of employment very differently.  In Ontario, you have to have a pardon before you receive protection.  In BC, employment decisions cannot be made on the basis of a person's criminal conviction if the conviction is unrelated to the person's employment.  In the Yukon, the protective reach extends to persons who either have criminal charges or records.  It is very important that you be aware of the specifics of the legislation that applies to you as an employer.

  So, what's the situation in Manitoba?  In Manitoba's Code there is no specific reference to the fact that person's with criminal records or who have been charged criminally have any protections.  To, perhaps, muddy the waters, the Code also contains a provision that says:

  Criminal conduct excluded

  9(4) For the purpose of dealing with any case of alleged discrimination under this Code, no characteristic referred to in subsection (2) shall be interpreted to extend to any conduct prohibited by the Criminal Code of Canada.

  The reference in s.9(4) to "subsection (2)" refers to the specific characteristics that are protected under Manitoba's legislation and which I've discussed here before (eg. religion, age, sex, ancestry, disability, etc.).  Ok, so based on s.9(4), I guess persons with criminal records aren't protected?  Wrong.

  Manitoba's Code contains four general definitions of discrimination.  Three of those definitions link specifically to the protected characteristics.  But, the fourth definition makes no reference to the protected characteristics at all.  This is the "unspecified grounds" provision and here is what it says:

  9(1) In this Code, "discrimination" means

  (a)    differential treatment of an individual on the basis of the individual's actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit.

  And this, my friends, is where people who believe they have been discriminated against on the basis of a criminal charge or conviction can attempt to seek redress under Manitoba's legislation.  So, for example, if you, as an employer, choose not to hire someone simply because they have a criminal record, rather than assessing their ability to do the job on the basis of their personal merit, that decision could trigger a successful human rights complaint under the Manitoba Code.

  Manitoba's Human Rights Commission has specifically addressed how they will approach the interpretation of section 9(1) in its Policy Relating to Criminal Records:

  "Alleged discrimination in employment on the basis of a criminal charge or conviction may constitute the basis of a complaint under section 9(1)(a) of

  The Human Rights Code.

  Whether a charge or conviction has a bona fide relationship to the occupation or employment will depend upon all of the circumstances of the individual case, including, at least, the following:

  (i) Does the behaviour that is the subject of the charge or conviction, if repeated, pose a significant threat to the employer’s ability to carry on its business safely and efficiently?;

  (ii) What were the circumstances of the charge and the particulars of the offense involved: e.g. how old was the individual when the events in question occurred; were there extenuating circumstances?;

  (iii) How much time has elapsed between the charge or conviction and the employment decisions? What has the individual done during that period of time? Has s/he shown any tendencies to repeat the kind of behaviour for which s/he was convicted? Has the individual shown a firm capacity to rehabilitate him/herself?;

  (iv) Although not determinative in and of itself:

  a. has a pardon been secured in relation to the offence?

  b. have all the conditions been met in relation to an offence for which a conditional discharge was received?

  (v) Having considered all of the above, was the severity of the particular action taken against the Complainant warranted by the nature and circumstances of the charge or conviction?

  The onus is on the employer to establish that the existence of the criminal charge or conviction is a reasonable disqualification.

  The Commission recognizes an individual’s fundamental right to be presumed innocent until proven guilty subject to only such reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society. Therefore, where the discrimination is based on a criminal charge, as opposed to a conviction, the evidentiary onus on the employer will be greater. In addition to the factors (i) to (v) above, the employer must clearly demonstrate that the risk to the public, co-workers or the employer’s business is so severe that the mere possibility of a conviction warrants the discriminatory employment decision."

  So, if you are a Manitoba employer, and you happen to have read some of the articles I've been reading lately which say employers here are not impeded from refusing to employ someone if they have been criminal charged or convicted please ignore what you've read.  Although perhaps not as obviously as the Yukon legislation, in the area of employment, the Manitoba Code does provide broad protections to persons who have either been convicted of a criminal offence or who are facing criminal charges.

   

   

  ]]> http://donnaseale.ca/clearing-the-air-criminal-records-employment-and-the-manitoba-human-rights-code/feed/ 1 http://donnaseale.ca/using-social-networking-sites-in-hiring-process-smart-move-or-human-rights-trap-part-three/ http://donnaseale.ca/using-social-networking-sites-in-hiring-process-smart-move-or-human-rights-trap-part-three/#comments Wed, 04 Feb 2009 20:45:25 +0000 Donna Seale http://donnaseale.ca/?p=18

  Today marks our last installment in the series on whether employers should be using the Internet to screen job applicants.  (Well, at least it's my last post for now.  As I've mentioned before, this is an emerging area of the law so I'm sure there will be more to talk about down the road).  If you missed the first two posts of the series, you can check out Part One here and Part Two here.  I'd also urge you to read the comments posted by Dan Michaluk to Part Two (scroll down to the end of the post and click on "comments").  His comments aligned very well with my thoughts going into this post and they also prompted me to press my thinking further so I thank him for taking the time to contribute.

  I'll be honest, when I was first asked by one of my readers about whether employers should be doing Internet-based or social networking-based searches in the recruitment process my initial response was to recommend the opposite of Nike's famous slogan and say "just don't do it".  Certainly, in Part Two, I set out a whole host of legal problems that can arise from doing Internet searches in the recruiting process so it would be completely reasonable to suggest you should avoid them like the plague — at least until we have further direction from the law.  At this point in my thinking process, I still tend to sit closer to that side of the fence.

  But, I also have to be pragmatic.  Given that there are employers in Canada already doing these searches (remember that 12% statistic we talked about in Part One), given this is a trend that will likely only increase as time goes on (as shown by what's already occurring in the US) and given that I know the lure of a quick Google search may be just too much for some of you to resist, let's move to looking at this issue from a practical perspective. 

  If you think you might want to take a peek at what pops up on an Internet-based search of your job applicants, what are the things you should be thinking about in order to minimize your legal liability?

  Here are my TOP EIGHT TIPS:

  1.    Be Realistic

  Before you embark on a Google or social networking site search, I think it's important for you to reflect on whether, given who you are as an employer and the nature of the job you are attempting to fill, you really need to conduct these types of searches in the first place.  If you're a mom and pop grocery store looking for a part-time bagger, your approach might be very different than, say, if you're the President of the United States looking to cull together your White House team. 

  Going back to Part Two, you'll want to ask yourself whether a job candidate's online presence, whatever it may be, could somehow come into conflict with the job you are considering hiring them for.  If you can't connect the dots, you shouldn't be doing these types of searches. 

  Remember: just because the information may be out there doesn't mean you need to access it.

  2.     Maintain the Upside-Down Funnel

  Remember in Part Two I talked about how it is always advisable to think of the the information-gathering process relating to your job recruits as an upside-down funnel.  You should be ensuring that you are only asking what you need to at each stage to determine whether your candidate moves forward.  Too much information too soon plus an adverse hiring decision will increase the chances you'll be faced with a discrimination claim.

  With that in mind, it is my view that any Internet-based searches should be done after you have made your candidate a formal job offer. 

  3.    Be Upfront

  This point ties in closely with point #2.  I think you should be clear with all of your job applicants that if they reach the end of your recruitment process and are offered a job, you will be conducting a full background check.  You should indicate what that background check will consist of, including Internet-based searches. 

  By disclosing this from the get-go you demonstrate that you're not doing anything "behind anyone's back", and you might even have job applicants who weed themselves out because of your disclosure.  That might be a good thing (if they, perhaps, have put something out on the web that might not make them a good fit for your organization) or not (you may get quality candidates who just aren't comfortable with employers who do these searches regardless of whether there is anything negative out there about them to find).

  4.    Establish a written process

  The saying "the best defence is a good offence" applies as equally to mitigating your legal risk as it does to the sports world.  By this I mean that it always helps to have a written document that you can point to in your defence against litigation setting out what you did and didn't do in relation to any particular process you adopt in your workplace.

  Here, you'll want to give thought to setting down in writing the following:

  a.    what Internet-based searches will be run;

  b.    what information yielded by those searches will be examined and why;

  c.    how you will assess what may be discovered;    

  d.    what use will be made of that information;

  e.    how you will document any information relied on for the purposes of the hiring decision.

  You'll really want to give a lot of thought to developing your search criteria so you can show a human rights commission, tribunal or civil court that you weren't just going on a fishing expedition and that there are tangible job-related reasons why you conducted these searches in the first place.   Most importantly, from my perspective, you always want to be able to demonstrate that you only looked into what was needed to appropriately judge your job applicants on the basis of personal merit.  The more tightly honed your search criteria, the greater the likelihood that it might be found reasonable upon review.

  In terms of record-keeping, as pointed out by Dan Michaluk in his comments to my Part Two post, you'll want to retain a hard copy of any information generated by Internet-based searches that meets your search criteria.  The hard copies should be placed on your recruitment file.  As Dan notes:

  "This should keep the decision clean of irrelevant and risky information and should also eliminate any risks of getting into disputes about production of search-related forensic information."

  5.    Have someone other than the decision-maker do the searches

  To ensure that the person who is making the decisions as to who gets hired and who doesn't is only able to base the decision on the best (read: legally sound) and most relevant information it is advisable to insulate him or her from any Internet-based searches being done.  In other words, the decision-maker should never do the searches.  Keeping the decision-maker insulated in this fashion helps insulate the hiring decision from legal criticism.

  Of course, you'll want to ensure that whoever does do the searches is fully apprised of your written process under point #4, and is clear on what they need to do to abide by the law when conducting the searches and determining what information should and shouldn't be passed onto the decision-maker. 

  6.    Be Consistent

  Ensure that you apply the Internet-based background checks equitably to all candidates to whom you've made a job offer.  If you don't, you might find yourself faced with a discrimination claim on that basis alone.  

  Similarly, once you embark on doing these types of background searches either for all or just particular jobs in your workplace (again, keep in mind point #1 above), then do them consistently.  If you do them some times and not others, it begs the question why.  And a human rights commission may well be interested in finding out.

  7.    Be as fair as possible

  I think it would bode well for an employer to give job candidates the opportunity to respond to any concerning information generated by the Internet-based background check.  Given the concerns I raised in Part Two about ensuring the accuracy of information gathered on an Internet-based search, it seems to me that this would not only be fair but a wise approach as well. 

  8.    Document the decision

  Once the Internet-based searches are completed and any pertinent information given to the decision-maker in your organization, ultimately, the final decision on hiring should be set out somewhere in clear terms.  Explain your rationale for choosing a particular candidate, rejecting another.  You want to be prepared to establish why you made the decision(s) you did and to show that inappropriate considerations, specifically prohibited grounds under human rights legislation, played no factor.

  Parting Thoughts

  While I started this series of posts in response to a question from a reader, in the end, my purpose turned out to be much broader than that (if the length of my posts didn't tip you off to that before, now you know!).  Once I started looking into this issue and learned that there were Canadian employers out there already doing these types of searches, it became concerning to me that they may well be doing them without fully understanding their legal risks.

  I hope that I have been able to arm you with information so you know what the issues are (at least as they appear to be at this early stage) and that I have spurred you to think about how to address them if you choose to make the decision to venture into conducting Internet-based searches on your job candidates.  At the very least, you should think first, do second and most importantly, do after you have received the appropriate legal advice specific to your situation.

  Until next time!

   

   

   

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