That having been said, if you are currently a nursing mom or you’ve been a nursing mom and you feel that you have encountered discrimination in the workplace, feel free to post your comments here. If you’re an employer who has been uncertain as to how to address the needs of nursing mothers in your workplaces or you have concerns relating to such accommodations, I’d also invite you to post your comments.   This is an important discussion and I’d be interested in hearing about your thoughts and experiences.

“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.

RT: @fpbowen WFP Survey finds number of women in top jobs at largest companies has stalled:http://bit.ly/bOgn5m

[Not employment related but interesting just the same...] RT: @globeandmail Muslim basketball player fails to overturn headscarf ban http://tgam.ca/HR9

RT @firstreference: An aging workforce: the legal issues (Part I)http://bit.ly/61rkZH

RT @OmarHaRedeye: “The 5 groups that experience the most discrimination in the workplace” http://bit.ly/7dmpKp This shouldn’t be a surprise.

Should religious symbols be banned in the workplace?http://chilp.it/410874

Have a great weekend!

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.

Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu.  The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service.  The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission.  Time will tell how this case ultimately resolves itself.

While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace.  I thought it might be useful here to let you know what I said and expand upon my comments a bit further:

What is H1N1?

Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu").  This virus can, however, make people sick as well.   It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.

How do I deal with H1N1?

1.    Operate based on Fact versus Fear

When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear.  This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical.  The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law. 

In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak.  Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.

2.    Assume that H1N1 constitutes a disability under human rights legislation

Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability.  While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration.  H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light.  Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003. 

It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability.  A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness.  Consider, for example, the man who was barred from the restaurant.  He did not have H1N1, his wife did.  Yet, the restaurant seems to have treated him as though he had the disease.  The H1N1 label had an effect on him anyway.  A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.

In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis. 

3.    Uphold your human rights-related responsibilities to all employees impacted by H1N1

The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.  

Employers must ensure that their workplaces are free of discrimination and harassment.  This means that they need to:

a.    make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1.  In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions.  Here, you would want to follow the lead of public health officials and medical professionals;

b.    make sure that you take appropriate steps to accommodate employees who are disabled by H1N1.  What type of accommodation will be reasonable will depend on the circumstances.  It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;

c.    make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same.  People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness.  This can result in harsh treatment of their colleagues.  Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior. 

Conclusion

While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last.  I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.

Photo credit:

According to the PBS site, the report:

"..tracks the journey to justice for teens [like those whose stories are documented in the show] and examines how the issue impacts hundreds of thousands of teenagers across the country — many of whom don't know how to report workplace abuse, or to even recognize when their bosses cross the line."

While I don't have any statistics in hand to indicate the prevalence of teen sexual harassment in the workplace in Canada, certainly, human rights commissions in this country have it on their radar screen.  The Manitoba Human Rights Commission, for example, has targeted youth for a number of years now by holding annual Youth Conferences designed to ensure youth in Manitoba are adequately educated about what their human rights are and how to go about enforcing them.  Moreover, the Commission has on its website a useful publication entitled "The Rights of Youth: On the Job" which details, among many other issues of importance to youth, how to recognize harassment and what to do if it is being experienced in the workplace.

They think they are waiting for an experiment to begin.  The experimenter walks into the room and introduces two men — one black, one white — posing as fellow participants. After the experimenter leaves the room, the black man stands up, says, "Oh, I forgot my cellphone," and gently bumps the white man's knee as he walks out.

The white man either says nothing, or, "Typical, I hate it when black people do that," or, in the "extreme slur" condition, "clumsy nigger."

Other groups didn't actually experience the event, but they read about it or watched it on a video, and then were asked to predict how they would feel, and which man they would choose as a partner for a later anagram task. 

Although the study's participants were multi-racial, Black participants were not included because the researchers wanted to see how people who didn't belong to the target group at the heart of the study responded to racial slurs.