“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.

Last week I posted about the “great prima facie case debate” that is occurring amongst human rights tribunals, courts and arbitrators regarding when an employee is able to prove a prima facie case of discrimination on the basis of family status.  In other words, in what circumstances can an employee demonstrate, without considering an employer’s defence, that they have been affected adversely in the workplace on the basis of their status as parents, children, etc.?   The conclusion that I reached at the end of the post was that it was still quite uncertain as to what test an employee had to meet to demonstrate this type of discrimination.   That took us up until the end of 2009 — at least based on the cases I had referred to in that post.

In the February 2010 decision of the Alberta Arbitration Board in Alberta (Solicitor General Department) v. Alberta Union of Provincial Employees, 2010 CarswellAlta 742 (text of decision available by subscription only), we get a bit more clarity, at least from the Alberta Arbitration Board’s perspective, as to what a parent is required to show in order to prove that a workplace requirement causes sufficient interference with a parental obligation to their child that it constitutes a prima facie human rights violation.

The Facts

In the Alberta case, the female employee, a correctional officer, filed a grievance against her employer, a Correctional Centre, after her shift schedule was changed resulting in her being faced with child care challenges relating to her eleven year old son.  Prior to the schedule change, the grievor worked day and afternoon shifts only.  It is important to note here that the employee was always technically responsible for working nights, it just so happened that a co-worker volunteered to work nights permanently, resulting in none of the other female officers on the that shift schedule to have to work nights themselves.  But when the officer on permanent nights was re-assigned, management ordered all female officers on the grievor’s schedule to take turns working the night shift.  For the employee, this meant she had to work five sets of night shifts annually for a total of 30 days.

The night shift requirement created challenges for the grievor.   As a single mother, she raised concerns about her ability to arrange care for her eleven year old son at night (the night shift went from 11pm to 7am).  In examining her options, the grievor concluded that she simply could not work the night shift as she did not have available to her consistent child care that she was fully comfortable with.  For example, although she was able to count on her ex-husband for some night time assistance, as he worked for the same employer on a permanent night shift from 7pm to 7am, there were times when their work schedules would conflict.  While the grievor’s mother could also assist, because the mother already provided after school care when the employee worked the afternoon shift, the grievor took the position that there were limits on how much night care she could have her mother assume.  The grievor also had the option of having her son stay with relatives, but she indicated that this arrangement was disruptive and left her son unhappy and anxious.  Over and above the practical challenges of finding night care for her son in order to work the night shift, the employee found herself personally challenged to focus on her work when her child was being cared for anyone other than her ex-husband.  She said she would rather take time off in order to give her the peace of mind that her son was taken care of properly.

The grievor proposed, as a solution to her challenges, that the employer permit the female correctional officers from the three shift schedules (A, B and C) to rotate through the night shift.  She said that this would result in a more fairer assignment of night shift work for all of the women.  Alternatively, she suggested that the night shifts should be shared equally amongst the men and women of her shift schedule (Schedule A), so as to reduce the number of night shifts she, or anyone else, would have to work.  The employer rejected both of these proposals as being operationally unsound.  Regarding the first option, the employer argued that moving employees across Schedules A, B and C in order to have all women work night shift would be expensive and disruptive.  As for the second option, the employer advised that male correctional officers could not be assigned to female units and that this was a best practice backed by research.

The decision

The Board went through many of the cases I had referenced in my previous post, starting with Campbell River and ending with Power Stream.  Ultimately, the Board appears to have adopted a modified version of Campbell River, incorporating, at least subtly, concepts from Power Stream.   Here’s what the Board said:

“From the review of the jurisprudence, the Board concludes that family status discrimination claims based on parental obligations involve a careful assessment both of the parental obligation and the degree of interference with this obligation as a result of a bona fide work requirement.  The Board accepts that all work requirements have some degree of interference with parental obligations.  Absent express public policy, such as that enacted with respect to maternity leave, family status discrimination cannot possibly be interpreted as arising in any situation in which a work requirement results in some interference, no matter how minimal, with a parental obligation.  In order to work, all parents must take some steps on their own to ensure that they can fulfill both their parental obligations and their work commitments.  Part of any examination of whether a prima facie case has been established for family status discrimination must therefore include an analysis of the steps taken by the employee him or herself to balance their worklife responsibilities” (emphasis mine).

And, further:

“With respect to the night shift, in order for the Board to conclude that there was a serious interference with the Grievor’s parental obligations, the Board needs to be satisfied that reasonable alternatives for caring for her son at night were not available to the Grievor.  In this sense, we view the evidentiary burden for establishing a prima facie case for family status discrimination as analogous to the burden on employees asking for accommodation on the baiss of disability.  Such employees have the onus of first establishing, through appropriate evidence, that they have a physical or mental condition that requirs accommodation in their work setting.  In the case of family status, the employee also bears the onus of providing sufficient evidence of the absence of reasonable alternatives for care” (emphasis mine).

With these outlined principles as a backdrop, the Board concluded that the female employee failed to prove that reasonable alternatives for night time care for her son were unavailable because:

• she could have had her son sleep at her ex-husband’s home on at least some of the nights that she had to work but there was no conflict with her ex-husband’s schedule;
• she could have had her son stay with relatives on the nights her ex-husband was unavailable.  While the grievor’s position was that such an arrangement was disruptive to her son and it made him unhappy, she did not provide evidence to show that her son’s well being would be negatively affected if he were to stay with relatives;
• she failed to provide evidence to demonstrate why she could not have her mother or other relatives stay over at her house to care for her son on the nights she had to work;
• she could have hired someone to stay in her home but the employee lead no evidence as to why this option was unavailable or, if available, so expensive as to be unreasonable.

As she could not prove that she had thoroughly explored all reasonable alternatives for finding childcare, the Board determined that the grievor could not make out a prima facie case of discrimination and she was, therefore, not entitled to accommodation by her employer under human rights law.

Thoughts on the case

I would think that employers would like this decision given it latches onto the concept coming out of Power Stream that employees need to demonstrate that they have explored all reasonable forms of self-accommodation before they can claim prima facie discrimination on the basis of family status whenever there is a work-child care conflict triggered by a change in a work-related requirement.  It also maintains the bottom line position from Campbell River that a prima facie case of discrimination based on family status can only be made out where the employee can show a serious interference with a substantial parental obligation.

Certainly, I think it makes good sense for employees to be able to show they have exhausted personal options to find appropriate child care before they look to their employer to resolve a work/child care conflict.  But, I’m not sure I agree with the Board’s assessment that the evidentiary burden established for an employee to prove prima facie discrimination on the basis of family status is analogous to the burden on employees seeking accommodation due to disability.  An employee who is contending a disability requiring a workplace accommodation will most often turn to their doctor or care giver for written information to support the existence of a disability.  Speaking very generally, the doctor’s information is viewed as an objective watermark proving disability.  Once that information is in hand, there is no requirement in human rights law for the employee to show they have done all they can to self-accommodate their disability before requesting employer assistance.  Based on the evolution of the law on the duty to accommodate family status so far, the situation is very different.   An employee cannot turn to some objective entity to say “I need proof that I am a parent who has child care issues.”  Then there is the self-accommodation element which is an add-on not present in relation to any other protected characteristic under human rights legislation.

So, how exactly does an employee prove they have exhausted all of their self-accommodation options?  How does an employer know when they’ve been given sufficient information from their employee to trigger the duty to accommodate family status?  In Campbell River, the employee presented a medical report from her son’s doctor in support of her contention that her attendance to her son’s needs after school was medically necessary for his well being and, as a result, she could not work the shift change being required by her employer.   That failed to sway her employer, though, and the matter was ultimately dealt with in favor of the employee before the BC Court of Appeal.  What about the employee in the Alberta Arbitration Board case?  Would she have needed to bring notes from her ex-husband and her mother to indicate they could not cover child care for some or all of the night shifts?  Would those notes have been believed given they likely would not be considered the objective equivalent of a doctor’s note?  Would she have needed to get them to swear affidavits instead?  Did she need to have her son assessed by a doctor to demonstrate her belief that having him stay with relatives when she worked nights would be a detriment to him?  The questions go on and on (at least in my head!).

Listen — I’m not trying to say that I agree or disagree with the final result of the Alberta case.  I am merely pointing out the issues that employers and employees are going to continue to have to grapple with when dealing with family status discrimination claims based on parental obligations according to current case law.

Now I’d like to hear from you.  What do you think about this decision?  Do you agree with it?  Do you have concerns?  Where do you stand?

Image of “wife and baby” by Ywerd.

Back in 2007, when the body of law relating to the accommodation of family status in the workplace was still in its infancy, I did a post on what the state of the law was at that time.  Recently, I spoke at the Law Society of Manitoba’s Accommodation in the Workplace seminar and addressed my view on where things stand now.   As a result, I thought it a good time to provide you with an update.

In my 2007 post I spoke about the British Columbia Court of Appeal decision in Health Sciences Assn. of British Columbia v. Campbell River & North Island Transition Society (which I’ll refer to, in short form, as “Campbell River”) which established that limitations needed to be set regarding when an employee’s family obligations could trigger human rights protection.  The Court determined that a prima facie case of discrimination on the basis of family status could only be made out in the employment context when an employee could show that:

1. there had been a change in a term or condition of employment imposed by the employer; and
2. the change resulted in a serious interference with a substantial parental or other family duty or obligation.

The Court stressed that a determination of whether a prima facie case of discrimination on the basis of family status could be made out was dependent on the circumstances of each situation.

As I noted in my post back in 2007, while the Campbell River decision ruled the day in British Columbia given that it was rendered by that province’s highest court, some decision makers outside of BC took issue with the Court’s reasoning.  In particular, concerns were raised that what the Campbell River test required an employee to prove before he or she could establish a prima facie case of discrimination on the grounds of family status set the bar too high relative to and too differently from any other protected characteristic covered by human rights legislation.  In the more traditional prima facie case test, a complainant need only show that they have been adversely affected in the workplace, either by having a burden imposed on them or being denied an opportunity, and that this adverse effect can be tied to a protected characteristic (such as age, sex, religion, disability, etc.).

Interestingly, time has not healed all wounds.  Claims that have since been filed by employees either before human rights tribunals or arbitrators in grievance proceedings that they have been discriminated against by their employers on the basis of family status and require accommodation continue to be met with mixed results.  And, those decisions questioning the validity of Campbell River have not let up.

While there isn’t a definitive pattern established yet, it appears as though the Human Rights Tribunal of Ontario is rejecting adoption of the Campbell River test.  In its recent decision in McDonald v. Mid-Huron Roofing, no reference to the Campbell River test was made at all.  Instead, the Tribunal appeared to use the traditional prima facie case test to conclude that an employer’s refusal to allow an employee some additional time away from work to assist his wife in an urgent family situation was discriminatory on the basis of family status.   Ultimately, the Tribunal found that the employer had failed to appropriately consider whether it could provide the employee with additional time away from work and that the employer had failed to show that the employee’s absences up to the time of his termination had caused undue hardship to the company.

Beyond the different approach seemingly being taken by the HRTO to the determination of whether an employee can make out a prima facie case of discrimination on the basis of family status, some further cracks in the Campbell River test are starting to show elsewhere.  In I.B.E.W., Local 636 v. Power Stream Inc., 2009 CarswellOnt 7325 (copy of the decision available by subscription only), the Ontario Arbitration Board appears to have created a modification to the Campbell River analysis.  In particular, Arbitrator Jesin agreed with the prior criticism of Campbell River that it was too restrictive since it only allowed for a finding of discrimination when an employee proved that there was a change in a term or condition of employment imposed by the employer.  He agreed that a change in an employee’s family circumstances could also precipitate a conflict between work and parental obligations.  He stressed that an existing workplace rule that did not accommodate the employee’s change in circumstances may also be found to be discriminatory on the basis of family status in certain situations.   According to this “modified” Campbell River test, the following questions need to be asked in order to determine if a prima facie case of family status discrimination exists when an employee encounters work-family conflict:

1. what are the relevant characteristics establishing the employee’s family status?
2. what are the adverse effects complained of and is it reasonable to expect that [human rights legislation] offers protection against the particular adverse effect of the employer’s action on each employee?
3. what prompted the adverse effect on the employee — a change in the employer’s rule or a change in the characteristics of the employee’s family status?
4. what efforts has the employee made to self-accommodate the conflict [between work and family].  Have they rejected options at self-accommodation that they should reasonably be expected to have made?

Further west, the Alberta Human Rights Panel in a case called Rawleigh v. Canada Safeway recently continues the line of cases that challenge the very validity of the Campbell River test.  In that particular decision, although the Panel applied Campbell River to conclude that the employee had been discriminated against by his employer on the basis of family status and that there was a failure to accommodate, it took a swipe at the BC Court of Appeal’s reasoning in Campbell River. In particular, the Alberta Panel strongly questioned the need to limit the prima facie case test in relation to the accommodation of family status and even went so far as to suggest that the Campbell River test itself may well be discriminatory.

In addition to talking about the cases above, as part of my presentation I also put together what I call a “Case Law Snapshot.  It is in table format and sets out the main cases on the duty to accommodate family status in the workplace that I am aware of that have been decided since Campbell River in 2004.  It breaks the cases down on the basis of whether they followed the Campbell River test or took a different approach.  It will provide you with a better sense of the “great prima facie case debate” I see occurring in the law.  I urge you to have a read.

So, what should you take from the cases at this point?  Here are my current thoughts:

1. Although Campbell River remains the only appellate court authority on the subject of what constitutes prima facie discrimination on the basis of family status, there is a growing body of decisions that give rise to questions about Campbell River’s value as precedent.  It appears that there are three, perhaps four, different approaches forming in the case law — application of the Campbell River test (primarily in BC), application of Campbell River but in protest (like in Rawleigh),  a modified Campbell River test (a la Power Stream) and the traditional approach (as utilized in the McDonald case, above).  For now, it is safe to say that it is still unsettled law as to what test should be applied to determine whether an employee has made out a case of prima facie discrimination;
2. What is clear is that in certain circumstances, employees may be entitled to have important family obligations accommodated by their employers to the point of undue hardship.  These family obligations may extend beyond parent-child relationships as, generally speaking, a broad interpretation of the concept of “family status” itself has been applied across Canada.  So, for example, elder care issues arising from child-parent relationships may also be engaged.  That having been said, it is unlikely that all family-related obligations will be sufficient to equate to “family status”.  If a person’s situation is commonplace or based on preference, as opposed to it being mandatory or essential, the less a likelihood that a duty to accommodate on the part of the employer will be triggered;
3. It would appear that the duty to accommodate can be triggered not only as a result of a change made in workplace terms and conditions by an employer but also as a result of a change in an employee’s circumstances that then creates a conflict for the employee in meeting a work-related obligation (see the Power Stream decision noted above);
4. It is advisable that employers do not reject an employee’s request for accommodation of family status out-of-hand.  Serious consideration should be given to all requests by conducting an examination of the underlying facts and circumstances.  This would include determining from the employee what steps they have taken to resolve their work-family conflict themselves.  An assessment as to whether a denial of the request could constitute discrimination should be made and then it should be determined if the request can be accommodated.  This may require flexibility in workplace rules, policies or practices.
5. When considering making changes to terms or conditions of employment, employers should be aware that the changes may impact unique or mandatory family obligations of employees.  If at all possible, accommodation should be built into the changes to allow for flexibility in particular circumstances.

Stay tuned for my next post where I’ll be discussing a recent decision from the Alberta Arbitration Board which tries to come to grips with the great prima facie case debate I’ve outlined above.

By the way, you’re receiving this post from my freshly re-designed blog (yes, I’ve redesiged it again, if you’re keeping track!).  This time, I think I’ve got it right and I thank Skunkworks Creative Group for their hard work.  Please have a gander and let me know your thoughts!

Image of parent and child, above, by vivekchugh.

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!

A number of years ago now, my husband and I started an annual tradition of reflecting on what we had accomplished individually and as a family over the course of the past year, what we were thankful for overall, and then we set out goals for the year that was ahead.  We set aside time in our calendars just before New Years' Eve, head out to a local restaurant for breakfast, I bring along my laptop and we map out where we've been, where we wish to go and what we wish to do in order to feel, by the end of the year, that we have made a contribution to our family and our community.  Two years ago, when our daughters turned 4, we decided to incorporate them into our annual routine.  After my husband and I have had our "team meeting" we then sit down with each of our girls, ask them what they were thankful for over the past year and what they would like to accomplish in the upcoming year.   By undertaking this exercise for ourselves and with our daughters, we believe that this helps, on the one hand, to ensure we take the time to appreciate the good things that have happened to us and, on the other hand, to establish things we can do to improve ourselves, our lives and the lives of others as we move forward in life.

So, as I gear up for my big meetings with my husband and my daughters next week, I wanted to say to all of you a big thank you for reading my posts, forwarding them on to others you think may benefit from what I have to say and for taking action in your workplaces based on what you have learned here.  I appreciate and enjoy the feedback that many of you have given me since I started this blog over two years ago.  I haven't had as much time this year to write as I have in the past, which has disappointed me to some extent.  But, my business has grown leaps and bounds in 2009 and so, while I wish I had written more, I have been very busy working directly with a wide variety of workplaces in Manitoba and elsewhere in Canada.  To those of you who have chosen to work with me this year I send a heartfelt thanks and look forward to being able to provide you with continued help in the New Year. 

I wish each and every one of you the very best health and happiness as we end 2009 and move into 2010.

Take care!

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.

Molly DiBianca, a lawyer at US law firm Young Conaway Stargatt & Taylor LLC and contributor to the engaging Delaware Employment Law Blog is one of those fabulous list-makers.  She recently posted her list of the Top 100 Employment Law Blogs across the legal blogosphere (so, it includes US and Canadian law blogs, and, actually lists 110 blogs — so that's why the "ish" reference in my title!).  As is usually the case when I scan through lists like these, I always learn of a new and interesting blog to add to my regular reading.  It was very kind of Molly to include this blog on her list.  Have a look!

Michael Lynk, Professor in the Faculty of Law at The University of Western and one of the conference organizers, provided me with a brief overview of the conference:

"Madam Justice Rosalie Abella of the Supreme Court of Canada, who authored the report of the Royal Commission on Equality in Employment in 1984, will be delivering the Koskie Minsky Lecture on Labour Law on Friday, 30 October, reflecting on employment equity and the impact of her report. A reception and dinner will follow.

 

The following day, Heenan Blaikie and Western Law are co-sponsoring the labour law conference, which will continue the assessment of how well employment equity has fared in Canada.  The conference will host four panels of legal and industrial relations scholars, lawyers, and policy advisors who will critically examine the successes and shortcomings of employment equity, both here in Canada and abroad."

 

 

Have a look at the Conference brochure for further details and how to register.

The Conference will be of interest to academics, lawyers, union officials, industrial relations managers, policy advisors and consultants, human rights specialists, law students, industrial relations students and anyone with an interest in contemporary workplace issues.

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.