Calm amidst the storm

Reflection rooms provide privacy, peace and religious accommodation at work

By Sarah Dobson

A few years ago, law firm Stikeman Elliott in Toronto tried to accommodate law students and lawyers who prayed during work hours. Locks were installed on office doors and those without offices were given offices for privacy.

But it became an administrative and logistical challenge as people moved around, so the firm decided to provide a refection room instead. Luckily, there was unused space that could be converted with a coffee table, a couple of comfortable chairs, non-denominational art on the walls and a cupboard to store prayer mats. A sign was also put up indicating which wall faces east.

The room is always open, to every employee, and is used on a drop-in basis for any reason, such as quiet contemplation, says Ritu Bhasin, director of student and associate programs at the firm, which does not monitor the room’s popularity.

“What is more important than numbers is the fact it exists, it is available,” she says. “It sends a message to our people that we are committed to making the environment be as supportive and inclusive as possible and we do understand people have beliefs that aren’t outside of work hours, that are incorporated into their being throughout the day and we want to be able to facilitate that.”

Stikeman Elliott also provides a washing basin in a private bathroom that can be used to perform ablutions. And the accommodation extends to mealtimes and gatherings, as foods are offered that adhere to dietary or religious needs, such as presenting pork on a separate plate or ordering kosher meals.

“Religious and cultural diversity is something we actually work on quite a bit,” says Bhasin. “Over the last several years, as our lawyer and student group has become increasingly more diverse, we have had, first of all, to be proactive in making sure that we have people management strategies that reflect the diversity. But also, in dialoguing with our students and lawyers, we are able to learn about other things we could be working on.”

Canadian workplaces were designed for able-bodied, white males with an Anglo Saxon, Christian background who took time off to celebrate Christmas or Easter, says Sandeep Tatla, founder and managing principle at Tatla Diversity Group in Mississauga, Ont.

“Workplaces really haven’t been designed for these people coming in with very different religious holidays, religious needs,” she says.

But the demographics and diversity of the workplace are changing and Canada will rely more heavily on immigrant labour to fulfill work demands, particularly from Asia and the Middle East where there is more religious diversity.

“There’s the non-dominant religions present: Islam, Hinduism, Sikhism, Buddhism, Jainism, a bunch of different faiths. They were present in our workplaces before but they’re going to be present in our workplaces in a much more significant number,” she says. “That’s why it’s coming to the forefront of being addressed.”

A good employer will understand the workplace is going to be diverse and the best candidates aren’t always going to be from the once dominant groups, which don’t have the same norms and customs, she says. And there could even be greater productivity as employees provided with accommodation such as a reflection room don’t require as much time off to observe.

“I always liken it to… when we first started dealing with issues of disability in the workplace, people didn’t understand them. Now it just goes without saying,” says Tatla. “That’s hopefully where we’ll be with religious accommodation in the next little while.”

Religion is not yet a huge area of request for accommodation — compared to family status and disability — but down the road, there will be a significant shift in the workplace with more requests for recognition beyond the Christian-based holidays, says Donna Seale, a human rights lawyer and educator based in Oakbank, Man.

“That’s going to be something that employers are going to see more and more because our population is certainly changing, not only in terms of aging population but our immigration is primarily coming from areas like Asia now and the Middle East and they’re typically younger people.”

KPMG’s reflection room an ‘easy sell’

A couple of years ago, KPMG was asked to put in a reflection room by some Muslim employees who wanted to have a space where they could pray during the day. Previously they had to travel 20 minutes for five minutes of prayer, “so it was a pretty easy sell,” says Michael Bach, Toronto-based director of diversity, equity and inclusion at the audit, tax and advisory firm.

KPMG is just completing its first religious accommodation policy.

“We’re a big organization and we didn’t want to find that there were things happening differently across the country in different offices,” he says. “We wanted everyone who would be potentially affected to know where the firm stood on it.”

The reflection rooms are now in several offices across the country and can be booked through Microsoft Outlook. The space is not monitored, for privacy reasons, and people can use it as they see fit. The rooms are busier during larger high holidays, such as Ramadan, and there is a Muslim group that meets at several of the offices three times a day, he says.

“We’re getting good enough usage that can I justify it to the leadership,” says Bach. “It’s not just about usage — it’s about the symbolism of it.”

Most employees at KPMG don’t work a traditional 40-hour workweek, so giving someone one half-hour in the middle of the day can make them far more engaged in their work, especially if they don’t have to hide it, he says.

“It’s always been about accommodating and engaging our people, attracting and retaining the best and the brightest. We want everyone to come to work and feel they can do their job,” says Bach. “So if we can do something as simple as providing a reflection room, it’s really simple — then our people are more engaged, therefore, they’re more productive.”

After the interfaith rooms were publicized, an employee suggested a Christian prayer group be started.

“I fully supported that,” he says. “There is a population of Christians who take their faith far more seriously than those who go to church on Sunday. It’s important for them to have that outlet and it’s important for the firm to support it.”

The most common requests for accommodation fall into two categories, one being scheduling-related issues to participate in a faith-based holiday or activity that doesn’t necessarily coincide with Christian-based days off, and time off during the workday itself for things such as prayer.

Lack of awareness
leads to conflict

Conflict that arises between an employee and employer around this issue is often due to a lack of awareness, says Tatla. But two years ago, the law in Ontario was clarified on the duty to pay for time off for religious holidays, so there have been fewer disputes.

“The challenges really are more practical, just a misunderstanding, not understanding the duty of employers and the responsibility of employees, when it comes to accommodation,” she says.

Employers should pause, reflect and then respond, says Seale, and seek input from workers.

“The conflict arises always when the employer responds in a knee-jerk fashion. In this area in particular, that seems to happen more and more often because we lack understanding of the requirements of others’ religion,” she says. “It may sound like this enormous issue for you but (the employees) might have a very simple solution and the scheduling issue that seemed so enormous before now seems very insignificant in the big picture.”

Employers need to take a more proactive approach and try to make rules as inclusive as possible, says Seale, citing a 2009 case in which a Muslim security guard in training requested one hour off each Friday to pray. The company had plenty of shifts available but, instead, ceased his training and said he would not be hired. A court decided he should be awarded $5,000 in general damages and $2,500 in lost wages.

“If (the employer) had stepped back and reflected, they could easily accommodate his requests,” she says. “They didn’t, they hadn’t really taken the time to look at his request and they couldn’t even prove that they had even come close to an undue hardship argument.”

Beyond that, employers need to communicate what is involved because other employees may see it as unfair some people get to leave at certain times of the day or reschedule breaks. Employers struggle at times because other employees may question why a reflection room cannot also be used for fitness classes, for example.

“So you have to really clearly let employers know, ‘You don’t know when a person’s religious observance may occur,’” says Tatla.

Any concern around abuse of the provision is a misguided fear, and if this approach is managed appropriately, employees shouldn’t take advantage of their rights, she says.

“For the most part, most employees don’t abuse those types of things.”

TIPS FOR EMPLOYERS

Dealing with an accommodation request

The following steps will guide employers dealing with employee requests to accommodate religious observance needs in the workplace.

Put it in writing: Ensure a request for accommodation of a religious observance is in writing and it explains why accommodation is required (the nature of the sincerely held belief and nexus to religion) and what measures of accommodation are required.

Reply to the request within a reasonable time: Acknowledge the request has been received and management is reviewing it. Also, confirm the organization’s general commitment to accommodation, provide an outline of the process for dealing with the request and a time frame for a final decision — and deal in good faith and respect the dignity of the employee making the request.

If needed, request further information from the employee: Seek clarification or further details to investigate the employee’s need for accommodation to determine the legitimacy of the request or determine an adequate scope of accommodation.

Assess the need for accommodation — dress code, scheduling, religious leave — based on the religious observance needs of the employee: There are a few questions to answer here, such as: What is the exact nature of the religious observance? What religious holy day(s) is the employee requesting off? Are there health and safety factors involved? How does the request conflict with the regular work schedule? What measures can be taken to accommodate the person?

Consult with stakeholders: Talk with all relevant parties during the accommodation assessment process (such as the employee and union, if applicable).

Denying accommodation

If accommodation is not possible because of undue hardship, explain this clearly to the person concerned. Make sure the details are provided in writing and be aware the employee may request details of the cost of accommodation if undue hardship is the reason for denial of accommodation.

(c) Copyright Thomson Reuters Canada Ltd., July 12, 2010 issue, Toronto, Ontario. 1-800-387-5164.  Web:www.hrreporter.com

In some Canadian jurisdictions, anti-nepotism policies, or policies that are designed to exclude family members from the workplace just because they are family members, will automatically be considered prima facie discriminatory on the basis of family status or marital status (which ground applies will depend on the circumstances).  [I say some, but not all, jurisdictions because in Ontario, for example, an exception has been written into the Ontario Human Rights Code to permit such policies in particular circumstances].

If, however, you happen to run a business in a province like Manitoba where no such exception applies, and you wish to establish such a policy in your workplace you’re going to have to be able to demonstrate the policy is a bona fide occupational requirement.  Or, putting it very simply, that the policy is clearly necessary for your particular business.

So, how exactly do you figure out if your anti-nepotism policy (or the one you’re wishing to implement) is going to pass the mustard with a human rights commission?  Well, there are two cases I’ve come across that provide some helpful guidance on that front.  I thought I’d pass them along — why keep all this interesting stuff to myself??  It’s a longer post than usual, but hope that you will find it well worth the read.

Case #1:  Greater Victoria Public Library v. Canadian Union of Public Employees, Local 410 (Migliorini Grievance) (2004), 135 L.A.C. (4th) 38 (B.C.C.A.A.) (Jackson, Arbitrator)

FACTS:

• two sisters worked for the Greater Victoria Public Library.  The grievor was an auxiliary employee while her sister was a permanent employee.  Both were members of CUPE.
• In 1992, Library management decided that as it was becoming a larger institution and there were more and more family members on staff it wanted to be fair to everyone in how family relationships were handled.  As a publicly funded organization, Library management was concerned about the “significant potential for abuse, involving monetary compensation” if family members were allowed to be directly supervised by a close relative.  A Family Members Hiring Policy was established.  It provided that relatives of board members and of current library employees could be hired but not where there was a supervisory/subordinate relationship.  In such an instance, one of the employees would be “transferred to a comparable position in another department at the first opportunity.”
• The grievor worked for the Library for a number of years as a page and was a valued employee.  In 2001, she and her sister (who was a branch clerk) were both employees at a particular branch of the Library.  The grievor worked 30 hours a week Monday to Friday.
• The Branch Clerk Supervisor position was posted on a temporary basis to fill a maternity leave from September 2001 to June 2002.  The Supervisor was responsible for, among other things, scheduling the pages. The grievor’s sister applied for the position and was successful.  Her elevation to supervisor placed her and the grievor in a supervisory/subordinate relationship.
• In early September, the grievor was advised that, pursuant to the Policy, she would be transferred.  While efforts were made to find a suitable alternate schedule of hours for the grievor at another location, ultimately what was offered was a reduced number of hours involving work at two different library branches, one of which involved potentially physically difficult work for the grievor due to a previous workplace injury as well as increased travel.  The grievor was unhappy with the efforts made to find her alternative work, she felt she had been treated unfairly and she declined to accept the Library’s offer.  The grievor stopped working her usual schedule at the branch her sister worked at around September 20.  When she eventually did return to work it was at a few different branches of the library and on a schedule that she, for the most part, had arranged through her own efforts.
• Due to what she perceived as unfairness to the grievor, the sister resigned her position of Branch Supervisor.
• The grievor filed a grievance alleging that the Library’s Policy discriminated against her on the basis of family status.

DECISION:

• The arbitrator determined that the grievor was transferred simply because of her family status and that this constituted prima facie discrimination.
• The arbitrator conducted a review of previous cases that examined the application of anti-nepotism policies in the employment context, including the Supreme Court of Canada’s decision in Brossard and came to the following conclusions:
  • an anti-nepotism policy that has been unilaterally implemented by an employer and not agreed to by the union must be shown to be reasonable;
  • the fact that two employees are related is not enough to justify an anti-nepotism policy.  The relationship must be relevant to the ability of one of the individuals to perform their job duties;
  • in order to determine whether an anti-nepotism policy that is discriminatory on its face can be saved as a bona fide occupational qualification (“BFOQ”), the following questions should be asked:
    1. is the anti-nepotism policy, which was designed to avoid conflicts of interest, imposed honestly and in good faith?
    2. is the requirement that there be an absence of a conflict of interest between employees reasonably necessary to ensure the efficient and economic performance of the work?  The arbitrator focused on two criterion as needing to be satisfied in order to answer this question in the affirmative:
    • • whether the absence of real, potential or apparent conflicts of interest which the policy is designed to address is rationally connected to the employment;
      • whether the policy is properly designed to ensure it is met without placing an undue burden on family members to whom the policy applies.
  • An anti-nepotism policy that is justified as a bona fide occupational requirement may still be found to be discriminatory if it is applied in an overly rigid and unreasonable way. The particular circumstances of each situation must be looked at closely in order to determine how the policy should be applied in those circumstances and in light of the objective of ensuring conflicts of interest are avoided.  The employer must be able to show that it has accommodated the person to whom the policy applies to the point of undue hardship.
  • In applying the above tests to the grievor’s situation, the arbitrator determined that the policy could be justified as a BFOQ because:
    • The policy was imposed honestly and in good faith;
    • The policy was shown to be reasonably necessary:
    • There was a rational connection between the absence of a conflict of interest or an abuse of power for any supervisory employees in the performance of their duties and the Library’s desire to ensure it had fair employment practices and sound financial internal control procedures;
    • The policy was designed to limit its impact on the family members to whom the policy applied by: not excluding family members from employment with the Library; applying only to supervisory/subordinate relationships; simply requiring a transfer of one of the employees to another position rather than outright termination; protecting the transferred employee by requiring the new position to be comparable to the previous position and by recognizing it may take time to find such a position by only mandating a transfer “at the first opportunity”
  • However, the arbitrator further concluded that the policy was applied in a discriminatory manner in relation to the grievor because:
    • the employer rushed to transfer the grievor immediately rather than wait to the “first opportunity” to find her a position that was comparable in terms of hours of work, rates of pay and work schedule.  Overall, there was a failure on the part of the employer to make every possible effort and explore every possible option in an attempt to accommodate the grievor to the point of undue hardship;
    • the employer could have accommodated the grievor on a short-term basis by temporarily placing responsibility for any decisions about her scheduling, work assignments or direction in the hands of other senior employees at the branch;
    • the employer could have accommodated the grievor on a short-term basis by allowing the sisters to work together until a comparable position was found for the grievor.  The evidence showed that the scheduling of the pages was done by a formula rather than by the exercise of the Supervisor’s discretion.
  • The arbitrator held that the grievor was entitled to compensation representing the difference between wages she received after being taken off shift from the branch she worked at with her sister and wages she would have received had she remained working at that same branch.  The arbitrator retained jurisdiction to quantify general damages for violation of the grievor’s human rights if the parties were unable to agree on amount.

Case #2: 502798 N.B. Inc. v. New Brunswick (Human Rights Comm.) 2008 NBQB 390, aff’g in part (2007), CHRR Doc. 07-742 (N.B. Bd. Inq.)

FACTS:

• male employee was hired in April 2001 to work as a sales manager for employer, a waste management company that supplied portable toilets and performed septic tank services.  Male employee’s job required him to develop business amongst existing and new clients.  He could earn bonuses based on his sales figures.
• in January 2002, male employee became romantically involved with female office manager.  They moved in together a month later.  Although their relationship was common knowledge, at no time did the employer advise either the male employee or the female office manager that their employment might be in jeopardy as a result of their relationship.
• In September 2002, male employee was fired due to his common-law relationship with the office manager.  Employer concluded that because female manager was one of two financial control officers and was privy to confidential financial information, that placed her in a conflict of interest with the male employee as one of her duties was to input data regarding sales which were linked to employee bonuses.  Employer was of the view that the marriage-like relationship between the male employee and the manager was not an acceptable business practice and created an unacceptable business and financial risk.
• Male employee filed a complaint of discrimination on the basis of marital status.
• The New Brunswick Board of Inquiry concluded that a prima facie case of discrimination had been made out because:
  • Although living in a common-law relationship for only a short period of time, the employees in question were living in a relationship contemplated by the words “marital status” in the New Brunswick Human Rights Act;
  • The male employee was treated differently than other employees and terminated as a result of his relationship with the female manager and, as a result, was discriminated against on the basis of marital status
  • In applying the Meiorin test to determine if the discrimination was justified, the Board determined that the employer was unable to meet the test because:
    • The employer’s standard was that the female manager could not enter into a common law relationship with an employee due to the confidential nature of her position.  This standard was not rationally connected to the performance of the employees’ jobs;
    • There was no bad faith on the part of the employer in implementing its standard;
    • The standard was not reasonably necessary to accomplish the work-related purpose because the employer “overlooked relatively simple checks and balances” that could have been put in place to protect the business.  For example, the employer’s General Manager could have been asked to review the input of data relating to bonuses that the male employee might have been entitled to.
    • The Board ordered the employer to pay the male employee $2,000 in general damages, write the male employee a letter of apology and to participate in a one-day training course with the Human Rights Commission on the duty to accommodate.
    • The employer appealed the decision to the Court of Queen’s Bench.

DECISION:

• The Court found that the Board ruled correctly that the male employee and female manager were living in a common-law relationship and protected from discrimination on the basis of marital status;
• The Court disagreed with the Board’s analysis of the first step of the Meiorin test, ruling that the workplace standard at issue was to limit access to confidential information and to avoid creating a situation where the female manager could possibly be placed in a position of conflict between the interests of her employer and the interests of the male employee, who she was in a relationship with.  The purpose of the standard was identified as being to avoid unacceptable business and financial risks.  The standard was found to be rationally connected to the performance of the female manager’s job as her work involved inputting information that formed part of the basis on which the male employee’s bonus was calculated;
• Despite this error, the Court agreed with the Board’s overall conclusion that the employer could have accommodated the marital relationship here without incurring undue hardship.  As the General Manager already reviewed the female manager’s work, he could simply have specifically reviewed any data that would have affected the male employee’s bonuses.
• The Court upheld the damage award and the requirement of an apology letter but found that ordering the one-day training course was inappropriate.

WHAT TO TAKE FROM THE CASES:

1. The creation of anti-nepotism policies should be carefully considered by employers before they are implemented given their application will always give rise to a prima facie case of discrimination.
2. The fact that two employees are related will not be enough to justify application of an anti-nepotism policy.  The family or marital relationship in question must be relevant to the ability of one of the related individuals to perform his or her job duties.
3. Anti-nepotism policies should be designed to limit the impact on the affected family member.  A policy that overly favors the employer’s interests will not stand up to scrutiny.
4. Employers must be prepared to show that when they applied the policy, they gave consideration to the particular circumstances of the affected employee and they accommodated the affected employee to the point of undue hardship.  Rigid application of an anti-nepotism policy will cause an otherwise justified policy to fail.

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.

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.

The Facts:

The complainant, a 51 year old male, applied for a job with the respondent, a not-for-profit corporation which operates a seniors residence.  During his job interview with the manager of the seniors residence, the complainant disclosed that he had been twice convicted in the past for impaired driving but no longer had a drinking problem.  The manager told him this was not a concern given he was not required to have a driver’s licence for the job.   The complainant was hired, subject to a probationary period of six months, and required to sign an employment agreement.  This agreement provided that the complainant would obtain a criminal record check from the proper authorities.  The manager sought the criminal record check because, as a result of his duties, the complainant would be given a pass key to enter the suites of the seniors in the residence and do maintenance work.  Until he obtained a satisfactory criminal record check, the manager assigned another employee to do suite maintenance work.  While he was only doing part of his job at the time, the employer paid him full-time wages.

A few days after his hiring, the complainant requested a criminal record search from the police.  He received a report showing that he had a record with both the Winnipeg police and the national repository maintained by the RCMP.  The complainant told the manager about these results and she asked him the reason for the record with the RCMP, a question he did not have the answer to.

The manager wrote a letter to the complainant dated December 7, 2006 requesting a transcript of the convictions.  Although the complainant had indicated that it would take 150 days to get such a transcript, he was only given until December 31 to obtain the information.   In addition to the transcript request, the letter went on to detail the manager’s concerns about the complainant’s performance to date.  She felt that he was not putting sufficient effort into doing his daily duties.  She pointed out that he was being paid full-time even though he was only performing part of his job given the delay in obtaining a satisfactory criminal record check.

On December 14, 2006, and prior to the complainant obtaining a transcript of his criminal record, the complainant was advised that he was dismissed for poor performance.

The complainant contended that the respondent had discriminated against him on the basis of criminal record in two ways.  First, by requiring him to produce a transcript of his criminal record within a deadline that was impossible to meet as a condition of his continuing employment.  Second, by dismissing him before the time limit expired.  The respondent took the position that the complainant was dismissed due to inadequate job performance.

DECISION:

The adjudicator commenced his decision by briefly examining the issue of whether discrimination on the basis of a criminal record is actually covered by the Manitoba Human Rights Code.   “Criminal record” is not set out as a specific protected characteristic in the Code. Noting that he did not have the benefit of full argument for both parties to the complaint, the adjudicator concluded that for the purposes of this particular case he was prepared to accept that persons with criminal records could fall within section 9(1)(a) of the Code, a provision setting out a general definition of discrimination unrelated to any of the protected characteristics.  (For more on this issue, see my post “Clearing the air: criminal records, employment and the Manitoba Human Rights Code” ).

The adjudicator then went on to consider whether, based on the facts of this case, the respondent had discriminated against the complainant on the basis of his criminal record.  He found as follows:

• in relation to the general issue of whether the complainant’s criminal record was a factor in the respondent’s decision to terminate his employment, the adjudicator concluded that the respondent fired the complainant on the basis of his work performance only.  Whether he had a criminal record or not was found to play no role whatsoever in their decision.  The complainant was therefore treated on the basis of his personal merits.
• in relation to the December 7 letter specifically, the adjudicator did find that the complainant made out a prima facie case of discrimination.  The respondent gave the complainant an ultimatum to produce a transcript of his criminal record by December 31 or he would lose his job.  Given that the expert evidence at the hearing was that it could take 3 to 4 weeks to obtain a transcript from the Winnipeg police and 3 to 5 months to obtain a transcript from the RCMP’s repository, the respondent’s December 31 deadline made it impossible for the complainant, a person with a criminal record, to meet the condition and continue in his employment.
• On the issue of whether the respondent could demonstrate that the requirement of a satisfactory criminal record check was a bona fide occupational requirement, the adjudicator sided with the employer because:
  • the respondent was able to show that the transcript request was rationally connected to the job in question and adopted in good faith given that the complainant would be entering the suites of elderly residents who were vulnerable to theft and fraud;
  • as criminal record was not listed in section 9(2) of the Code as a protected characteristic and since the Code’s reasonable accommodation provision only applied to section 9(2) characteristics, the adjudicator concluded that the respondent did not have a duty to accommodate the complainant by allowing him time to obtain the record transcript.
  • Alternatively, the adjudicator concluded that more weight should be given to the potential hardship to an employer when considering the duty to accommodate in relation to alleged discrimination on the basis of criminal record.  On this basis, the conclusion was reached that it was not reasonable to expect the respondent to continue paying the complainant a full-time salary for only part-time work while awaiting the criminal record transcript which, due to no fault of the employer or the employee, would take a significant amount of time.  [It should be noted that evidence at the hearing suggested that a new system of searching criminal records in the national repository was introduced in 2008, after this complaint arose, reducing the turn-around time to one to six weeks].

WHAT TO TAKE FROM THIS CASE:

1. discrimination on the basis of a criminal record is likely covered by the Manitoba Human Rights Code;
2. if an employee can make out a prima facie case of discrimination on the basis of criminal record due to an employer’s requirement for the criminal record check or the rules that need to be followed for that criminal record check to be provided, an employer will need to demonstrate that the requirement of a satisfactory criminal record check is a bona fide occupational qualification;
3. in relation to proving a bona fide occupational qualification, it appears that on the basis of the wording of the Manitoba Code, an employer may not need to show that it has accommodated an employee alleging discrimination on the basis of criminal record to the point of undue hardship or, alternatively, that a reduced hardship test will be applied;
4. Regardless, employers are best advised to ensure that they are treating employees (or job applicants) with criminal records on the basis of personal merits relating to the job in question rather than on assumption or stereotype.

"…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.

In Tofflemire v. Metro (Windsor) Enterprises Inc., the Human Rights Tribunal of Ontario examined the efforts made by a food and drink services company to accommodate a long-serving employee upon his return-to-work after having a heart transplant.  The Tribunal determined that the company's efforts were woefully inadequate and awarded damages to the employee as a result.

The Facts

Mr. Tofflemire began working for Metro Enterprises in 1981.  His work involved driving a mobile catering truck on designated routes selling food and drinks at construction job sites.  Mr. Tofflemire also happened to have a history of heart-related problems and required modification to his job from April to September 2006, which the company provided. 

In mid-September 2006, Mr. Tofflemire left work to have a heart transplant, which ultimately took place in June 2007.  While he was recovering from his surgery, Mr. Tofflemire maintained contact with his employer and Metro expressed the desire to see their employee return to work. 

In March 2008, Metro wrote to Mr. Tofflemire's doctor asking him to identify which functions of the mobile catering job Mr. Tofflemire could perform.  The doctor advised that the employee would require a modification to his duties that would limit him from lifting no more than 10-15 pounds initially but then Mr. Tofflemire could increase the lifting weight as he was able to tolerate it.  Further, the doctor recommended the following return-to-work schedule:

• initial return-to-work for 2 hours per day for one month;
• move to four hours a day for a further month until Mr. Tofflemire was able to work a full eight hour day.

Mr. Tofflemire returned to work on April 7, 2008.  He worked two hours a day for one week in the stock-room.  He next returned to work on June 9, 2008 and worked in the stock room for two hours a day for a period of two weeks.  The employer then took the position that there was no further available work for Mr. Tofflemire in the stock room. 

So, Mr. Tofflemire expressed a desire to be transferred to the company's vending machine division which would involve supplying food and drinks to vending machines at a number of locations. He held the view that the vending machine position would be less stressful than his catering truck position.  There were six permanent jobs in the vending division, all filled by long term employees.  There was, however, a summertime replacement position held by a person who was hired at the beginning of the summer of 2008 and, given Mr. Tofflemire's seniority, he knew he could bump this person.  Mr. Tofflemire was fully aware that this was a temporary position but he was prepared to do the job for that temporary time period and then resume discussions with Metro about how he could be accommodate further after the job ended.  Mr. Tofflemire obtained a letter from his doctor stating that by the end of June 2008, he was medically cleared to work a 7 hour day.

In early July 2008, Mr. Tofflemire met with his employer to discuss his return to work.  During the meeting, Mr. Tofflemire said he was told by the company's President that the vending division had no job for him and that he would have to go back to the catering division.  The President recalled that the company had, instead, asked Mr. Tofflemire to provide a functional analysis form to indicate he was capable of carrying out the job functions of the vending position but this was never provided.  Mr. Tofflemire denied being asked to complete such a form.

On July 27, he filed a grievance alleging that the company had not reinstated his employment even though he had been cleared to return to work by his doctor.  The next day, the company wrote to Mr. Tofflemire offering him a customized seven hour per day mobile catering route.  During the grievance process, the company indicated that they did not want to assign Mr. Tofflemire to any position in the vending division.  Ultimately, the union concluded that Metro's job offer of the modified catering position was reasonable in the circumstances.

On July 31, Mr. Tofflemire wrote to his employer to say he would consider the proposed job offer after seeing his doctor on August 5 and that he would be in contact with them the week of August 11.  On August 5, Mr. Tofflemire's doctor wrote to Metro advising that Mr. Tofflemire should neither take on a job that required 10 hour days nor should the job involve long periods of exposure to the sun (as long exposure to the sun increased the risk of skin cancer in transplant patients).

Subsequently, the company's President met with Mr. Tofflemire's union representative.  But, the President simply advised that transfers between divisions were not possible.

On August 18, 2008, the employer wrote to Mr. Tofflemire to state that they had not heard anything from him.  They advised that they were taking his lack of response to mean that he had turned down their job offer, was no longer seeking his job, seniority or other rights and, as a result, they considered his file to be closed.  Metro did not, however, take steps to formally sever Mr. Tofflemire's employment after sending this letter and at no point issued a Record of Employment.

Mr. Tofflemire alleged that Metro Enterprises and its President, in his personal capacity, discriminated against him in employment on the basis of disability in that it failed to provide him with reasonable accommodation when he sought to return to work following his surgery.  He also contended that the failure of Metro to issue a Record of Employment was also discriminatory as it deprived him of his rights to collect termination and severance pay under Ontario's Employment Standards Act.

The company and its President asserted that its July proposal to have Mr. Tofflemire return to a modified mobile catering route position was reasonable accommodation.  It was Metro's view that the job had shortened hours (7 hours), was less stressful and although it required Mr. Tofflemire to be outside that did not necessarily mean he would be exposed to an undue amount of sun as he could use sunscreen, wear protective clothing and park his truck in a shady area.  The company, in essence, argued that it would be an undue hardship for it to place Mr. Tofflemire in the vending division.  It was pointed out that transfers into the vending division had become less attractive over time because layoffs from the vending division would be done on a seniority basis and someone coming into that division could lose their job if they were junior to current members in the vending division (due to the vending division operating under a different collective agreement).  Concern was expressed that existing vending division employees might come to resent the accommodation of Mr. Tofflemire in that division.  The company noted that it was also at the point of downsizing the vending division from six to three positions.  Finally, the company took the position that there was a general economic downturn that was impacting the company's financial status and if they had to create another position in the vending division to accommodate Mr. Tofflemire, it would have cost $53,000 in salary at a time when the company was losing money. 

The Decision

The Tribunal concluded that if the company had not received the August 5 doctor's letter indicating that Mr. Tofflemire needed to avoid long term sun exposure, this complaint would not have succeeded.  The Tribunal indicated that as the proposed mobile catering position included modifications regarding the length of hours to be worked (reducing them from 10 hours to 7) coupled with changes to decrease the stress of the job it would have, absent the doctor's letter, met the duty to accommodate.  But, the doctor's letter was found to have changed Mr. Tofflemire's circumstances and required the company to re-examine its accommodation proposal.  However, after receiving the August 5 doctor's letter, the Tribunal determined that the company did little to reconsider its position, failed to meet with Mr. Tofflemire and, instead, wrote its August 18 letter saying they were closing his file. 

According to the adjudicator:

"…the respondents did not want to reconsider whether their offer of a modified catering job was reasonable or to reconsider the applicant for any position in the vending division because they believed this might entail further difficulties for them.  I believe that they felt their best strategy to manage the situation was to end the discussion on accommodation with the applicant, as demonstrated by their August 18 letter."

The Tribunal rejected the company's argument of undue hardship pointing out that all of the concerns that had been raised related to a permanent transfer of Mr. Tofflemire into the vending division.  However, Mr. Tofflemire was only seeking to be considered for the temporary summer job available in that division.  The company had not raised any undue hardship issues relating to that proposal.  Concluding that the company and its President had made inadequate efforts to reconsider the ability to accommodate Mr. Tofflemire in light of the August 5 doctor's letter, the Tribunal pointed out:

"A reasonable accommodation in these circumstances could well have been to place the applicant in the temporary summer position.  It is true that this would have only been a short term solution but it was an alternative the respondents did not meaningfully pursue after receiving the August 5 letter.  In taking no substantive action the respondents failed both in terms of procedure and substance to meet their duty to accommodate the applicant." (emphasis added)

In terms of remedy, the Tribunal ordered that the company and its President pay Mr. Tofflemire $7,500 in general damages and, in addition, lost wages.  The company was also ordered to resolve his employment status and provide any entitlements under the Employment Standards Act.

What to take from this case:

The Tribunal's decision is a great reminder to employers that the duty to accommodate employees is an ongoing one.  If there is a change in an employee's circumstances, an employer must reexamine the accommodation that has already been put in place for the employee or that has been proposed in order to determine whether it meets the revised needs of the employee.  A failure to do this can lead to a finding that reasonable accommodation has not been provided. 

Knee-jerk reactions to an employee's accommodation proposals should also be avoided.  To be able to successfully assert undue hardship associated with an accommodation request, you must be able to show why that particular request cannot work.  Here, the company appears to have either consciously or subconsciously avoided examining what the employee was actually seeking due to a desire to avoid any movement into that division whatsoever.  (Have a look at my prior post on what undue hardship is for further information).

Additionally, at the risk of sounding like a broken record, I cannot stress enough how critical it is to have a written procedure in place in your workplace relating to the duty to accommodate.  Properly written, it should spell out all of the steps that should be taken by an employer whenever a request for accommodation is made by an employee or a change in the employee's circumstances occurs.   Such a procedure, properly followed in all circumstances, would help an employer avoid missteps the likes of which occurred here.

Lastly, note here that the company's President was found, in his personal capacity, to be liable for what happened here and jointly responsible with the company for paying damages to the employee.  As the President was intimately involved with discussions with Mr. Tofflemire and his union relating to accommodation, and he was the operating mind of the company, it was well within Mr. Tofflemire's right to name the President as a personal respondent to his complaint and within the Tribunal's jurisdiction to make a finding specifically against him.

(Image by linder6580)

Anyway, amidst the weather wranglings, there has been a lot of interesting discussion on Twitter during the past week covering everything from enhancing workplace diversity, to how workplace sexual harassment is morphing with the new technologies and even to how those new technologies are impacting employer behaviors.  You'll also see a link to a great video that shows how a person who is blind navigates the internet on his computer.  Happy reading/viewing!

Alberta companies enhancing diversity of their workforces esp in male dominated fields http://chilp.it/?1dec50

Thoughts? Are women penalized in the wkpl if also a mom? http://chilp.it/?06be8e

The 'new' sexual harassment is less in-your-face than in the past but still a big problem. http://chilp.it/?a0fb02

RT @jonhyman: New blog post: Papering a personnel file as evidence of retaliation? http://bit.ly/Ijhgs

Just the beginning…RT @RossRunkel: 7 percent of hiring managers look at applicants' Twitter posts http://tinyurl.com/kkk9jr (@djillpugh)

RT @GlendaWH: Have you ever wondered how a blind person uses a computer? Here's a great video http://bit.ly/uuFC4