So true whether in US or Cdn $. RT @GlendaWH: RT @Disabilitygov: most accommodations cost less than $500? http://bit.ly/cDcvDf

RT @yosie23 Another good reason for employers to implement social media policies http://is.gd/c68ws (@cnn)

Reading: @jonhyman “Battle of the Accommodations” http://bit.ly/9RjjKF

Couldn’t agree more! RT @firstreference: Employment Law: Harassment has potential to breed violence when unchecked! http://bit.ly/cmd9Gc #hr

RT @firstreference: Doorey’s Workplace Law Blog: More on Hiring Discrimination in Catholic Schools http://bit.ly/9uczh8 #employmentlaw #hr

SK Human Rights Commission supports moving functions of Human Rights Tribunal to court as noted in recent media reports http://bit.ly/bgrZE7

Racialized women drive increase in women lawyers – http://bit.ly/btIctT #diversity

Credibility is key in he said/she said cases. RT @nationalpost: Cdn woman loses sex harassment case against U.K. boss http://natpo.st/aaMfj2

Happy reading!!  And, to my Canadian readers, I wish you a fabulous Victoria Day long weekend!  –  Donna

It has been strange getting used to no longer having my parents around (dad predeceased my mom a number of years ago now).  You wouldn’t think that at 40 you could feel like an orphan, but I have to admit I have had those feelings of late!  The biggest adjustment, though, has been taking over the full-time care of my sister, who lives with disabilities.  She had previously lived with my parents, and then my mother when my dad passed, her entire life.  We are now a house of five, including my young twin daughters, my sister, myself and my husband (six, I guess, if you count the dog!).  Makes for a very busy household and a schedule that I did not think could get any busier than it already was — but it has.

Anyway, I’m looking forward to getting back into blogging again.  I’ll admit, it’s not going to be an easy task given all of the balls I am currently juggling. But, my new philosophy is to just keep on trucking ahead and hope for the best.

Cheers!

Donna

Donna

LESSON #1: human rights legislation does not look to stand in the way of consensual sexual relationships between persons in the same workplace.  Employers need to understand, though, that there are risks that may be run in situations where the people involved in an apparent consensual relationship are of differing levels of authority or power in the workplace. 

LESSON #2: a person in a position of power who engages in a sexual relationship with a subordinate risks a negative inference being made against him or her that the relationship was not truly consesual simply by virtue of the fact that they have authority over the other person in the workplace.  In other words, the assumption will be that the subordinate felt pressured or otherwise obligated by virtue of the work relationship to enter into the sexual one.  As a result, the law places a high degree of responsibility on the person in the "power position" to ensure consent.  Because of the view the law takes of supervisor-subordinate intimate relationships, it is very difficult for the person in authority (and the employer) to defend against a subsequent harassment complaint by the subordinate employee if the relationship goes in the tank.

LESSON#3: An office romance between individuals of differening power can also create other problems for an employer.  The person in authority may find themselves in a conflict of interest in the sense that they are now unable to make rational and reasonable decisions relating to the person they were involved in the relationship with.  At the very least, there will be an appearance of a conflict of interest. In addition, the person in authority will be in a prime position to retaliate against the person they were involved in the relationship with, should they decided to react in that fashion.  Retaliation can, in these types of circumstances, be viewed as a specific form of sexual harassment.

LESSON#4: Openly romantic relationships can contribute to a poisoned work environment for other employees.  For example, if the people involved in the relationship are explicit in their sexual conduct in the workplace, this can cause tremendous discomfort for others in the workplace, leading to a broader-based harassment claim.  Alternatively, should problems in the relationship occur and spill out into the greater workplace, this can, again, impact others.

What to take from these lessons?

It is important for workplaces to recognize that their employees may develop romantic relationships with their co-workers.  That isn't something neatly within an employer's control.  What is in a workplace's control, though, is the measures it takes to prevent inappropriate supervisor-subordinate sexual relationships from forming and how it reacts when those relationships are discovered.  In my view, it is wise for employers to caution all persons in positions of authority against getting involved in romantic relationships with those they supervise.  It is good practice to stipulate that supervisors immediately disclose the development of such relationships so the employer can take appropriate steps to address the situation and limit its liability exposure.  Disciplinary consequences should be tied to the failure to make such a disclosure.  Alternatively, employers need to keep their eyes and ears open for signs that an intimate relationship may be occurring between a manager and employee to enable quick intervention.  In both situations, the employer would be best advised to remove the subordinate from the supervisor's authority right away. 

I certainly do not know what happened between the people involved in the Siloam Mission story.  Hopefully, though, the lessons that can be gleaned from the fall-out relating to that situation can serve to prevent such unfortunate circumstances from occuring in your workplace.

I'd be interested in hearing any stories you have about how your workplace handles office relationships. 

1. My top pick of the year is Brian Bowman's On the Cutting Edge.   I have to admit that my vote goes to Brian partly because I found it nice to finally have company — prior to his entry into the blogosphere this year I held the informal title of being Manitoba's only blogging lawyer since August 2007 when I started my blog.  But, the big reason he gets my vote is because I find his blog to be interesting reading and useful in the work that I do.  Brian blogs about privacy law, access to information, online reputation management, intellectual property and technology matters and given I do a great deal of workplace investigations, I need to be up-to-date on privacy related issues in particular.  So, for me, Brian's blog is a must-read.  Brian's entry into the blogosphere was really just a natural progression given he has been writing articles in the business section of the Winnipeg Free Press under the same "On the Cutting Edge" name for years now.  With his blog, an even broader audience will benefit from his insights;

2. My second pick is David Doorey's Workplace Law Blog.  David is a professor of labour and employment law in the School of Human Resource Management at York University.  He blogs about case law, items in the news and interesting issues all relating to Canadian labour and employment law.  While he started his blog initially to engage with his students, it has certainly become a reading staple for practicing lawyers like me.  I voted for David's blog last year because I thought it was a great new blog to come on the scene.  This year he gets my vote because of the collegial way he and I have been able to engage, using our blogs.  He has been kind enough to give me a heads-up on cases that he thinks my readers might have an interest in me covering.  We have also done a bit of cross-posting (or creating a conversation) between our two blogs this year which I personally think is one of the great things about blogging – exchanging ideas and opinions on interesting legal issues.  But, if I was really being honest here, I'd have to say I have a soft spot for David and his blog because I think I secretly covet his job (my first love is teaching, with practicing law coming in a close second). 

3. My last pick is Slaw.  Slaw is a co-operative weblog covering pretty much anything that has a connection to Canadian law and it does that in spades.  Since I started following this blog a few years ago it has grown leaps and bounds and now has so many contributors I've lost count.  In fact, it has grown so much that I sometimes find it hard to keep up with the blog's multitude of posts, but I always find something in my feedreader from Slaw that is of interest and use to me.  I do have to admit, though, that because of the sheer volume of content coming from Slaw I have taken to scouting out posts from particular Slaw contributers — David Bilinsky, Dan Michaluk, Steve Matthews, Jordan Furlong, Omar Ha-Redeye  always top my list because they produce content I find personally relevant.

So, those are my top 3 nominations for the Clawbies for 2009.  I urge you to check out my picks but, certainly, don't stop there as there is so much great blog content being produced by lawyers and legal professionals all across the country.  Check out the list of Canadian law blogs maintained by Steve to find out what other gems you might want to add to your regular reading.

And, if you're interested in casting your vote for the Clawbies, Steve has provided 3 easy ways (I think the man likes the number 3 for some reason!!) to do so:

"Between now and Monday December 28th, publicly nominate a Canadian authored legal blog using ANY of the following methods:

1. Tweet your endorsement on Twitter.com along with the hashtag text: #clawbies2009. We’ll be monitoring!
2. Email your favourite blog, along with a sample post or two, or any other notable highlights to Steve Matthews at (steve@stemlegal.com) steve (at) stemlegal (dot) com. It’s not a public nomination, but still acceptable.
3. Or the most influential method, write a blog post about three other Canadian law blogs you currently read and tell us why those blogs are important to you."

 

 

If the post you received this morning was a new one to you (as you subscribed to my blog after it was initially posted), here's my full series relating to Using Social Networking in the Hiring Process.  Enjoy!

Using Social Networking in the Hiring Process: Smart Move or Human Rights Trap? – Part One

Using Social Networking in the Hiring Process: Smart Move or Human Rights Trap? – Part Two

Using Social Networking in the Hiring Process: Smart Move or Human Rights Trap? – Part Three

This particular case has a long and rather tortuous history, taking a good ten years to reach a conclusion from the time Mr. Gooding was fired and comes after the employee in question had decided to retire.  The employee, Brian Gooding, was a member of the BC Government and Service Employees' Union ("the Union") and from 1984 to 1998, was the manager of a liquor store operated by the BC government on Salt Spring Island.  Between 1996 and 1998, Mr. Gooding began to drink alcohol heavily and also began to steal alcohol from his workplace.  After other employees caught on to Mr. Gooding's thievery and complained, an investigation ensued and on June 18, 1998, he was confronted about the thefts.  Mr. Gooding admitted to stealing and immediately advised his employer that he was an alcoholic.  On June 20, Mr. Gooding entered into an alcohol rehabilitation program and has remained sober ever since.  Mr. Gooding was suspended without pay on June 24 and then was subsequently terminated on August 21 after the Government completed its investigation. 

The Union grieved Mr. Gooding's termination and thus began the winding road of arbitration, appeals and reconsiderations.  At the initial arbitration, the termination was upheld.  The arbitrator found that while the employee's alcoholism was why he stole the alcohol, the evidence showed that the employee knew what he was doing and that what he was doing was wrong.  As a result, the employee's addiction played no role in assessing responsibility for his conduct.  The decision was appealed.  The labour board appeal panel concluded that the arbitrator had applied an incorrect analysis of the employee's conduct.  The appeal panel determined that when dealing with misconduct of an addicted employee, a "hybrid analysis" had to be used.  This analysis recognized that addiction can play a factor in an employee's misconduct even if other aspects of the misconduct could be found to be voluntary.  In this context, an employer (and an arbitrator upon review) has to determine what part of an employee's conduct is as a result of an addiction and triggers a duty to accommodate and what part of the employee's conduct was within his or her control and subject to discipline.  The end result can be a mixture of accommodation (providing the employee with rehabilitative treatment) for the disability-related behaviour and discipline (such as removing an employee from a managerial position) for the non-disability related behaviour.

The matter returned to the arbitrator who first heard the grievance.  This time, he concluded (at least implicitly) that the Government's firing of Mr. Gooding was prima facie discriminatory on the basis of disability (alcoholism) and that the Government could have accommodated Mr. Gooding short of terminating his employment.  The arbitrator reinstated Mr. Gooding but to a non-supervisory position.

The Government appealed this latter decision of the arbitrator to the Court of Appeal.  Madam Justice Huddart wrote the majority decision and she concluded that the arbitrator's decision was in error.  In particular, she concluded that Mr. Gooding had not proven a prima faciecase of discrimination, a threshhold required to be met before an employer's duty to accommodate is even triggered.  After reviewing a number of prior decisions which explained what is required of a person alleging discrimination in order to prove a prima faciecase, Madam Justice Huddart concluded as follows:

"I can find no suggestion in the evidence that Mr. Gooding's termination was arbitrary and based on preconceived ideas concerning his alcohol dependency.  It was based on misconduct that rose to the level of crime.  That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer's decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee would have suffered for the same misconduct."

Madam Justice Huddart pointed out that the BC Human Rights Code was "not designed to prevent employers from dismissing an employee who has committed a crime related to his or her employment."

She remitted the case back to the arbitrator to make a determination as to whether Mr. Gooding's dismissal was excessive when all of the circumstances were taken into account.  

Discussion

This case demonstrates the difficult balancing act that arbitrators and courts often have to perform when enforcing provisions of a collective agreement relating to misconduct that is subject to discipline and ensuring protections accorded to employees with disabilities under human rights legislation are respected.  This balancing act has lead to an inconsistent approach to cases of this nature across the country.  And, it has lead to an inconsistent approach in this one case alone.

Here, the arbitrator initially concludes the presence of an addiction does not excuse the employee's criminal behaviour and termination was appropriate.  Then an appeal panel finds that the presence of an addiction means that an employee's behaviour might be explainable due to a disability and an employer might have a duty to accommodate along with imposing discipline, as a result.  Finally, the Court of Appeal appears to conclude (using a different approach than applied by the arbitrator at first instance but coming to the same result) that when an employee's conduct is criminal in nature the employer has the right to discipline regardless of the presence of an addiction and the addiction only comes into play in determining what discipline should be imposed.  In other words, the employer's duty to accommodate an employee's disability in these particular circumstances is not engaged until the assessment of the disciplinary penalty. 

See British Columbia (Public Service Agency) v. British Columbia Government and Service Employees' Union, 2008 BCCA 357.

While the survey showed the labour force participation rate for persons with disabilities rose from 49.3% to 53.5% between 2001 and 2006, that was still significantly lower than the participation rate of persons without disabilities, which stood at 75.1% in 2006.  Moreover, the survey details that barriers still exist in the workforce which prevent people with disabilities from fully participating in it (or, in some cases, from participating at all). 

While recognition certainly must be given to employers out there who are making strides to create working environments that are inclusive of people with disabilities, there’s still more work to do in order to increase their rate of employment.   I think education is key because it addresses that whole ‘fear of the unknown’ that many employers experience when they even think about employing someone with a disability.  Workplaces that take active steps to educate themselves on disability and accommodation are the ones most open to making change.  In most cases, the workplace accommodation a person with a disability needs is minimal (I’d note here that the survey points out that the accommodation most required by survey participants was a modification to work hours or days).  Nowadays, there are numerous resources that exist to help employers in this area.  If you access the home page of my blog you’ll note on the right hand side bar that I list some of the internet-based resources (hopefully this blog falls into that category too (!)).  Perhaps by the time the next survey of this kind is done we’ll see even greater improvement.

You can view a summary of the survey here.  Also of interest is this Canadian Press news release and this article from the Vancouver Sun.

I help companies prevent and resolve human rights issues in-house so they don’t become costly external liabilities. 

I’m a lawyer with extensive knowledge and experience in the area of human rights law and the investigation and mediation of human rights complaints, having acted as both counsel to the Manitoba Human Rights Commission and its Board of Commissioners and as the Commission’s Manager of Investigation & Mediation.  In 2006, I founded my own consulting company, Donna M. Seale Consulting Services.  Through my company, I provide public and private sector employers in Manitoba an experienced resource they can turn to for a practical approach to understanding and resolving workplace human rights issues and conflicts. 

I also continue to work with the Manitoba Human Rights Commission by developing and delivering public education sessions in the area of workplace human rights law on their behalf.

My husband and I have twin daughters and live just outside of Winnipeg, Manitoba.

Disclaimer:  Please note that this weblog is presented for informational purposes only and should not, in any way, be relied on as legal advice or opinion. Should legal advice or opinion be required the services of competent counsel should be retained. I make no claims, promises or guarantees about the accuracy, completeness, currency or adequacy of any information linked or referred to or contained on this weblog.

My knowledge of human rights has been greatly enhanced. Production Manager, Manitoba Transportation & Government Services, Special Operations

Workbook is an outstanding resource! Instruction was phenomenal.  Examples were great!  Case studies were very relevant, an excellent learning tool.  Mix of lecture and exercises was perfect.  This was one of the most organized, effective courses I’ve attended….Thanks for a wonderful learning experience!  Human Resources Consultant, Manitoba Energy & Science

Working with Donna was an invaluable experience.  Her knowledge and expertise assisted with my learning and understanding in conducting investigations.  Donna’s technical knowledge is invaluable and she is a wonderful resource.  It was truly a pleasure to work with her.  I would (and have) recommended Donna to my network.  Diversity Coordinator, Manitoba Public Insurance

I thought the entire course content was relevant and delivered in a manner that was learner-centred ie. interactive, engaging, thought-provoking.  Donna is an excellent facilitator with the right balance of instructing and participant involvement.  Human Resources Consultant, Family Services & Housing

Great presenter.  Knowledgeable and experienced. Program Manager, Manitoba Family Services & Housing

A good toolkit to walk away with — the handouts alone are well worth this course.  The case studies were excellent.  Thank you so much!  Manitoba Agriculture

Donna knows her stuff and she is very interesting to listen to.  Human Resources Generalist, City of Brandon

A lot of seminars just go over the basics and you get so much detail so quick you can’t remember.  This course gives great detail and examples to put the theory to work and make it easier to apply in your work area.  The binder was laid out well and very helpful.  The case examples were very helpful to make sure you understood the theory.  Human Resources Consultant, Manitoba Family Services & Housing

[The How to Investigate a Human Rights Complaint course] should be a basic requirement for current and all newly recruited managers and those who are pursuing management positions.  Anonymous

Excellent training for excellent value.  You bring a great deal of credibility to the topic.  I would like to expose all of our managers and supervisors to this training.  Senior Manager of Human Resources, Maple Leaf Foods

Donna did a great job answering questions…especially for those not in a field where this material would be regularly used. Human Resources, LaFarge

Great session!  The presentation was very informative, well organized and very interesting.  Thank you! Training Coordinator, Society for Manitobans with Disabilities

Donna’s techniques as a facilitator are awesome.  She makes the process seem much easier — gives great methods on how to approach, proceed through and complete a human rights complaint investigation.  Collection Supervisor, Manitoba Finance

Donna is very easy to listen to and extremely knowledgeable.  Anonymous

The entire discussion was engaging, the handouts are excellent.  This is a most excellent seminar!  Human Resources Officer, Manitoba Metis Federation

I found the portion of the [How to Investigate a Human Rights complaint] course that explains how to plan a human rights investigation most helpful, because it provides a framework for what needs to be done and prevents important elements from being missed.  Executive Assistant, Province of Manitoba

Ms. Seale answered all questions with easy to understand responses and interesting real life examples.  Senior Unit Officer, Manitoba Corrections

[The Duty to Accommodate in the Workplace] course was very comprehensive.  Donna is an excellent expert resource on these issues and took a very methodical approach to the training.  Manager, Supportive Employment/Disability Management Program, Province of Manitoba

I would highly recommend Donna to others.  She was very astute in the analysis of our training needs.  She then provided very effective investigation training using specific case examples relevant to the work our investigators do.  Manager, Divisional Programs, Manitoba Labour & Immigration

The articles on your website are current and written in a wonderfully accessible style that would benefit both staff and academics. Employment Equity Officer, University of Manitoba