Canadian Human Rights Act

COMPLYING WITH HUMAN RIGHTS
LAWS: WHAT FIRST NATIONS
EMPLOYERS NEED TO KNOW
Landon Young & Jeffrey Murray
Stringer LLP Management Lawyers
110 Yonge St. Suite 1100
Toronto, Ontario
416-862-1616
www.stringerllp.com
1
Human Rights Legislation
Federal: Canadian Human Rights Act (CHRA)
Provincial: Ontario Human Rights Code
Legal principles are similar although
enforcement mechanisms vary
CHRA Interpretive Provision
1.2 In relation to a complaint made under the
Canadian Human Rights Act against a First Nation
government, including a band council, tribal council or
governing authority operating or administering
programs and services under the Indian Act, this Act
shall be interpreted and applied in a manner that gives
due regard to First Nations legal traditions and
customary laws, particularly the balancing of individual
rights and interests against collective rights and
interests.
CRHC Aboriginal Employment
Preferences Policy
Employers may have preferential hiring and
employment practices for Aboriginal
individuals
S. 16 of the CHRA exemption for
discriminatory practices designed to prevent
disadvantages that are likely to be suffered by
a group of individuals
Prohibited Grounds of
Discrimination (Federal)
 Race
 Sex
 Marital Status
 Citizenship
 Disability
 Family Status
 Colour
 National or Ethnic origin
 Religion
 Sexual orientation
 Conviction for pardoned
criminal offence or where
record suspension
ordered
 Ancestry
 Age
Indirect or “Adverse Effect”
Discrimination
 Workplace rules or procedures may be contrary to
human rights legislation if they have a
discriminatory effect
 Particularly common areas of such discrimination
include age, gender, disability, religion, family status
6
Indirect or “Adverse Effect”
Discrimination – The “BFOR”
Exemption
 A rule or requirement that has a discriminatory
effect may be permitted if the requirement is
reasonable and “bona fide” (sometimes referred to
as a “BFOR”)
7
Examples of Workplace
Practices With Discriminatory
Effects
Mandatory attendance policy
Physical requirements for a job that are not
reasonable
Random drug or alcohol testing
Preferential hiring, promotion or retention of
younger employees
Disabilities
May be illness or injury
May be physical or mental
May be work related or not
Disabilities may include partial or temporary
disabilities or impairments
Discrimination because of a perceived
disability is prohibited even if the employee is
not actually disabled
Accommodation of Disabled
Employees
 Employers have a duty to accommodate
disabled employees to the point of “undue
hardship”
 Employer can still require that disabled
employees be able to perform the essential
duties of a job
10
Accommodation of Disabled
Employees
 Accommodation is a two-way street: the employee
must cooperate with the employer’s efforts to
accommodate
 The employer is entitled to relevant medical
information to determine if it can accommodate the
employee
 Employees who are away from work for a
considerable period of time with no reasonable
prospect of return may be terminated
11
Attendance Management and
Disabled Employees
Employees with disabilities are protected
from discipline or termination due to
absenteeism as a result of a disability
Employer may terminate if the employee’s
absenteeism creates an undue hardship
Attendance Management and
Disabled Employees
First Step: Distinguish between “culpable” and
“non-culpable” absenteeism
Culpable absenteeism can be grounds for
discipline and, if persistent, termination
If the absence is due to the disability => nonculpable
Terminating Disabled
Employees
Ensure all reasonable efforts to accommodate
have been made
Document efforts at accommodation
For employees on an extended long term
disability leave make sure to obtain medical
information first to confirm there is no
reasonable prospect of return to work in the
foreseeable future
Drug & Alcohol Addictions
 Drug and alcohol addictions are considered a
“disability”
 Legitimate employee addictions must be
accommodated to the point of “undue
hardship” like other disabilities
 Drug testing generally considered
discriminatory on the basis of disability
15
Family Status
 There is a growing body of caselaw imposing
duties on employers to accommodate
employees with special family responsibilities
 Precise scope and extent of the duty depends
on the circumstances
 Examples of potentially required
accommodation include flex hours, reduced
hours and leaves of absence
16
Canada v. Johnstone
 Employee was working rotating shifts
 Employee asked for accommodation in shifts due
to child care responsibilities
 Employee had to reduce hours to part-time
status
 Child care duties covered by “family status”
 Employer violated the Act
 Employer should have attempted to
accommodate
Harassment
Harassment based on a prohibited ground of
discrimination is prohibited
Employers may be liable for harassment
committed by managers or supervisors
Employers have a duty to provide a
harassment free workplace
Sexual Harassment
Means any harassment of a sexual nature
May include the following:
• Jokes of a sexual nature
• Unwanted compliments regarding appearance
• Repeated, unwanted asking out on dates or for
social meetings
• Sharing personal, intimate details
• Distributing obscene pictures or videos to coworkers
Responding to Allegations of
Harassment or Discrimination
Ask for complaint to be put in writing
Conduct an investigation
• Interview potential witnesses
• Take statements
• Preserve any electronic evidence (e-mails, text
messages, etc.)
• Avoid making conclusions based on hearsay or
rumours
Responding to Allegations of
Harassment or Discrimination
If complaint is substantiated options may
include:
Counseling
Disciplinary action (warning, suspension)
Demotion
Termination
Human Rights Enforcement
Process (Federal)
1. Complaint to the Canadian Human Rights
Commission
•
•
•
Mediation
Investigation
May dismiss complaint or refer to the Tribunal
2. Canadian Human Rights Tribunal
•
•
Formal hearing and/or mediation
Decision and, if complaint substantiated,
remedial orders
Tribunal’s Remedial Powers
Order adoption of a special plan or program
Reinstate employee
Award for lost wages and compensation for
loss of job
Award for pain and suffering (max. $20,000)
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