Human Rights & Accommodation

We are living in uncertain and quickly changing times.  Most recently, on January 27, 2017, President Trump issued an Executive Order (EO) that suspends entry into the United States for 90 days of certain aliens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.  For more information about the EO and its immigration and mobility 

In the recent decision of Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, the Ontario Court of Appeal (“ONCA”) upheld the Human Rights Tribunal of Ontario’s 2013 decision to reinstate an employee, more than 10 years after her employment was terminated. By the time of the ONCA’s decision, almost 15 years had passed since the original termination.

The ONCA’s decision may encourage other decision-makers to order reinstatement as a remedy in discrimination cases. The decision also highlights the importance of considering all possible positions, vacant or not, in order to meet the duty to accommodate employees with disabilities.

Continue Reading More Reinstatements on the Horizon in Discrimination Cases?

The first half of 2016 has already brought significant developments in employment law in the United States, triggering changes that companies with operations in the US must implement and plan for now. From final Department of Labor regulations increasing the salary requirements for exempt employees, to the new federal trade secrets law that will require updates to confidentiality agreements, in-house counsel and HR professionals have to develop best practices and strategies to navigate and comply with several new initiatives today. How can you help “save the day” for your company?


Continue Reading Upcoming Webinar – How to Be Your Company’s Superhero: The Top US Employment Developments You Need to Know for 2016

A recent decision of the Human Rights Tribunal of Ontario (the “HRTO”) has further defined the scope of the test for “family status” discrimination. Employees may not be required to take measures to find alternative arrangements for infrequent, sporadic or unexpected family needs, before seeking protection under the Human Rights Code (the “Code”).
Continue Reading Family Status Discrimination: HRTO Narrows “Self-Accommodation” Requirement

Franchisors who place strict controls on their franchisees may also have to answer for their franchisee’s human rights practices.

Product and service consistency is the backbone of coffee giant Tim Hortons’ successful business model. Tim Hortons, like many other successful franchisors, imposes a strict regime on its stores in order to ensure that all Canadians can get the same cup of coffee, in the same cup, regardless of where they order it. Control manifests itself through an extensive franchise agreement, detailed operations rules and regular audits of individual stores.

Continue Reading Is the price of a consistent cup of coffee shared human rights liability?

A recent New York Times article about the workplace culture at Amazon has spurred increased debate about the value of so-called “purposeful Darwinism”, in which competitive pressures (both internal and external to the workplace) and grand ambitions foster a cut-throat and gruelling workplace environment that leaves employees struggling to keep up or out in the cold.

Being at the top of any field, some would argue, demands this type of attitude and requires employees and managers who settle for nothing less than the best. When a company operates in a fast-paced, high-stakes industry that rewards continual improvement, hyper-efficiency, precision, and immediate satisfaction, there may be very little room for either error or rest. In exchange for a few years of catering to extraordinary expectations, employees receive above-marker compensation, responsibility, and experience that they might not gain in a less exacting workplace. This assumes, of course, that employees have the option of moving up or moving on, which is often more true for white-collar employees than blue-collar ones.

On the other hand, some companies appear to have achieved remarkable growth while maintaining a positive space for employee engagement and encouraging a more even work/life balance – on the whole, even if not day-to-day. For these companies, corporate sustainability extends beyond ensuring a healthy profit margin and minimal carbon footprint. Rather, it also involves ensuring that key talent can be attracted, encouraged, and maintained and that the diversity of the workforce is harnessed and propelled into innovative ideas and approaches. This attitude towards employee relations may require sacrificing short-term gains for potentially long-term viability – a cost that some employers, particularly those with demanding shareholders, may be unwilling or unable to pay.
Continue Reading Workplace Tug-of-War: Balancing Employee Demands with Employer Expectations

Business is becoming increasingly global as companies establish operations in various countries throughout the world. As profitable as this strategy may be, expansion is not without its difficulties. Where an employer is a subsidiary or branch of a larger foreign corporation, for instance, there may be issues regarding conflicting laws and regulations. For example, where a parent company is expected to abide by one set of laws in the United States, but adherence to those laws may be viewed as discriminatory in Canada, what is the appropriate course of action for a Canadian subsidiary or branch?

On July 23, 2015, the Supreme Court of Canada (“SCC”) released its decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. The case was the SCC’s first opportunity to consider alleged discrimination based on foreign laws.
Continue Reading Acting Locally, Thinking Globally: The Impact of Foreign Laws on Canadian Employers

Most employers are familiar with the prohibitions against discrimination that exist in human rights legislation throughout Canada.  At the centre of the legislative web are protections for employees with disabilities which includes the right to equal treatment in employment.

But what about employees who do not suffer from disabling conditions and are simply predisposed to serious, or life-threatening, conditions? Where do they fit into the legal framework? What protections, if any, do they have in the workplace? What rights, if any, do employers have to know about their genetic vulnerabilities? In short, how do genetic markers and family medical history impact the employment relationship?

These are questions that our human rights laws will be forced to grapple with, and the outcome of ongoing debate about “genetic discrimination” is likely to impact employers across the country. While hard and fast answers for are not yet entirely clear, employers should be aware of the differing viewpoints and potential ramifications.
Continue Reading It’s All in the Genes: Genetic Discrimination in the Canadian Workplace

Introduction

An employee’s use of intoxicants, like marijuana, can adversely affect the work environment by:

  • compromising the ability of employees to perform their job duties;
  • threatening the health and safety of the employee and his or her co-workers; and
  • undermining the employer’s reputation.

It is no surprise, then, that employees who are found to be under the influence at work often face discipline.

Yet, the rise of marijuana as a treatment for disabling medical conditions (such as epilepsy, chronic pain or post-traumatic stress disorder) has caused this once relatively “clear” issue to become more complex.
Continue Reading Going Green: Medical Marijuana and the Ontario Human Rights Code

Our regular readers may recall our previous post regarding the case of Attorney General of Canada v. Johnstone, in which the Federal Court of Appeal established a new test for determining whether an employer has discriminated against an employee on the basis of “family status.” In the recently-released Partridge v. Botony Dental Corporation, 2015 ONSC 343, the Ontario Superior Court adopted the Johnstone test in the context of Ontario’s Human Rights Code and awarded the plaintiff $20,000 in human rights damages.
Continue Reading Ontario Court Adopts Federal Test for Family Status Discrimination