Some months ago, I was asked to speak at the Human Resources Professional Association’s HR Law Conference to be held in Toronto on October 20, 2016. My task was to identify the notable developments in workplace human rights over the last 25 years. This was no mean feat. There were so many cases to consider. However, to narrow down our very subjective list, we focused on those areas of the law that we deal with every day in our practice as employment lawyers. Ours is not a particularly academic list – although I suspect there is some overlap. Rather, we asked ourselves, which cases, which concepts, which statutory changes from the last 25 years do we turn to over and over again?
Here is the second half of our top 10 list from the paper we prepared for the conference and delivered in a session on October 20, 2016:
6. ACCOMMODATING RELIGIOUS FREEDOM – Grant v. Canada (Attorney General),  125 DLR (4th) 556 (Fed. C. A.) (“Grant”)
In a complex and diverse society, accommodating religious freedoms is no easy task. In fact, attempts to challenge multicultural policies under the guise of “reverse discrimination” have made their way through the Canadian legal system.
Grant was one such prominent case in which a uniform policy of the RCMP, which allowed Sikhs to wear turbans, was challenged as unconstitutional on the grounds that:
- it compelled individuals to acknowledge the religious traditions of Sikh officers; and
- it favoured the religious preferences of Sikhs over those of other groups.
In finding that the policy was one which actually encouraged religious freedom, the Federal Court of Appeal judicially stamped recognition of the multicultural nature of Canada. In that respect, the Court held that religious protections for one group do not denote a disregard for other groups, nor do they compel other individuals to participate in, adopt or share the associated religious practices.
Application of the Grant Principles
The multiculturalism encouraged by the decision in Grant has expanded into other aspects of workplace accommodation, including the toleration of religious observances. In that respect, many employers have come up with creative ways to design flexible holiday policies that universally address the needs of a diverse workforce.
For example, in Markovic v. Autocom Manufacturing Ltd., 2008 HRTO 64, the HRTO was presented with a workplace policy that sought to accommodate religious observances by offering employees a “menu of options”, which included making up time, arranging to switch shifts with another employee, adjusting shift schedules, using up earned vacation time and taking an unpaid leave of absence. Notwithstanding those options, an employee alleged that the policy was discriminatory as it did not offer paid time off during Orthodox holidays to mirror the paid time off that employees would receive during Christian holidays.
In dismissing the complaint, the HRTO found that a “menu of options” approach was appropriate in the circumstances, as it permitted religious observance without loss of pay and was supportive of an employee’s autonomy of choice. In reaching that conclusion, the HRTO specifically noted that employers are obligated to design workplace standards in a way that recognizes differences in religion, and accommodates those differences with the goal of enhancing participation and inclusion – a task that it believed the employer had accomplished.
The evolving legal recognition of the multicultural nature of Canada sends a clear message; unreasonable and unsubstantiated beliefs will not justify policies that directly or indirectly impose blanket restrictions on religious practices. In contrast, employers must accommodate and encourage religious diversity in ways that reflect our evolving society.
The RCMP recently provided us with a great example of how to promote religious diversity and inclusion. In August 2016, the organization announced that women may now request approval to wear hijab head scarves as part of the iconic RCMP uniform, a change that was allegedly implemented in an effort to attract Muslim women to the organization.
7. DEFINING FAMILY STATUS: Johnstone v. Canada (Border Services Agency), 2014 FCA 110 (“Johnstone”)
The inclusion of “family status” in human rights statutes as a protected ground is a recognition of the nature of modern Canadian families, as well as the competing obligations they often face. However, the scope of the “family status” protection has been a source of discord amongst adjudicators. In Johnstone, the Federal Court of Appeal adopted a broad interpretation of the concept, which has since become one of the leading authorities on the analysis.
Johnstone involved an employer denying a mother’s request for a modified work schedule that would permit making adequate arrangements for the care of her child. In finding that the mother had been discriminated against on the basis of family status, the Court determined that the concept applies not only to the status of being a family member, but also to the associated legal obligations (e.g. a parent’s legal obligation to care for a dependent child).
Based on the decision in Johnstone, a case of family status discrimination that is grounded in childcare obligations will arise where the following factors are satisfied:
- a child is under the parent’s care and supervision;
- the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- the parent has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and
- the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation
Application of the Johnstone Principles
We have only just begun to feel the effects of Johnstone and we expect that it will have a broad application – in fact, the principles enunciated therein have already been applied to eldercare. For example, in Canada (Attorney General) v. Hicks, 2015 FC 599, the Federal Court found that the ground of family status should encompass eldercare obligations, as such obligations are entrenched in Canadian values, and their improper fulfillment can attract both civil and criminal responsibility. Think about that in the context of a country that has an aging population, which will soon be the largest cohort of older persons in Canada’s history.
In Ontario, a recent HRTO decision involving eldercare, Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (“Misetich“), may be re-defining the breadth of the family status protection. In considering the test formulated byJohnstone, the HRTO determined that:
- there should not be a different test for family status discrimination than for other forms of discrimination;
- there are many obligations that caregivers may have that do not emanate from their legal responsibilities – limiting the protection only to legal responsibilities imposes an unduly onerous burden on applicants; and
- as part of the test for discrimination, an applicant should not be required to establish that he or she made reasonable efforts to meet obligations through reasonable alternative solutions and that no alternative solution was reasonably accessible.
The HRTO ultimately held that the employee failed to make out her claim for family status discrimination due to the lack of information she provided to the employer about the nature of her eldercare responsibilities. In reaching that conclusion, the HRTO appears to have modified the Johnstone test, and has shifted the focus to the following considerations:
- the applicant must establish that there is a negative impact on a family need, which results in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, or to the employee’s work; and
- the supports available to the applicant may be relevant to assessing both the family-related need and the impact of the impugned rule on that need.
We are interested in seeing whether subsequent decisions will follow the approach in Misetich.
Next to Meiorin, we have probably discussed Johnstone more often than any other case with our clients. We are often asked to delineate the extent to which employers are required to accommodate matters of convenience rather than absolute need. For example, is an employer always required to acquiesce to an employee’s request to leave work early to pick up their children from school? Employers may find comfort in knowing that the guidelines expressed in both Johnstone and Misetich appear to suggest that employers are not required to accommodate bald and unsubstantiated requests, nor those that are based solely on matters of convenience.
8. ABOLISHING MANDATORY RETIREMENT THROUGHOUT CANADA
For many years, human rights statutes throughout Canada did not prohibit age discrimination in employment against persons older than a prescribed threshold. Based on that exemption, some employers developed mandatory retirement policies, which arbitrarily ended the employment of older workers once they reached the age of 65.
In the last few decades, provincial legislatures began repealing those thresholds. That nation-wide movement culminated in 2012, with amendments to the age provisions of the Canadian Human Rights Act. As a result, Canadian employers are now required to establish that any differential treatment on the basis of age is either justified as a BFOR, or permitted by a prescribed exemption in the applicable legislation.
Application of the Principles
The repeal of those thresholds, in conjunction with our aging workforce, has dramatically shifted our thoughts about who we think is too old to work, and how we manage the ongoing performance of older workers.
For example, in Clennon v. Toronto East General Hospital, 2009 HRTO 1242, the HRTO sent a strong message that, when older employees are experiencing performance issues, soliciting discussions about retirement rather than adhering to established performance management policies will not be tolerated. Similarly, in Deane v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1863, the HRTO found that an employer had discriminated against an older employee by discouraging her from applying for an internal position, and by actively promoting the advantages of retirement in a number of unsolicited discussions.
In light of those decisions, our clients often ask us whether voluntary retirement programs are an effective way to downsize their workforce by attrition, while avoiding complaints of age-based discrimination. In Ontario, voluntary retirement programs are generally permissible if they satisfy various requirements, including:
- they are truly voluntary and not mandatory;
- there are no consequences associated with non-acceptance;
- the employer does not actively encourage retirement; and
- the employer avoids making comments about the reduced utility of older employees.
While we have seen some age discrimination cases in the last few years, we expect to see more as employers are increasingly asked to manage their aging workforces.
9. STATUTORY ACCESSIBILITY STANDARDS FOR PERSONS WITH DISABILITIES
Although human rights statutes across Canada have long prohibited discrimination on the basis of disability, few jurisdictions have passed extensive legislation that imposes proactive accessibility obligations on employers in relation to persons with disabilities. In 2005, the province of Ontario enacted the Accessibility for Ontarians with Disabilities Act, (the “AODA”), and became the first Canadian jurisdiction to introduce a comprehensive statutory scheme that seeks to develop, implement and enforce accessibility standards.
The AODA is being implemented in accordance with a gradual roll-out schedule, which seeks to establish a fully accessible province by 2025. The AODA’s prescribed accessibility standards impose various obligations on certain employers operating in Ontario, including:
- notifying employees and job applicants about the availability of accommodation;
- providing employees with training on the requirements of the AODA and the Ontario Human Rights Code as it pertains to persons with disabilities;
- providing employees with accessible communication supports and formats;
- documenting individual accommodation plans for employees with disabilities; and
- filing ongoing accessibility compliance reports.
Application of the Principles
Implementing wide-spread accessibility standards in Ontario has had its challenges. In fact, since its inception, the AODA has undergone two legislative reviews, both of which identified a number of concerns in how the legislative scheme was being implemented. The reviews resulted in the preparation of comprehensive reports. The first was prepared by Chares Beer in February 2010 and the second was prepared by Mayo Moran in November 2014.
Both reports highlight similar overarching themes, including:
- the slow progress in implementing the targets of the accessibility regime;
- the need for stronger government leadership;
- the lack of public awareness on the initiative;
- the implementation challenges experienced by obligated organizations due to the complexity, lack of harmonization and broadness of the legislation; and
- the lack of effective and visible enforcement.
Despite those challenges, the enactment of the AODA signals that Canadians are increasingly adopting a very different way of thinking about disability. In fact, other jurisdictions have recently undertaken to follow Ontario’s lead and develop similar accessibility standards, including the province of Manitoba with its recent enactment of the Accessibility for Manitobans Act. We strongly believe that Canada is progressively transitioning away from the provision of individual accommodation on an ad hoc basis, towards the establishment of a society that is universally accessible.
A great example is the Toronto Transit Commission, an organization that has taken a number of steps to provide the public with a universally accessible transportation service, including by establishing:
- operational elevators and escalators at subway stops;
- on-route audio and visual notices of approaching destinations;
- kneeling buses with extendable ramps;
- designated priority seating for persons with accessibility needs; and
- a 24-hour door-to-door Wheel-Trans service.
10. THE STATUTORY DUTY TO INVESTIGATE WORKPLACE HARASSMENT AND DISCRIMINATION
It is one thing for employees to have human rights protections – it is quite another to impose legal obligations upon employers to deal with breaches of those protections. This is how we see the development of the legal obligation to conduct workplace investigations into allegations of workplace harassment and discrimination.
The legal obligation has its roots in human rights case law, where some human rights adjudicators (but not all) determined that an employer was obliged to investigate complaints as part of its obligation to provide employees with a workplace free from harassment and discrimination. There has also been movement in employment law cases, where an employer’s failure to investigate has either triggered the awarding of bad faith damages, or has served as the basis for another actionable tort.
As a result, there is now a body of case law on workplace investigations. It deals with such matters as the circumstances under which one should be conducted, and the procedural content of the obligation to conduct one. This simply did not exist 25 years ago.
Application of the Principles
On September 8, 2016, Ontario’s Bill 132 amended the Occupational Health and Safety Act, and imposed upon employers a statutory duty to conduct “appropriate” investigations into incidents and complaints of workplace harassment. In the absence of a satisfactory investigation, the Ontario Ministry of Labour (the “Ministry”) has reserved the right to order an investigation to be conducted by an impartial third party at the employer’s expense.
The Ministry has also released a Code of Practice to Address Workplace Harassment (the “Code of Practice”), which is intended to be an instructive guide on the implementation of the amended provisions. The Code of Practice specifically sets out a number of principles that employers should adhere to when conducting investigations, including:
- interviewing the complainant and the alleged harasser;
- giving the alleged harasser an opportunity to respond to specific allegations;
- separately interviewing any relevant witnesses;
- collecting and reviewing relevant documents;
- taking appropriate notes and statements during interviews;
- preparing a written report of the investigation; and
- maintaining appropriate confidentiality throughout the process.
We have already participated in many discussions with our clients about the increased legislative focus on workplace harassment, as well as the associated requirements for conducting adequate and appropriate workplace investigations. Bill 132 is the first statutory enactment of its kind in the country, and we expect it to be a game-changer.
Workplace human rights law continues to grow and evolve as time passes. The concepts we have identified in this paper represent some fundamental changes in the world of human rights. When we consider the legal developments of the last 25 years, we believe that we have created workplaces that are more inclusive, more diverse and more respectful. However, as much as we have accomplished, we believe much more work needs to be done. We hope that when we review the legal landscape 25 years from now, we will see further developments.