In a decision rendered last October 26th1, the Human Rights Tribunal (hereinafter the "HRT"), ordered Montreal’s Jewish General Hospital and the union, solidarily, to pay $10,000 in moral damages and $5,000 in exemplary damages to each of two complainants who were discriminated against further to the adoption of an agreement to make the position of orderly gender-specific (hereinafter the "Agreement"). The HRT also ordered the employer to stop applying the Agreement.
In November 1999, the employer and the union adopted the Agreement "for cultural, traditional and therapeutic reasons and for the well-being of patients," and to satisfy the patients’ wish to receive intimate care from orderlies of the same sex. In August 2000, the parties added that the Agreement had also been adopted for religious reasons. In fact, the written Agreement only officialized a policy that had been in effect for 25 years.
Following the adoption of the Agreement, the complainants were put on an on-call list reserved for women. Their work shifts were less frequent and shorter, although their tasks were identical to those of the male orderlies. It also became harder for them to obtain a permanent position.
The HRT held that patients are entitled to receive intimate care from a person of the same sex, in view of their right to their physical integrity, the respect of their privacy, the protection of their dignity and the freedom of religion guaranteed under the Charter of human rights and freedoms2. However, that right is not absolute and must coexist with the right of the complainants to working conditions that are free of gender bias.
Accordingly, the HRT found the Agreement to be discriminatory, since it created a "distinction based on gender between persons holding the same position and performing the same duties."
Consequently, the employer and the union, co-creators of the discriminatory policy, had to establish that the distinction was warranted in view of the skills or capacities required to perform a job as an orderly3. However, if the Agreement had a rational connection with the performance of the job of orderly, one of the main tasks being to provide intimate care, the employer did not establish that the Agreement was reasonably necessary to satisfy the patients’ wish to receive such care from an orderly of the same sex. The employer did not successfully prove that this was the only way to satisfy that preference. Moreover, it had a duty of accommodation to the complainants, and it did not demonstrate that it was unable to satisfy that duty without creating an undue burden.
The HRT considered the employer’s responsibility, and also that of the union, which, as co-creator of the Agreement, also had a duty of accommodation to the complainants. In addition, the fact that the employer and the union had agreed on the policy did not deny the complainants their right to equality, nor did it mean the Agreement could be interpreted as a waiver of their guarantee against job discrimination, unless the Agreement that was negotiated was based on a justifiable professional requirement.