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 first half of our top 10 list from the paper we prepared for the conference and delivered in a session on October 20, 2016:
1. RETHINKING THE BONA FIDE OCCUPATIONAL REQUIREMENT – British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U.  3 SCR 3 (“Meiorin”)
Human rights statutes throughout Canada recognize that bona fide occupational requirements (“BFOR”) are not discriminatory. However, the determination as to what constitutes a BFOR fundamentally shifted in the Meiorindecision, in which a universal fitness standard for firefighters was challenged as having an adverse effect on women.
In finding the fitness standard to be unjustified, the Supreme Court developed a test that has since become the accepted approach to the BFOR analysis:
- Is the standard rationally connected to the performance of the job?
- Was the standard adopted in an honest belief that it is necessary to the fulfilment of a legitimate work-related purpose?
- Is the standard reasonably necessary to the accomplishment of that work-related purpose?
As an interpretive lens to the application of the test, the Supreme Court emphasized that where a standard is prima facie discriminatory, an employer may justify it only if individual employee differences have been accommodated to the point of “undue hardship”.
Meiorin was a game changer. We probably refer to it more often than any other case in our office when we talk to clients about the process requirements of assessing the accommodation needs of their employees. Those discussions frequently arise in the context of return-to-work plans and the associated obligations of employers to facilitate the reintegration process. We often see a tendency in employers to assert “undue hardship” prematurely.
Meiorin sent a clear message that, notwithstanding the existence of universal workplace rules and expectations, employers must conduct assessments of the circumstances and individualized needs of their employees to determine whether accommodation is reasonably possible. Those assessments must take place even in the face of preconceived notions, and even if related determinations have already been made by third parties (e.g. workplace insurance providers). Asserting “undue hardship” should be a remedy of last resort.
Application of the Meiorin Principles
In a series of more recent cases, including Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 (“Hydro-Québec“), the Supreme Court has confirmed the ongoing relevance of the above-noted approach, and has clarified that “undue hardship” does not require proof of impossibility.
In Hydro-Québec, the Supreme Court found that the “undue hardship” threshold was satisfied where an employee with a history of medical absences remained unable to work for the reasonably foreseeable future. Following its consideration of the Meiorin test, the Supreme Court re-confirmed that the individualized duty to accommodate may require the employer to modify the workplace and duties of employees in a manner that enables their performance of work. However, the employer is not required to establish that accommodation is impossible, nor is it required to alter the fundamental essence of the employment contract.
2. THE COMPETING RIGHTS ASSESSMENT – R v. S. (N.), 2012 SCC 72
The Canada of 2016 has a greater number of identifiable equity seeking groups. Inevitably, this results in competing rights. What does an employer do when its efforts to accommodate one employee has an impact on the rights of another? These can be challenging issues to sort out.
In R. v. S. (N.), the Supreme Court weighed in on the issue and set out a legal framework for assessing competing rights. The case involved the conflict between a woman’s religious freedom to wear a niqab while testifying in a criminal matter, with the rights of an accused to a fair trial.
In finding that the witness may be required to remove the niqab in certain circumstances, the Court endorsed an approach that seeks to balance the extent of the competing harms:
- Is there an interference with two legitimate rights?
- Is there a way to accommodate both rights and avoid the conflict?
- Do the salutary effects of the interference with one of the rights outweigh the deleterious effects of it?
Application of the R. V S. (N.) Principles
Although the decision was rendered in relation to protections prescribed by the Charter of Rights and Freedoms (the “Charter”), the Court’s framework arguably provides a broader guideline on reconciling competing claims to most human rights protections. In fact, in January 2012, the Ontario Human Rights Commission released a Policy on Competing Human Rights (the “Competing Rights Policy”), which encourages a very similar analysis.
In the context of workplace disputes, the Competing Rights Policy urges employers to recognize and reconcile competing rights by determining whether there is a solution that allows the enjoyment of everyone’s rights. Where such an outcome is not possible, the employer is asked to come up with the “next best” solution for one or more of the rights.
The Competing Rights Policy also identifies a number of key principles that should guide the reconciliation process, some of which include:
- there is no hierarchy of rights;
- no rights are absolute;
- the core of a right is more protected than its periphery; and
- the full context, facts and constitutional values at stake must be considered.
We look at the Supreme Court’s decision in R. v. S. (N.), in conjunction with the Competing Rights Policy, whenever we have a matter in which the human rights protections of multiple employees appear to conflict. In our experience, we often see a tendency in employers to preemptively favour one side of the dispute, without having undertaken the principled analysis. This commonly arises in conflicts involving religious rights, where one party asserts that their religious beliefs prevent them from adhering to certain established practices (e.g. making physical contact with members of the opposite sex in service-based occupations).
We generally encourage our clients to be neutral and open-minded, and accept the positions of those involved in good faith. In doing so, employers are better able to come up with creative solutions that may allow the reasonable exercise of everyone’s rights, even when some of those rights may conflict with preconceived ideals generally accepted by others.
3. RECOGNIZING SUBSTANTIVE EQUALITY – Andrews v. Law Society of British Columbia,  1 SCR 143(“Andrews”)
What does equality mean in Canada? In 2016, we often forget that following the advent of the Charter, there was widespread disagreement over what equality meant. Was it the same treatment between people? Was it something else? Some legal decision-makers interpreted the language formally and restrictively, equating the protection with the prevalent maxim that persons who are “similarly situated ought to be similarly treated”.
In Andrews, the Supreme Court went further and adopted a contextual analysis. The case involved a lawyer who was denied admission to the British Columbia bar because he lacked Canadian citizenship.
In striking down the citizenship requirement, the Supreme Court endorsed a substantive approach to equality, which recognizes that universal laws may nevertheless be discriminatory to certain individuals, depending on differences in personal characteristics and situations. Specifically, consideration must be given to the content of the law, its purpose and its impact upon those to whom it applies, as well as those excluded from its application.
Application of the Andrews Principles
Since Andrews, many cases have applied and refined the substantive equality framework. Quite recently, in Hay v. Ontario Provincial Police, 2014 ONSC 2858 (“Hay”), the Ontario Divisional Court upheld a decision of the Human Rights Tribunal of Ontario (the “HRTO”), which found that the dismissal of a First Nations Constable was not tainted by discriminatory motives relating to race, ancestry and ethnic origin. In addition, the HRTO found that the exclusion of First Nations Constables from the disciplinary protections of the provincial Police Services Act was not discriminatory, as the exclusion reflected a respect for the self-government of First Nations communities.
In Hay, the Ontario Divisional Court reviewed the evolving case law, including a number of post-Andrews Supreme Court decisions, and extracted the following principles:
- a finding of discrimination is ultimately based on whether the norm of substantive equality has been violated;
- the focus of the inquiry must be on establishing discriminatory impact or effect, rather than discriminatory attitudes or motives; and
- while prejudice and stereotyping are indicia of discrimination, they are not discrete prerequisites.
Bottom line for our clients: treating employees equally does not necessarily mean treating them the same. This approach is consistent with the individualized nature of the duty to accommodate.
We are often asked whether an employee’s failure to follow universal workplace policies, or satisfy company-wide performance expectations, is sufficient to establish cause for termination. The answer always depends on whether there are underlying factors at play. If there are, and if those factors relate to a protected ground (e.g. age, disability, sex, etc.), the employer may be exposed to a claim for discrimination, notwithstanding the universality of the expectation. This theme has become quite well-entrenched in the human rights case law.
4. SEXUAL HARASSMENT AS SEX DISCRIMINATION – Janzen v. Platy Enterprises Ltd.,  1 SCR 1252(“Janzen”)
Human rights statutes throughout Canada have long prohibited discrimination in employment on the basis of sex. Since the early 1980s, human rights adjudicators began expanding the protection to include acts of sexual harassment. However, some Canadian courts continued to question the nexus between sexual harassment and sex discrimination in employment until the Supreme Court’s decision in Janzen.
In that case, two waitresses were sexually harassed by a cook, and brought complaints that the conduct constituted discrimination on the basis of sex. In overturning the decision of the Manitoba Court of Appeal, the Supreme Court unanimously ruled that sexual harassment is a form of sex discrimination. In recognition of its impact as both an abuse of economic and sexual power, the Supreme Court broadly defined workplace sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences”.
Application of the Janzen Principles
Even today, Janzen continues to be referenced in virtually every workplace human rights case involving sexual harassment. Many of those cases are increasingly awarding significant damages to deter workplace sexual harassment, and recognize the serious psychological and physical impact it has on the long-term well-being of its victims. For example, in the highly publicized decision O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675, the HRTO awarded an unprecedented sum of $150,000 to a temporary foreign worker who had been subjected to numerous unwelcome sexual advances, solicitations and assaults by the owner of her employer.
In addition, since the decision in Janzen, there is an enhanced focus on an employer’s duty to investigate complaints of workplace sexual harassment. For example, in the oft-cited Harriott v. National Money Mart, 2010 HRTO 353, the HRTO was highly critical of an employer’s failure to undertake a prompt, serious and thorough investigation when it became aware of the possibility of harassment occurring in the workplace.
Consider the impressive legacy of Janzen: from increased vigilance on preventing workplace sexual harassment, to the growth of workplace investigations and statutory obligations, including Ontario’s Bill 132 (as further discussed below) and British Columbia’s Bill 23. Added to this list would be Justice Marie Deschamps’ report on sexual misconduct and harassment in the Canadian Armed Forces, and Sheila Fraser’s current inquiry into the RCMP’s handling of four harassment-related claims.
5. RECOGNIZING LGBT RIGHTS – Vriend v. Alberta,  1 SCR 493 (“Vriend”)
The LGBT community has historically been excluded from rights-conferring legislation. It was not until the 1970s-80s that provincial human rights statutes began to recognize sexual orientation as a protected ground. The province of Alberta was one jurisdiction that lagged behind that development, until the Supreme Court’s decision in Vriend.
In that case, an employee was fired as a result of his admitted homosexuality, but was unable to file a discrimination complaint because “sexual orientation” was not a protected human right in the provincial legislation. The employee commenced a lawsuit, alleging that the omission was inconsistent with the equality guarantees of the Charter. In agreeing with the employee, the Court effectively ruled that legislation purporting to discriminate or exclude individuals on the basis of sexual orientation is inconsistent with the Charter.
Application of the Vriend Principles
Vriend is viewed as one of the fundamental triggers for the increased recognition of LGBT rights in the 21st century. A number of cases have applied its principles to expand the protections afforded to LGBT persons. For example, inHeintz v. Christian Horizons, 2010 ONSC 2105 (“Heintz“), the Ontario Divisional Court upheld a ruling of the HRTO which found that a religious not-for-profit organization discriminated against a lesbian support worker by requiring her to adhere to a workplace policy that prohibited homosexual relationships. In reaching its decision, the HRTO specifically referred to Vriend when commenting on the particularly harmful effect of policies purporting to exclude homosexuals from employment, despite otherwise being hard workers and having the required competencies.
Heintz involved the application of the special employment provisions of the Ontario Human Rights Code relating to religious institutions. The employer acknowledged that the policy contemplated differential treatment based on a prohibited ground, but it argued that the treatment was justified by the special employment exemption, which applies where:
- the employer is a religious organization
- the employer is primarily engaged in serving the interests of persons identified by their creed and employs only people who are similarly identified; and
- the differential treatment is a reasonable and bona fide qualification because of the nature of the employment.
Although the Ontario Divisional Court did not agree with the complete analysis of the HRTO, it did agree that the employer failed to meet the third branch of the test, as the prohibition was not reasonably necessary or connected to the duties of a support worker whose primary role did not involve helping others adopt a religious way of living.
The trend towards an increased recognition of LGBT rights has continued in recent years, from protecting individuals who are gay to the express inclusion of wider gender-related protections in the human rights legislation of various provinces, including Ontario, Alberta and British Columbia. This culture shift has presented a number of new challenges for our clients. For example, employers must now consider how to design and encourage the use of workplace facilities (e.g. washrooms, change rooms, etc.) in a manner that respects the lived gender identities of employees. They must also consider how to maintain employee records to reflect changes in gender identify, or changes in how pronouns are used in the workplace, from “he” and “she”, to the newly coined “they” in some circumstances. These types of workplace considerations were virtually non-existent 20 years ago.