OHRC Gives Another Reason To Avoid Expanding Your Business

ACC – Keep an open mind when determining which relationships are covered by family status protection. For example, the Ontario Human Rights Code defines family status as “the status of being in a parent and child relationship.” This definition however, has been liberally interpreted by both courts and tribunals to include most parent and child “type” relationships including non-biological parent and child relationships and non-biological gay and lesbian parents. The Ontario Human Rights Commission has also taken the position that family status protection extends to individuals providing eldercare to aging parents. Given the aging population, employers should prepare for family status accommodation requests from employees who are looking after older parents with special needs.

Thinking Of Starting A Business? Think Again

Metro - Canadian employers have historically taken an ignorant view of human rights tribunals and their often extraordinary decisions. But that may be quickly changing.

Sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial legislation — such as human rights laws — in a broad and inclusive manner, should leave employers very concerned. Here are some of the reasons why…

Prince Edward Island: Human Rights Boffo Bucks

Annual Report 07/08 – Concerning the monetary claims, after looking at the constituent elements of the harassment experienced by the complainant, the Panel awarded $50,000 in general damages.  On the claim for loss of income…the Panel awarded the sum of $425,058.00 for loss of income during the years 1997-2006.

Court Supplies Another Reason Not To Hire Anybody

StarPhoenix – Dora Cooke’s recent claim against HTS Engineering in Sudbury is illustrative of this. After eight months on the job, Cooke quit, asserting she was subjected to psychological harassment and bullying by Patrice Comeau, one of her supervisors. She sued for constructive dismissal.

Her accusations stemmed from an instance when Comeau, a high school acquaintance she had kept in touch with, called her boyfriend a loser, and a few occasions, when he called her pathetic or an idiot over her performance. Cooke also said Comeau raised his voice at personnel in head office and sometimes directed salty language toward suppliers.

Surprisingly, the Ontario Superior Court of Justice did not conclude Cooke was free to look elsewhere if she was unhappy. Instead, it listened to seven days of testimony in an attempt to sort out who called whom what. The judge found in Cooke’s favour, awarding her damages both for wrongful dismissal and mental distress.

Ontario Human Rights Commission: Business Is Booming

Toronto Star – Ontario’s newly streamlined human rights watchdog is swamped with allegations of sex, race and disability discrimination, the Starhas found.

“We are really overwhelmed by our volume of cases now,” said Katherine Laird, the senior official whose job it is to support people who say they are victims. “Our phones are ringing off the hook.”

The Ontario Attorney General created a new human rights system nearly two years ago, making it easier for people with claims to get a hearing before the Human Rights Tribunal of Ontario…

Ontario Human Rights Commission chair Barbara Hall believes only a small number of cases are ever reported. “This is the tip of the iceberg,” she says.

Paper: The Case For Working Solo

Globe and Mail – Here’s a question for you: How many employees do you need before you have to start worrying about potential actions under federal or provincial human rights legislation? One? Ten? One hundred?

The answer is “yes.”…

If the BC Human Rights Tribunal is any guide, all you have to do is fire an employee who is absent from work for an extended period of time due to a medical disability by email and you could find yourself paying damages of $35,000 (not including legal fees) for “hurt feelings” because the employee was not terminated in person.

Employment Lawyer: “Human Rights” Racket All About The Cash

Financial Post – This conundrum is exacerbated by the new Human Rights Tribunal, which permits even the most frivolous complaint to proceed to a full hearing, at overwhelming costs to employers but at no cost to employees…

When employers are so unfortunate, they can expect to spend several years and potentially hundreds of thousands of dollars in legal fees, defending themselves while their business deteriorates. Their accusers can revel in their plight while they spend not a dime.

Fired? Plenty Of Options

CleoNet – It outlines the steps to follow if dismissed from employment, such as taking precautionary measures, calculating or estimating termination pay, and dealing with the former employer. Finally, it deals with choosing the best legal process for enforcing rights, including the Ministry of Labour, Small Claims Court, Human Rights Tribunal, and the Canadian Human Rights Commission.

Globe and Mail: Stop Talking Tailors, Let’s Talk Money

Globe and Mail - The commission said that the provincial health-insurance authority, the Régie de l’assurance maladie du Québec, should not bend to a client who refuses to be served by a headscarf-wearing employee…

Meanwhile, immigrants still face a considerable wage gap when compared with Canadian-born workers. In 2006, only one in five immigrants to Quebec was working in the profession for which they were trained, the lowest rate in Canada. In the agitation around reasonable accommodation in Quebec, and in the lack of debate about it in the rest of Canada, it is far too easy to ignore that larger failure to accommodate.

If The Words, “So, You From Around Here?” Leave Your Lips, You’ve Had It

Saskatchewan Human Rights Commission – A Guide to Application Forms and Interviews:

That’s why the Code says employers can’t ask certain questions – those where the information might influence the selection process in a way that discriminates…

Before employment, a medical examination is not allowed. Employers can’t ask questions about an applicant’s medical history either…

[Drug] Testing identifies persons with disabilities and targets them for discriminatory treatment. Therefore, in most situations it will not be allowed under the Code…

Don’t ask about foreign addresses which would indicate national origin. Okay to ask about current and previous addresses in Canada and how long applicant stayed there…

5. Citizenship. Don’t ask about an applicant’s citizenship status – it would reveal applicant’s nationality, ancestry or place of origin. That includes questions about proof of citizenship or the date citizenship was received.

10. Sex. On the application form, don’t ask about the sex of an applicant.

11. Age. Before hiring, don’t ask for any record (like birth certificate) or other information that would reveal the applicant’s age…

Human Rights Is Big Bucks #11

Southeast Texas Record – A CVS pharmacist alleges his employer discriminated against him because of his disability, then terminated him for complaining about the discrimination. He is suing the pharmacy chain for $3.5 million…

Mumfrey testified that the defendants committed defamation by issuing written disciplinary reprimands and classifying him as ineligible for re-hire.

CVS Pharmacy denies the allegations and argues that Mumfrey “does not have and never has suffered a physical or mental impairment that substantially limits a major life activity.”

Put On The Coffee, It’s Going To Be A Long Year

Financial Post – Employees with disabilities do not enjoy preferred status. An employer has the right to establish reasonable standards of performance, relative to the disability, and require those standards to be met. If problems persist, they legally can terminate provided it is not tainted by discrimination.

I recommend the following steps as defence against allegations of discrimination…

Another Winner!

[Nova Scotia Chronicle Herald] A manager with the Conseil scolaire acadien provincial who was forced to retire because he was too old has won a human rights case against his former employer.

This bit is our favourite:

A human rights officer initially investigates each complaint. If the commission believes a prima facie case of discrimination has been made, the case is referred to an independent board of inquiry.

Nothing like sending a made case to an “independent” panel. “Prima facie” — cool law lingo!

Man Fired After 8 Days On The Job, Awarded 90 Large By Ontario Human Rights Tribunal

The OHRC decision was made last year. Last week, it held up on appeal. Here’s the story:

[Financial Post, Sept 10 2008] Firing an employee for not disclosing his medical condition can be a very expensive error.

A few weeks after the terrorist attacks on the United States, Paul Lane applied for a job at ADGA, assisting it to develop software for the Department of National Defence. During his interview with the manager, Miranda Corbett, Lane failed to disclose he had bipolar disorder. He also lied about the number of sick days he had taken during the preceding 12 months.

Four days after he was hired, he told Corbett about his condition and that he would require time off if he began to experience a “manic episode.” He also said, if he began to show symptoms of rapid speech and extreme restlessness, management was to immediately contact his wife or doctor.

Following this meeting, he began to exhibit erratic behaviour. For example, much to the surprise of the program manager, he sent this e-mail: “Thanks a Million! Luv and Kisses. Paul.” The following week, Lane’s symptoms escalated to paranoia. He reported receiving death threats and hearing explosions in the building. This was obviously worrisome to a department assisting National Defence so soon after the horrific events of Sept. 11, 2001…

They canned him. Ooops. There goes $90, 000.

The breakdown:

• $35,000 in general damages for injury to his dignity and self-worth;
• $10,000 for reckless infliction of mental anguish;
• $34,278.75 for loss of salary;
• pre- and post-judgment interest on the above sums

Supreme Court: Employer Can’t Use Applicant’s “Unrelated” Past Crimes To Decline Jobs

[NUPGE] Does a pardon wipe away the stigma of a crime when a person applies for a job? Not completely, the Supreme Court of Canada has ruled in a Quebec case.

However, an employer cannot say no simply because of the “stigma attached” to a conviction, the court has ruled.

Where a pardon has been granted, or the crime is unconnected with the job being sought, an employer must demonstrate that some other reason exists to disqualify a person before he or she is turned down, the court has determined.

Example:

Interviewer: You were in prison?

Interviewee: Yes.

Interviewer: What for?

Interviewee: Three counts of armed robbery, one count arson.

Interviewer: Well, this is a telemarketing job, so no problem. So, what’s your favourite colour?

Human Resources Advice On Human Rights: Be Careful

[HR Infodesk] According to human rights legislation in each jurisdiction, the questions an employer asks at an employment interview must be related to the candidate’s qualifications and ability to perform the essential duties of the job. Questions that are directly or indirectly related to “prohibited grounds of discrimination”, such as age, family status, place of origin, religion, sexual identity, race, gender, and so forth, violate human rights legislation because they are irrelevant to the candidate’s ability to do the work. However, it is appropriate (and advisable) to ask a candidate about his or her educational background and past employment, as long as the questions are directly related to his or her potential job performance.

Example:

Interviewer: “So, you from around here?”

Interviewee: “BIGOT!”

Employers Wait To See Court’s Ruling On Chronic Fatigue Case

[Canwest] The Supreme Court of Canada rules Friday on a wrongful dismissal case that has left Canadian employers on edge since 2005 when an Ontario trial judge awarded $500,000 in a punitive damages to a fired Honda Canada employee who suffered from chronic fatigue syndrome.

The rational for the award was upheld by the Ontario Court of Appeal, although the record payout was reduced to a still-record $100,000. Honda opted to pursue the case to the Supreme Court.

The rest.

The Exorcism Of ETR

The problem expressed by some of ETR’s Christian employees is routed in the Bible and, particularly, the Book of Revelation. In the Book of Revelation, Christians are warned to avoid the “mark of the beast – the number 666.” For a number of devout Christian employees of ETR, the risk posed by their employer’s biometric security system was that their personal algorithm could end up containing the very mark that would impose eternal damnation on them. As a result of not being vigilant, the employees would have violated their own beliefs.

When the employees refused to participate in ETR’s biometric scanning system, they were fired. In a grievance arbitration under their collective agreement, the employees were reinstated, on the basis that ETR had failed to adequately accommodate the employees’ religious concerns in respect of the scanner, and that alternative security measures could address the concerns of both the employer and the employees.

While some people have already rolled their eyes in response to this religious interference in the use of state of the art technology, it is important to recognize that respect for individual religious beliefs is a hallmark of sophisticated and open minded societies like ours. In Canada, freedom of religion is one of the many freedoms that we all enjoy, and human rights legislation across the country requires employers and unions alike to accommodate religious beliefs to the point of undue hardship.

–  Kelly Van Buskirk, lawyer (surprise!)

The rest.

The PC Way To Can Someone

When employees are terminated or dismissed from their jobs, their employers may ask them to sign a release form. This guide helps employers and employees write termination agreements and releases that better reflect human rights principles.

The rest.