Tag Archives: Human Rights

The Duty to Accommodate Child Care Responsibilities

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by Michael V. Coyle. JD*

Under federal and provincial Human Rights law it can be illegal for an employee to refuse to an employee’s reasonable request for child or elder care accommodation.

Two very recent cases from the Federal Court of Canada illustrate the current state of the evolving law of “family status” claims.

In one case, a freight train conductor was fired by Canadian National Railway when she refused a temporary work assignment in another province (required under the Collective Agreement) because she could not find anyone to look after her two and six year-old children after normal working hours while she was away. The children’s father also worked for CN as a locomotive engineer and he was away working for periods of 14 to 24 hours.

In the other case, the Canadian Border Service Agency refused the employee’s request for fixed shifts so she could arrange for the care of her two young children upon her return from maternity leave. Her husband also worked for CBSA on rotating 24/7 shifts. CBSA had an unwritten policy that fixed shifts were reserved for part-time workers and told this woman that she would have to give up her full-time status if she wanted fixed shifts, with the resulting loss of pension and other benefits.

Each case went before the Canadian Human Rights Tribunal and in each case the Tribunal held that the employer had illegally discriminated against these women on the basis of their “family status”. The Tribunal found in both cases that the employer had failed to discharge its duty to accommodate.

In the CN case, the Tribunal ordered the worker’s reinstatement without loss of seniority with reduced compensation for her lost earnings (due to failure to mitigate), plus damages for pain and suffering and the employer’s “wilful or reckless conduct” totalling $35,000, plus interest. CN was ordered to amend its policies and provide corrective training for its managers.

In the CBSA case, the Tribunal ordered the employer to cease its discriminatory practices and to compensate the employee for her lost wages and benefits, including overtime and pension contributions. That Tribunal also ordered CBSA to pay damages amounting to $35,000 plus interest at the Canada Savings Bond rate.

Canadian National and the federal government each sought judicial review of their respective cases before the Federal Court of Canada. The Court agreed with the Tribunal in separate decisions (with minor variations in CBSA case) written by the same judge and released a day apart in late January and early February, 2013.

Significantly, the Federal Court judge rejected the more stringent test to be applied to employee claims under family status that the British Columbia Court of Appeal used in the “Campbell River” case (2004) under which the employee is required to prove that there has been a “serious interference with parental or other family obligations”, which the BC appeal court said would usually be “difficult to make out”. In these cases the Federal Court opted for a more moderate test that requires the employee to prove simply that she had taken appropriate steps “to reconcile family obligations with work obligations”.

It is of interest that both of these cases involved unionized employees under Collective Agreements. Presumably, the Union could have proceeded to advance these family status claims before a grievance arbitrator but the employees involved (apparently) chose to go to the Canadian Human Rights Tribunal. It is impossible to know from the Court decisions what role the unions involved played in the proceedings, if any. But unions cannot  be mere bystanders in these cases. Unions not only owe a duty of fair representation to their members but they also have a positive legal duty to oppose discrimination in all forms in the workplace. In the CBSA case, the federal government made a formal motion to add the Union as a party before the Tribunal but that motion was opposed by both the Human Rights Commission and the complainant and the motion was dismissed by the Tribunal in separate reasons.

Of course, it makes no difference from a legal standpoint whether the affected employee is in a union or not. These rulings apply with equal force to non-union employees.

While both of these cases dealt with child care situations, it must be noted that the principles involved would apply equally in “elder care” situations as well. Elder care is, of course, of increasing concern to many families.

It is unlikely that these two recent Federal Court rulings will be the last word on the subject of family status claims. These rulings may be appealed, of course, and if they are not, other cases likely will be. Eventually, the Supreme Court of Canada will have to provide guidance on this very significant issue.

In the meantime, lawyers, tribunals, arbitrators and judges will struggle on a case-by-case basis to determine when the duty to accommodate is triggered by child (or elder) care obligations.

The message to employers, large and small, is quite clear: the law recognizes a duty to accommodate your employees’ family obligations. While the exact point at which that duty might be triggered may still be in some doubt, it would be foolish (not to mention potentially very expensive) to ignore your employees’ family care obligations. This is a very specialized area of law and employers (and employees) would be wise to consult with knowledgeable counsel should these issues arise in your workplace.

*Michael Coyle is an experienced employment-labour relations lawyer and a neutral mediator and arbitrator based in Kentville, Nova Scotia. Information provided in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at michael@mvc-private-law.ca  For more information and tips on employment and labour law issues, visit his website at www.michaelcoyle.ca

©Michael V. Coyle, 2013

Workplace Harassment

Isn’t harassment just a matter of opinion?

No. Because of variances in life experiences, different people may have different perceptions of what harassment is, but we can still develop some common understandings. Any unwelcome behaviour that demeans, humiliates, or offends a person, or puts sexual conditions on a person’s job, is harassment.

Harassment is not just one thing. It is a continuum of behaviours that run from comments, jokes, name calling and offensive displays all the way to criminal assaults (sexual and physical) and, in extreme cases, to “criminal harassment”.

What is not harassment?

Two or more employees bantering back and forth is not harassment if everyone involved is in agreement. But if any employee feels uncomfortable with this behaviour, and the behaviour continues even after that person has expressed his or her discomfort, or if the others involved should have known the person was uncomfortable, then it is harassment. This type of harassment can create what is known as a “poisoned work environment,” where employees do not feel safe and feel constantly humiliated.

Management and supervisors are expected to know that the worker may not object to the behaviour but feels coerced into accepting it because they think the other person has more power in the workplace than they do. This can also be seen as harassment.

Normal workplace discipline is not harassment. This includes requiring employees to follow (reasonable) employer policies, correcting the conduct of employees, counselling employees on job performance or conducting normal performance reviews. That does not mean, of course, that employers or supervisors can carry out workplace disciple or counselling in a demeaning or humiliating way or use it as an excuse to discriminate against an employee.

What if everyone else in the workplace is comfortable with the behaviour?

People react to behaviour in different ways. A person may think her or his conduct is welcome or innocuous, when in fact the recipient is offended by it, but is going along with it to avoid a confrontation or further humiliation. This can happen especially where there is a difference in age, racial or cultural background, seniority, level of authority, or personal power between those concerned. Sometimes people feel they have to join in to avoid being ostracized, victimized, or teased by their peers.

How does a person know what behaviour is unwelcome?

Sometimes a person can say directly that something that is offending or humiliating. Other times, we have to be aware of non-verbal messages and clues. If someone looks embarrassed or hurt, turns away, leaves the room, or avoids another, chances are they do not welcome certain behaviour.

The courts have created the “reasonable person” rule; in other words, we assume that a reasonable person would know that certain types of behaviour are unwelcome. For example, a reasonable person would know that asking for sexual favours, and threatening someone’s job if they do not comply, is unacceptable. In cases like this, the courts may presume the behaviour was unwelcome, even if the complainant has never said “no” or “stop,” and seemed to go along with the situation.

Employers should be aware, however, that Courts or Human Rights Tribunals do not always strictly follow an objective (“reasonable person”) standard. As a practical matter, they often put themselves in the shoes of the complainant and ask, “How would I feel if this happened to me?”

What if colleagues want a sexual relationship?

A relationship where both people are involved of their own free will is not harassment. However, if one person decides to end the relationship, the other does not have the right to insist, or to continue the sexual attention. And managers should be cautious when getting involved with workers, especially anyone who is under their supervision. The imbalance of power may mean that the worker has not actually consented, but feels coerced into the relationship.

What if the employer doesn’t know harassment is taking place?

Only employers can really prevent harassment in the workplace. So the ultimate responsibility rests with them. The law says that even an employer who didn’t actually know about the harassment is still responsible, if he or she should have known it was occurring. If an employer can show that he or she took all reasonable steps to prevent and deal with harassment, the legal and financial consequences may well be less severe.

For that reason, an Harassment Policy, with a clear statement that harassment will not be condoned or tolerated by the employer is essential for all employers, regardless of their size or the nature of their business. Employers who do not have a formal Harassment Policy in place run the risk that they will be perceived as condoning or tolerating harassment in their workplace or have created a “poisoned workplace”.

Can it be harassment if it only happened once?

Yes. Frequently, harassment is a series of incidents and the older case law used to speak of harassment as being a “pattern of behaviour”. However, more recent cases have held that even something that only happens once can be harassment, in certain circumstances.

What if the harassment takes place outside the workplace, or after regular work hours?

Any place or time that people are gathered for work-related reasons is still considered part of the “Workplace”. This includes business travel, conferences, telephone calls, company social gatherings, and job interviews. Harassment is not permitted in any of these situations, and employers are responsible for dealing with it in these circumstances.

Increasingly, harassment complaints involve the use of social media. This can occur at the workplace, using company computers, or after hours, using personal computers and devices.

What if I didn’t mean to harm or offend anyone?

Even the best intended comment or action may be harassing, if it is unwelcome or offensive to another person. As a matter of law, harassment is not about a person’s intent. This cannot be over-emphasized. It is about how the behaviour affects the victim. You may only have intended to be funny, for example; but if someone else is humiliated by what you did or said, you may have harassed them without meaning to.

What if someone at work tries to retaliate against a complainant?

Retaliation is against the law. Retaliation against anyone involved in a complaint under Human Rights laws may have serious consequences. Generally, the penalties for retaliation are the same as for the original harassment, and may be even more severe.

What does the employee’s “Family Status” have to do with harassment?

It is illegal under the Human Rights Act for an employer to discriminate against an employee because he or she in a parent-child relationship. If an employee is disadvantaged because of a significant conflict between his/her parental obligations and his/her job, the employer has a duty to accommodate that employee. If, for example, the employee can’t work at night or weekends because of legitimate child-care issues, the employer is usually obligated to accommodate that in her schedule. If the employer or others in the workplace criticize or demean that employee for that, that would amount to harassment under the Human Rights Act.

“Family Status” is a complex and evolving area of Human Rights law and employers should seek specialized legal advice.

What if an employer doesn’t deal properly with a problem of harassment?

An employee who feels her or his concerns have not been properly addressed has the right to contact the appropriate human rights commission or other organization. If an outside agency determines that harassment has taken place, the employer may face financial or other consequences: giving an apology, compensating the complainant for lost wages and injury to self-respect, or human rights training, for example. The exact remedy will depend on the complaint.

Employers should understand that the investigation of complaints is extremely intrusive, time-consuming and expensive. Human Rights investigators have the power to require that the employer produce any and all documents that they consider relevant and they can, and will, interview employers, managers and business owners, often at length, during working hours. There is little an employer (or a lawyer) can do about that.

That is why is it best for all employers to have Workplace Harassment policies in place that are designed to ensure that such matters can be adequately and properly addressed “in house”. It is too late to wait until a Human Rights complaint is made to decide to look into an Harassment Policy.

What happens if the police are involved?

Physical and sexual assault are criminal offences. So too is “criminal harassment”. If the harassment involves physical or sexual assault, or if it may have crossed the line into “criminal harassment”, the police will conduct a criminal investigation and lay charges as appropriate. Employers will often not know that the police are investigating until they show up at the workplace, usually with Search Warrants. Employers should immediately go to a private phone and speak with legal counsel with specialized knowledge this area of the law.

Employers should understand that the law defines “assault”, in essence, as “the least touching without consent”. If the assault is committed for a sexual purpose, it is a sexual assault. The Criminal Code states that an assault can be committed by “acts or gestures”.

This article is for general information only. For advice about your own case please contact me.

Sources: Adapted from Canadian Human Rights Commission, “Anti-Harassment Policies for the Workplace: An Employers Guide” (2007); NS Human Rights Commission, “Guide to Human Rights in the Workplace” (2009), and “Interpreting Family” Status (n.d.).