COMPLYING WITH HUMAN RIGHTS LAWS: WHAT FIRST NATIONS EMPLOYERS NEED TO KNOW

Landon Young & Jeffrey MurrayStringer LLP Management Lawyers

110 Yonge St. Suite 1100Toronto, Ontario

416-862-1616www.stringerllp.com

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Human Rights Legislation

Federal: Canadian Human Rights Act (CHRA)Provincial: Ontario Human Rights CodeLegal principles are similar although

enforcement mechanisms vary

CHRA Interpretive Provision1.2 In relation to a complaint made under the Canadian Human Rights Act against a First Nation government, including a band council, tribal council or governing authority operating or administering programs and services under the Indian Act, this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests.

CRHC Aboriginal Employment Preferences Policy

Employers may have preferential hiring and employment practices for Aboriginal individuals

S. 16 of the CHRA exemption for discriminatory practices designed to prevent disadvantages that are likely to be suffered by a group of individuals

Prohibited Grounds of Discrimination (Federal)

Race Sex Marital Status Citizenship Disability Family Status Colour National or Ethnic origin

Religion Sexual orientation Conviction for pardoned

criminal offence or where record suspension ordered

Ancestry Age

Indirect or “Adverse Effect” Discrimination

Workplace rules or procedures may be contrary to human rights legislation if they have a discriminatory effect

Particularly common areas of such discrimination include age, gender, disability, religion, family status

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Indirect or “Adverse Effect” Discrimination – The “BFOR”

Exemption A rule or requirement that has a discriminatory

effect may be permitted if the requirement is reasonable and “bona fide” (sometimes referred to as a “BFOR”)

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Examples of Workplace Practices With Discriminatory

EffectsMandatory attendance policyPhysical requirements for a job that are not

reasonableRandom drug or alcohol testingPreferential hiring, promotion or retention of

younger employees

Disabilities

May be illness or injuryMay be physical or mentalMay be work related or notDisabilities may include partial or temporary

disabilities or impairmentsDiscrimination because of a perceived

disability is prohibited even if the employee is not actually disabled

Accommodation of Disabled Employees

Employers have a duty to accommodate disabled employees to the point of “undue hardship”

Employer can still require that disabled employees be able to perform the essential duties of a job

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Accommodation of Disabled Employees

Accommodation is a two-way street: the employee must cooperate with the employer’s efforts to accommodate

The employer is entitled to relevant medical information to determine if it can accommodate the employee

Employees who are away from work for a considerable period of time with no reasonable prospect of return may be terminated

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Attendance Management and Disabled Employees

Employees with disabilities are protected from discipline or termination due to absenteeism as a result of a disability

Employer may terminate if the employee’s absenteeism creates an undue hardship

Attendance Management and Disabled Employees

First Step: Distinguish between “culpable” and “non-culpable” absenteeism

Culpable absenteeism can be grounds for discipline and, if persistent, termination

If the absence is due to the disability => non-culpable

Terminating Disabled Employees

Ensure all reasonable efforts to accommodate have been made

Document efforts at accommodationFor employees on an extended long term

disability leave make sure to obtain medical information first to confirm there is no reasonable prospect of return to work in the foreseeable future

Drug & Alcohol Addictions

Drug and alcohol addictions are considered a “disability”

Legitimate employee addictions must be accommodated to the point of “undue hardship” like other disabilities

Drug testing generally considered discriminatory on the basis of disability

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Family Status

There is a growing body of caselaw imposing duties on employers to accommodate employees with special family responsibilities

Precise scope and extent of the duty depends on the circumstances

Examples of potentially required accommodation include flex hours, reduced hours and leaves of absence

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Canada v. Johnstone

Employee was working rotating shiftsEmployee asked for accommodation in shifts due

to child care responsibilitiesEmployee had to reduce hours to part-time statusChild care duties covered by “family status”Employer violated the Act Employer should have attempted to

accommodate

HarassmentHarassment based on a prohibited ground of

discrimination is prohibitedEmployers may be liable for harassment

committed by managers or supervisorsEmployers have a duty to provide a

harassment free workplace

Sexual HarassmentMeans any harassment of a sexual natureMay include the following:

• Jokes of a sexual nature• Unwanted compliments regarding appearance• Repeated, unwanted asking out on dates or for

social meetings• Sharing personal, intimate details• Distributing obscene pictures or videos to co-

workers

Responding to Allegations of Harassment or Discrimination

Ask for complaint to be put in writingConduct an investigation

• Interview potential witnesses• Take statements• Preserve any electronic evidence (e-mails, text

messages, etc.)• Avoid making conclusions based on hearsay or

rumours

Responding to Allegations of Harassment or Discrimination

If complaint is substantiated options may include: CounselingDisciplinary action (warning, suspension)DemotionTermination

Human Rights Enforcement Process (Federal)

1. Complaint to the Canadian Human Rights Commission

• Mediation • Investigation• May dismiss complaint or refer to the Tribunal

2. Canadian Human Rights Tribunal• Formal hearing and/or mediation• Decision and, if complaint substantiated,

remedial orders

Tribunal’s Remedial Powers

Order adoption of a special plan or programReinstate employeeAward for lost wages and compensation for

loss of jobAward for pain and suffering (max. $20,000)