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The Evolution of Workplace Human Rights

10/03/2016 by Janice Rubin and Titus Totan

A practitioner’s guide to the top 10 developments in workplace human rights over the last 25 years

It is no small feat to identify the most notable developments in workplace human rights over the last 25 years – there are so many cases that could be discussed. To narrow down this subjective list, we focused on the areas of the law that we deal with every day in our practice as employment lawyers. Ours is not a particularly academic list – although there is likely some overlap. Which cases, which concepts, which statutory changes from the last 25 years do we turn to over and over again?

Here is our top 10 list:

1. Rethinking the Bona Fide Occupational Requirement

British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. [1999] 3 SCR 3 (“Meiorin”)

Human rights statutes throughout Canada recognize that bona de occupational requirements (“BFOR”) are not discriminatory. However, the determination as to what constitutes a BFOR fundamentally shifted in the Meiorin decision, in which a universal tness standard for firefighters was challenged as having an adverse effect on women. In finding the standard to be unjustified, the Supreme Court developed a test that has 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?

Since the decision in Meiorin, 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. This benchmark case can be referred to when talking about the process requirements of assessing accommodation needs of employees.

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 accommodating one employee means impacting the rights of another? These can be challenging issues to sort out, but there is now a framework to help guide the process.

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 about a criminal matter, with the rights of the accused to a fair trial. The court endorsed an approach that balances the extent of the competing rights:

  • 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?

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. We look at it whenever we have a matter in which employees’ human rights protections appear to conflict.

3. Recognizing Substantive Equality

Andrews v. Law Society of British Columbia [1989] 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 the extent of the section 15 equality protections. 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. e case involved a lawyer who was denied admission to the British Columbia bar because he lacked Canadian citizenship. The 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, the court held that 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.

Bottom line: treating employees equally does not necessarily mean treating them the same. The approach in Andrews is so well entrenched in workplace norms and values, not to mention the human rights case law, that it is hard to imagine there was a time when we approached assessing equality rights differently.

4. Sexual Harassment as Sex Discrimination

Jansen v. Platy Enterprise Ltd., [1989] 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 in the workplace, the Supreme Court broadly defined sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences.”

Think of everything that has come from this case – from increased vigilance on the part of employers to prevent sexual harassment and to respond to it appropriately, to the growth of workplace investigations and Bill 132 in Ontario and Bill 23 in B.C. Justice Deschamps’ report on sexual harassment in the military and Sheila Fraser’s current inquiry into the handling of sexual harassment complaints and investigations at the RCMP are all part of the legacy of this case. The list could go on and on.

5. Recognizing LGBT Rights

Vriend v. Alberta [1998] 1 SCR 493 (“Vriend”)

The LGBT community has historically been excluded from rights-conferring legislation. It was not until the 1970s and ’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 red as a result of his admitted homosexuality, but was unable to file a discrimination complaint because “sexual orientation” was not a protected ground under 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 discriminating against or excluding individuals on the basis of sexual orientation is inconsistent with the Charter. The decision is viewed as one of the fundamental triggers for the increased recognition of LGBT rights in the 21st century.

6. Accommodating Religious Freedom

Grant v. Canada (Attorney General), 125 DLR (4th) 556 (Fed. C. A.) (“Grant”)

In a complex and diverse society, accommodating religious freedoms is no easy task. In fact, attempts to challenge multicultural policies under the guise of “reverse discrimination” have made their way through the Canadian legal system. Grant was one such prominent case in which a uniform policy of the RCMP, which allowed Sikhs to wear turbans, was challenged as unconstitutional on the grounds that:

  • It compelled individuals to acknowledge the religious traditions of Sikh officers; and
  • It favoured the religious preferences of Sikhs over those of other groups.

In finding that the policy was one which actually encouraged religious freedom, the Federal Court of Appeal judicially stamped recognition of the multicultural nature of Canada. In that respect, the court held that religious protections for one group do not denote a disregard for other groups, nor do they compel other individuals to participate in, adopt or share the associated religious practices.

7. Defining Family Status

Johnstone v. Canada (Border Services Agency), 2014 FCA 110 (“Johnstone”)

The inclusion of “family status” in human rights statutes as a protected ground is a recognition of the nature of modern Canadian families, as well as the competing obligations they often face. However, the scope of the “family status” protection has been a source of discord amongst adjudicators. In Johnstone, the Federal Court of Appeal adopted a broad interpretation of the concept, which has since become one of the leading authorities on the analysis.

In Johnstone, an employer denied a mother’s request for a modi ed work schedule that would permit making adequate arrangements for the care of her child. In finding that the mother had been discriminated against on the basis of family status, the court effectively determined that the concept applies not only to the status of being a family member, but also to the associated legal obligations.

We have only just begun to feel the effects of Johnstone and expect that it will have a broad application – in fact, the principles set forth therein have already been equally applied to eldercare. Think about that in the context of a country that has an aging population soon to be the largest cohort of older persons in Canada’s history.

8. Abolishing Mandatory Retirement throughout Canada

For many years, human rights statutes throughout Canada did not prohibit age discrimination in employment against persons older than a prescribed threshold. Based on that exemption, some employers developed mandatory retirement policies, which arbitrarily ended the employment of employees at the age of 65.

In the last 25 years, provincial legislatures began repealing those exemptions. That nationwide movement culminated in 2012, with amendments to the age provisions of the Canadian Human Rights Act. As a result, Canadian employers are now required to establish that any differential treatment on the basis of age is either justified as a BFOR, or permitted by a prescribed exemption in the applicable legislation. These changes, coupled with the aging workforce, have meant that who we think is too old to work has dramatically shifted.

9. Statutory Accessibility Standards for Persons with Disabilities

Although human rights statutes across Canada have long prohibited discrimination on the basis of disability, few jurisdictions have passed extensive legislation that imposes proactive accessibility obligations on employers in relation to persons with disabilities.

In 2005, the province of Ontario enacted the Accessibility for Ontarians with Disabilities Act (AODA), and became the first Canadian jurisdiction to introduce a comprehensive statutory scheme that seeks to develop, implement and enforce accessibility standards.
The legislation imposes various obligations on certain employers in Ontario, including:

  • Notifying employees and job applicants about the availability of accommodation;
  • Providing employees with accessible communication supports and formats; and
  • Documenting individual accommodation plans for employees with disabilities.

Other Canadian jurisdictions have recently begun to follow Ontario’s lead and develop similar accessibility standards. In fact, the province of Manitoba recently enacted its own legislative scheme, the Accessibility for Manitobans Act. While the implementation of AODA has not been without its challenges, it nevertheless is a signal of a very different way of thinking about disability.

10. The Statutory Duty to Investigate Workplace Harassment and Discrimination

It is one thing for an employee to have human rights protection, but it is quite another to mandate employers with a legal obligation to deal with breaches of these protections. This is how we see the development of the legal obligation to conduct workplace investigations into allegations of workplace harassment and discrimination. The legal obligation has its roots in human rights case law, where some human rights adjudicators (but not all) determined that an employer was obliged to investigate complaints as part of its obligation to provide employees with a workplace free from harassment and discrimination. There has also been movement in employment law cases, where an employer’s failure to investigate has typically triggered awarding of bad faith damages, or has grounded an independently actionable tort.

As a result, there is now a body of case law on workplace investigation. It deals with the circumstances under which an investigation should be conducted, and the procedural content of the employer’s obligation to conduct one, among other things. This simply did not exist 25 years ago.

On Sept. 8, 2016, Ontario’s Bill 132 amended the Occupational Health and Safety Act (OHSA), and imposed upon employers a statutory duty to investigate complaints of workplace harassment. In the absence of a satisfactory investigation, Ministry of Labour inspectors may order an investigation be completed by a third party, at the employer’s expense. This is the first statutory provision of its kind in the country.

Janice Rubin is co-founder and co-managing partner of Rubin Thomlinson LLP. Titus Totan is an associate lawyer at Rubin Thomlinson LLP.