Many human rights disputes happen at the workplace. Employees, or even customers and clients, may feel they have been treated poorly because of a “protected characteristic." Examples of protected characteristics include having a disability, being pregnant, or being a visible minority person. Sometimes employees are sexually harassed by employers, co-workers or customers. Employers should know they are responsible for providing a workplace free of both discrimination and harassment.
Duty to Accommodate
Employers must not discriminate against employees based on protected characteristics, such as disability or gender. In fact, an employer has what is called a “duty to accommodate." This means they must do what is reasonable to allow a person to get, or keep, a job.
Accommodating a person may mean allowing shorter work hours, changing job duties, or providing equipment that will let a person continue to work. All employers must try to accommodate the needs of their employees up to the point of undue hardship. Where this point is depends on several things, including the size of the organization and the role of the employee within the organization. For example, the larger the organization, the greater is the ability to accommodate. Accommodation does not have to be perfect, but it should be reasonable.
It is always best for employers and employees to talk openly and regularly about any needed accommodation. In many cases, a medical or health specialist can provide expert advice on the type of accommodation needed. There is a duty on an employer to ask for medical information if it thinks there is an accommodation issue to be addressed. Employers have a right to be satisfied a) that there is a disability and b) about the specific accommodation it requires.
An employee also has a duty in the accommodation process to provide sufficient medical information to show how his or her medical condition affects his or her ability to do the job. If an employee does not cooperate, the employer may not need to accommodate the employee.
For decades, many people had to retire at age 65 whether they wanted to or not. The Nova Scotia Human Rights Act was amended on July 1, 2009 to eliminate the exemption that let employers discriminate on the basis of a person's age by making them retire.
These amendments prohibit mandatory retirement policies, plans, schemes or practices. As a result, most employers in Nova Scotia may no longer have mandatory retirement policies. There will still be situations where, for legitimate reasons based on job requirements, an employer can require a person to retire. However, this can no longer be based on an arbitrary age limit.
These amendments bring Nova Scotia in line with other national and international jurisdictions.
Examples to Follow
By educating itself on progressive human rights law in general and the Nova Scotia Human Rights Act in particular, every employer can learn to respect and protect human rights. Here are some workplace examples to follow based on real-life experiences.
An employee is responsible for loading and unloading freight at a major manufacturer. A worsening back problem is making it impossible for her to do her job. A medical assessment suggests the employee cannot lift more than 10 kg.
Because the employer has a large number of employees, it has a duty to find a job for the disabled employee. Only if all other jobs in the organization are specialized and beyond the potential ability of the disabled employee can the employer decline to accommodate the employee. That would be the point of undue hardship for the employer. It is not expected to create an unnecessary job for the employee, because an employer is only required to provide reasonable accommodation.
A small organization where there may only be a few employees would reach the point of undue hardship sooner than a larger organization.
Recent Decision: John Tanner v. Alumitech Distribution Centre Ltd
- Decision date: March 2015
- Board chair: Gail Gatchalian
- Finding of discrimination on the basis of disability
- Alumitech ordered to pay Mr. Tanner $2,500 in general damages
A permanent employee tells her supervisor she is pregnant. Although the employer is concerned about the effect of the employee’s maternity leave on productivity, it cannot fire the employee because of this.
The employer can make arrangements for the employee to be temporarily replaced. At the end of the maternity leave, the employee can return to her original or a similar position. Even if the employer prefers the new replacement employee, the employer is not allowed to terminate or demote the returning employee.
A newly-hired employee is shocked to find her new workplace is not welcoming because of her race. As a black Nova Scotian, she is offended by the racist jokes that circulate on the company e-mail. When she raises her concerns to her colleagues, they tell her to toughen up. Several of her colleagues begin ignoring her. She decides to tell her supervisor about her experiences.
The supervisor acts quickly and effectively. Every employee of the company receives a copy of the organization’s policy against discrimination. The employees sharing the racist jokes are given a warning their actions are not acceptable. Regular contact is made with the new employee to ensure she does not experience any more problems. This resulted in the new employee feeling valued and safe in her workplace.
The employer's quick action also served to limit its risk of a human rights complaint by providing its own remedy. It was important in this case that the supervisor acted assertively because, under human rights law, the employer is responsible for the work climate and for dealing with the discriminatory conduct of employees. Merely having an anti-discrimination policy does not excuse the employer. The Nova Scotia Human Rights Commission is much less likely to accept a complaint if a reasonable remedy has already been offered.
Recent Decision: Cromwell v. Leon’s Furniture Ltd.
- Decision date: April 2014
- Board chair: Kathryn Raymond
- Finding of discrimination on the basis of race and/or colour
- Leon's ordered to pay Ms. Cromwell $8,000 in general damage + 18-months lost salary
- Leon’s staff to "be trained in cultural competency in the context of human rights.”
- "I feel that justice has been done," said Ms. Cromwell. "The treatment I experienced was dehumanizing and caused me great personal and professional loss. I feel validated and proud of the fact that I spoke up about what I felt was racial discrimination, a problem that remains far too common in workplaces and communities in Nova Scotia.
Recent Decision: Brothers v. Black Educators Association
- Decision date: August 2014
- Board chair: Donald Murray
- Finding of discrimination based on race and/or colour (colourism)
- Black Educators Association ordered to pay Ms. Brothers $11,000 in general damages & lost income.
- "It is suggested by colourist thinking that the closer one's skin tone is to that of a pure white, the better access one will have to the jobs and accommodation and opportunities available to actual 'white' people," wrote board chair Donald Murray. "At the same time, colourist thinking suggests that the more visibly black, or more visibly East Indian, or more visibly American Indian, or more visibly Asian, one is, the greater potential there will be for discriminatory distinctions to be made based on 'colour'."
Angie enjoys her work and gets along with her co-workers, with one exception. Mark makes her feel uncomfortable because his conversations often turn sexual. Although Mark has never touched her or asked her out, he describes his own sexual activities in graphic detail. Angie and other co-workers have asked Mark to stop, but he has not.
When Angie reports this to her employer, the manager recognizes this behaviour as sexual harassment and knows she has a duty to put an end to it. Mark is aware his comments are unwelcome and make others feel uncomfortable, so he is told very clearly his behaviour has to change. The employer also creates a policy about sexual harassment. This policy tells employees how to treat others in the workplace, and lets employees know how to deal with and report sexual harassment.
Recent Decision: Graham v. Shear Logic Hairstyling
- Decision date: January 2015
Board chair: Kenneth Crawford
Finding of discrimination on the basis of sex (gender), sexual orientation, & sexual harassment
- Respondent ordered to pay Ms. Graham $11,400.00 in general damages plus interest dating back to the time of the incidents
The full text of board of inquiry decisions can be found online at humanrights.novascotia.ca as well as by searching the Canadian Legal Information Institute website at canlii.org.