Poisoned Work Environment? Not In This Restaurant…

What is a poisoned work environment? And when should the Ontario Human Rights Tribunal award damages to employees who might find themselves in one? That was the subject of a recent Ontario Divisional Court decision in Crépe It Up v. Hamilton.

Katie Hamilton worked as a cashier and cook in Crepe It Up, a small restaurant owned and operated by Chris Quy Lee on Church Street in Toronto. She worked there for about six months. She quit work and filed a complaint against Mr. Lee at the Ontario Human Rights Tribunal, alleging that she had been forced to endure a poisoned work environment.  Ms Hamilton’s claim went to a two day tribunal hearing in May 2012. At the hearing the adjudicator heard evidence of various comments made by Mr. Lee, some of which were only partially contested. The adjudicator made a number of findings of inappropriate comments on the part of Mr. Lee.

The findings included:

  • Lee had referred to a Black employee as being on “Jamaican time”
  • He had made a comment about anal sex to Ms Hamilton that he knew or ought to have known was unwelcome;
  • He had sent an allegedly inappropriate text to Ms Hamilton’s boyfriend when Ms Hamilton had not phoned in to Mr. Lee. This was the day after Halloween and Ms Hamilton had dressed up as Little Red Riding Hood. The adjudicator found that the text said “where is she, did you eat her?” The adjudicator found that this was an unwelcome comment containing sexual innuendo;
  • Staff members were asked to wear buttons that said “A kiss gets you 14% off.” The adjudicator held that Mr. Lee knew or should have known that this was would be an invitation to kiss staff.

Ultimately, the adjudicator held that Ms Hamilton had experienced a poisoned work environment, contrary to section 5(1) of the Ontario Human Rights Code. Ms Hamilton was awarded $3,000 as compensation for injury to dignity, feelings and self-respect. Mr. Lee brought a judicial review application to the Ontario Divisional Court.

The Divisional Court overturned the decision and sent it back to the Tribunal to be heard by a different adjudicator. The Divisional Court decision is somewhat puzzling.

Essentially, the Divisional Court rejected two of the factual findings and conclusions of the adjudicator.

With respect to one set of findings, it questioned the process by which the adjudicator had concluded that the comments about anal sex had been made. As a result, it concluded that the adjudicator’s “finding that the allegation was proved is consequently unreasonable.”

The Divisional Court also took issue with the post-Halloween text. It held that Ms Hamilton’s boyfriend would not have shown the allegedly offensive text to her; that it was not “workplace-related” and Ms Hamilton did not complain about it at the time. The Court concluded that “it is difficult to see how this conduct, even if it is discriminatory, could have contributed to the poisoning of the work environment.”

Accordingly, the Divisional Court found that two of the findings by the adjudicator were “unreasonable” and the “finding of liability based on a poisoned work environment must be set aside.”

What has really occurred here? The Divisional Court, without actually hearing the witnesses at a hearing, has substituted its views for those of the adjudicator. Perhaps, the court did not really believe that these comments, even if all true, were serious enough to warrant a finding of a poisoned work atmosphere. That might have been the court’s prerogative, as a matter of law, but that is not what the court chose to say. Instead, the court held that the adjudicator’s findings were “unreasonable.” While the court may not have liked the adjudicator’s decision, it seems like quite a stretch to call the adjudicator’s conclusions “unreasonable.”

Perhaps the court’s view was coloured by the fact that Mr. Lee is an openly gay man. It may be that the judges of the court had concluded that the comments were not as threatening or offensive when made by a gay man to a female employee as they would have been from a straight boss who was seeking sexual favours from a complainant.

In any case, the divisional court applied the 2013 decision of the Ontario Court of Appeal in General Motors of Canada v. Johnson (2013) ONCA 52. Here is the key passage, picked up by the court:

“[E]xcept for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.”

Following the Johnson decision, the Crépe It Up v. Hamilton decision is a further example of a judicial pendulum that has swung back somewhat in favour of employers. Ontario courts have been making it more difficult for employees to establish a “poisoned work atmosphere” in cases of isolated comments or incidents that are viewed by the courts as less serious. This is a marked departure from some early decisions of the Ontario Court of Appeal in a sexual harassment context, such as Bannister v. General Motors [1998] O.J. No. 3402, in which the court took a much stricter view of certain types of unwelcome comments.

In the present case, the matter is not yet concluded. Crépe It Up may still find itself in hot water at the conclusion of another hearing as long as the reasons of a new adjudicator are not held to be half-baked. The adjudicator will need to sift through the new evidence more carefully and apply the divisional court’s definition of a “poisoned work environment” to all of the evidence that it hears.

Of course, Ms Hamilton may prefer to try to take this case to the Ontario Court of Appeal. She would need to “seek leave” but the Court of Appeal may well agree to hear the case. She could certainly argue that there seems to be some very questionable legal analysis by the Divisional Court in this decision.

This could all make for very interesting law. However, another possibility is that Ms Hamilton might simply choose to drop the matter altogether. Given the amount of money at stake ($3,000 plus legal fees awarded to Mr. Lee of approximately $2,000), this might be the most financially sound decision.

We’ll watch for any developments.

LGBTQ Workplace Issues

It is Worldpride Week in Toronto, the first Worldpride celebration held in North America and one of the largest in the world of its kind.  The festival touts itself as honouring and celebrating the past, present and future for LGBTQ communities everywhere.  It is fitting that the celebration is taking place in Toronto.  Canada is one of the most welcoming countries in the world for LGBTQ communities.  In 2005, Canada became the fourth country in the world to legalize same sex marriage.  Canadian human rights legislation enshrines the prohibition against discrimination, and, of course, expressly references sexual orientation.

Despite the progress that Canada has made, are there still LGBTQ issues in Canadian workplaces?  Absolutely.  Sadly, it is extremely difficult to eradicate every possible manifestation of discrimination, especially those behaviours that are more subtle.  But the challenge facing employers is to take pro-active steps to ensure that workplaces are inclusive and welcoming, rather than merely responding to discrimination when it occurs.

With that in mind, I thought I might reference a few workplace issues that tend to arise that might affect LGBTQ employees.  The list is not all inclusive.

1.   Inclusive Language:  Canadian employers should make every effort to ensure that language used in the workplace is inclusive and non-discriminatory.  Some people may not be aware that they are offending others when they use certain words or expressions.  In other instances, written material, such as newsletters and brochures might not use inclusive language.

Employers should not wait to receive complaints about workplace language or about the lack of inclusivity in written materials.  It may be that the offended employees are not publicly out and would not want to be seen as the ones raising the issues.  But beyond that, it is not even a matter of who was offended on a particular occasion.  The challenge of ensuring an inclusive workplace means that employers must be vigilant about making sure that the workplace and the language used in it is welcoming at all times, even to those who might not be “visible.”

2.  Diversity Training:  Diversity training can help build awareness of LGBTQ issues in workplaces, just as it can also help build awareness of issues that affect other minority religious and cultural groups.   Diversity training can help build sensitivity for managers and supervisors in dealing with LGBTQ employees and can foster an appropriate and welcoming environment in Canadian workplaces.

3.  Publicizing LGBTQ Policies:  Employers should ensure that policies and promotional materials that are used in internal and external communications clarify employer support for LGBTQ employees.  This means that employee handbooks, for example, should mention the use of inclusive language as a policy, diversity training, if it is offered and the fact that the workplace welcomes LGBTQ employees just as it welcomes employees from all other walks of life.

4. Human Rights Policies:  Perhaps it goes with out saying that the Canadian human rights legislation, for example, the Ontario Human Rights Code prohibits workplace discrimination on the basis of sexual orientation.  Employers are required to have policies in place that provide procedures for investigating and handling complaints.  Any allegations of violations of such policies should be taken seriously and dealt with appropriately.

These are just a few of the many issues that LGBTQ employees might face.  During Worldpride week, one presentation on June 26, 2014 focuses on issues that LGBTQ lawyers face in working in the legal profession.  So it is clear that even among lawyers, there are still workplace issues affecting the LGBTQ community.

But overall, Canadians should be proud that these issues are being dealt with, both legislatively and otherwise, in a manner that is, generally, inclusive, fair and welcoming.  Wishing a Happy Worldpride Week to everyone.

 

Does Family Status Include Childcare Needs?

Human Rights legislation across Canada prohibits discrimination on the basis of family status.  But what does that mean?  What does “family status” actually include?  Two recent decisions of the Federal Court of Appeal provide some helpful guidance.  From these cases, it seems clear that family status encompasses the need for an employer to accommodate child care issues that an employee may face.

I reviewed the Federal Court decision of AG Canada v. Johnstone in this blog.  The Federal Court of Appeal (FCA) has now upheld that decision and provided a review of the law relating to family status and child care responsibilities.  This is the decision I would like to address, since the other decision is simply a further example of an application of the Johnstone decision by the FCA.

This article is not a recap of the facts, some of which are described in the previous blog article.  Rather this blog sets out the key rulings of the FCA.  The full text of the decision can be found here.

The Court made a number of key determinations.  First of all, it defined childcare obligations that are included under “family status”:

When is Family Status Engaged?

“The child care obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.  As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.”

The FCA expressly noted that voluntary obligations such as “family activities…extracurricular sports events, etc.,…” are not included.  In other words, according to the FCA, if a person faces “legal obligations” as opposed to “personal choices,” that is when protection on the grounds of family status will be engaged.    This may well be an overly restrictive definition.  A person may feel compelled to take care of a child (or a parent) in certain circumstances where the “legal requirement” is murky.  This contrasts with the manner in which other types of discrimination are engaged, according to the Supreme Court.  For example, to request accommodation of a religious practice, a person is not required to prove that he or she is obligated to perform the particular practice, only that the religious practice is being observed in good faith.  This is the decision of the Supreme Court of Canada in Amselem.

The FCA has defined included childcare obligations in a much narrower fashion for purposes of family status than some of the other rights that are protected, including religion and gender.  Nevertheless, it has likely done so in an effort to restrict the number and types of claims that might be made if family status were to be defined more broadly.

Steps in Claiming Family Status Discrimination

In its decision, the FCA then proceeds to review the specific requirements for making a claim of family status accommodation.

The person must show that the issue is one of “substance and the complainant must have tried to reconcile family obligations with work obligations.”  The employee must be able to show that she or he has “sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill her or his parental obligations.”  That is the first hurdle – demonstrating “prima facie” discrimination.

The FCA then sets out a test to be applied to determine if there has been discrimination.  It involves four factors:

a.  The child must be under the care and supervision of the parent;  (In most cases, this will be automatically proven by the very status of the parents as parents, according to the court);

b.  The childcare obligation engages legal responsibility as opposed to personal choice;  This means that the age of the child is taken into account as well as the type of activity at issue.  As the court mentioned – going on a class trip would not be covered.  Being at home to look after a toddler would.

c.  The parent has made reasonable efforts to meet those obligations but has not been able to come up with an alternative solution;  The complainant must show that neither parent can meet their enforceable obligations while working and that there is no accessible solution.  In other words, the complainant must demonstrate a “bona fide childcare problem.”

d.  The workplace rule that is being questioned interferes with the parent’s obligations in a way that is more than “trivial or insubstantial.”

Johnstone Conclusion

In the Johnstone case, the FCA went on to conclude that each of these factors had been demonstrated and that discrimination on the basis of child care status had been demonstrated.

Most of the orders of the Tribunal were upheld, including a significant award of $15,000 for “pain and suffering.”

Conclusion

This is the type of case that the Supreme Court of Canada may well choose to hear if leave to appeal is sought.  That is not to say that the Supreme Court will substantially alter the decision.  That seems unlikely.  However, the Supreme Court may well determine that it would be appropriate for it to set out its own test for reviewing and assessing family status discrimination cases.  As well, it may view it as an opportunity to review the definition adopted by the FCA and consider whether access to family status protection should be broader.

Alternatively, the Supreme Court may simply choose not to grant leave (i.e. not to hear the case), which would give this FCA decision even greater weight as a Canadian legal precedent.

For now, and quite possibly, for good, it is clear that “family status” under Canadian human rights law includes child care obligations.  Employers are required to take requests for accommodation very seriously and to make significant efforts to work with employees who require accommodations to deal with childcare challenges.

 

Accommodating Religion: In the Canadian HR Reporter

A sneak preview link to my upcoming article in the Canadian HR Reporter.  The article is a discussion of the issue of religious practices in Canada in an employment context.

Accommodating religion – Canadian HR Reporter

 

Limits of Religious Accommodation in the Workplace

What are the limits of religious accommodation in Canada?  Is an employer required to accommodate a request by an employee not to work with an employee of the opposite gender, for religious reasons?

This topic has been generating a great deal of publicity lately in light of recent events at York University.  The National Post reported that the university is continuing to stand by its decision to accommodate the request of a male student to refuse to conduct group work with women, for religious reasons.  (See Tristin Hopper, January 9, 2014).

From the details that have been provided, Professor Paul Grayson received a request from a student in an on-line course to be exempt from a group work project because it would have involved intermingling with members of the opposite gender.  The student raised religious grounds as the basis for the requested accommodation.  The professor opposed the request but sought further clarification form the university.   The Dean’s office and the University’s Centre for Human Rights both took the position that this type of request should be accommodated.

Should Canadian universities and Canadian employers be accommodating this type of request?  Are they required to do so?  Are they permitted to do so?  What are the limits of accommodation of religious practice?

On the one hand, the Canadian Charter and human rights legislation across the country protect religious freedom.  Canadian courts, including the Supreme Court, have consistently recognized that religious practices and requirements must be recognized in a multicultural society to enable Canadians of all different ethnic and religious backgrounds to fully participate in Canadian society.  Our courts have recognized the right of Canadians to wear turbans, kippahs, hijabs and other religious clothing.  Our courts have also provided protection for those who cannot work on certain days for religious reasons and to those who require breaks at certain times during the day for prayer purposes.  In all of these types of cases, the only question has been whether the accommodation will cause “undue hardship.”  In most of these cases, it will not.

But what happens when a requested religious practice or accommodation clashes with the rights of other people?  What happens where the religious right that is to be accommodated will infringe on the fundamental rights of another person, for example the right to gender equality?

There are very few cases to date which have addressed these issues although we are likely to see an increasing number of them over time.  In my view, employers, universities and other institutions must reject requests for religious accommodation if the accommodation will infringe on someone else’s fundamental right.

It is worthwhile mentioning a few cases that have discussed some of the relevant principles:

1.  In the case of Saskatchewan (Human Rights Commission) v. William Whatcott, the Supreme Court upheld certain hate speech restrictions.  The Court expressly noted that religious freedom cannot be used as a basis for justifying hate speech against gay people.

2.  In the Saskatchewan Marriage Commissioners Reference, the Saskatchewan Court of Appeal rejected the argument that the Province must accommodate the religious beliefs of those who would refuse to perform same-sex marriages, while working as marriage commissioners.  The Court of Appeal noted that employees of the Province would be required to serve the public in accordance with existing provincial law.  This decision related to City Hall marriages – or other marriages that were performed by the Province rather than in a religious institution.

3.  In R. v. N.S., a 2012 decision of the Supreme Court, the Court determined that a witness could be required to remove a niqab when testifying in Court in certain circumstances.  The Court highlighted the importance of accommodation of religious practices and discussed the development of this right since the Charter.  But the Court also accepted the principle that there is no “hierarchy of rights” under the Charter,
and sought to protect the rights of an accused to a fair trial.

Looking at some of these important cases that have been decided to date, we can see that Canadian courts will not allow individuals seeking accommodation of a religious practice to undermine the rights of others to an equally important fundamental right.

Imagine an employee of a retail establishment claiming that he or she could not serve employees of a certain ethnicity or religious background.  Would an employer be required to accommodate that request?  “I can’t serve Blacks, Jews or Gays because of my religious beliefs,” says the hypothetical employee.  Surely, employers could not be expected to accommodate this type of request, even if the employee could show that he or she sincerely believed that the requested accommodation was religiously required.  In fact, to do so, would be to violate human rights legislation.  The customer of the retail establishment, if refused service, could assert a breach of the Human Rights Code.

Gender equality must be put in this category as an equally significant and protected right.  Freedom of equality is protected by the Charter.   For someone to argue that he or she cannot work for a boss of the opposite gender, must work only with members of their own gender, cannot be the boss of someone of the opposite gender, or cannot study with someone of the opposite gender would violate the rights of other people to freedom from discrimination.  This is where courts, human rights tribunals and arbitrators must draw the line.

Freedom of religion should be accommodated widely to the point of undue hardship.  This must be the case in a multicultural country.  But Canadians cannot accept that the law requires or even permits people to use freedom of religion to trump the fundamental rights of others, whether at a university or place of employment.

Forced Sick Leave: Is it Constructive Dismissal?

Can an employer insist that an employee take sick leave?  Or is this a constructive dismissal?  A recent decision of the Manitoba Court of Appeal sided with the employee on this issue and awarded the plaintiff more than $340,000 as damages for constructive dismissal.

The case of  Irvine v. Gauthier (Jim) Chevrolet Oldsmobile Cadillac Ltd. (2013 MBCA 93) involved a senior long service employee who was fighting diabetes.  Kelly Irvine had worked for the defendant car dealership for 19 years, mostly as the general manager for new car sales and as a vice-president.  Mr. Irvine was diagnosed with diabetes and lost eyesight in one of his eyes.  He was called into a meeting with the dealership’s owner and told to take a sick leave of indefinite duration.  The dealership then circulated an announcement stating that Mr. Irvine was going on a leave of absence to address his health problems.  The dealership paid Mr. Irvine for two weeks, provided him with long term disability forms and then replaced Mr. Irvine with a new general manager within a month.

Mr. Irvine was not interested in pursuing disability benefits.  Instead, he looked for work.  Four months later, Mr. Irvine located alternate employment with a different company but that employment only lasted for 8 months.  Meanwhile, Mr. Irvine sued his former employer for wrongful dismissal.  The defendant car dealership took the position that Mr. Irvine had resigned.  At trial, the court accepted that the employer had told Mr. Irvine to take time off, apply for disability insurance and convalesce.  However, the judge concluded that based on all of the circumstances, including the fact that Mr. Irvine went and found alternate employment, he had resigned and had not been dismissed.

Mr. Irvine appealed the decision.  The Manitoba Court of Appeal assessed the main issue as being whether or not Mr. Irvine had been constructively dismissed.  After tracing the law of constructive dismissal, it adopted the proposition that forcing an employee to take a leave of absence without a sufficient basis for doing so may constitute a constructive dismissal.  The court noted that if the employer has sufficient medical information or a reasonable plan for reintegration, a forced leave of absence may be sustainable.  But the onus is on the employer to prove that the employee cannot perform the duties of the position.  Key factors include the anticipated duration of the employee’s illness, the nature of employment, the prognosis for recovery, the availability of sick leave and pay, the length of service and other related points.

In this case, the employer did not obtain any of this information.  It simply met with Mr. Irvine and told him that he was being placed on a sick leave.  It then filled his position permanently within a month.  This was a forced leave of absence which constituted a constructive dismissal.  The employer had not obtained any documentation about the plaintiff’s prognosis and had no meaningful discussion with the plaintiff about his ability to perform his duties.  The Court of Appeal reversed the trial decision and held that Mr. Levine had been constructively dismissed.  He was awarded more than $340,000 in damages.

This decision shows that it can be very tricky for both sides to deal with a disability situation.  Employees who are facing medical challenges or other challenges that may require accommodation should be prepared to provide their employers with information about any restrictions they may be facing or any required accommodation.  Employees have the right to refuse to take a leave of absence if they do not feel that it is medically warranted.

Employers have the right to request some information from employees about the need for accommodation if there is evidence that an employee is medically unable to perform the duties of the position.  However, employers may not simply tell the employee to take a leave of absence without having a provable basis for making that request.  If a leave of absence is required, employers should discuss some reasonable plan with the employee based on the employee’s prognosis for a return to work and should hold the position open.  Employers who fail to meet these requirements can be faced with significant damage awards as this case demonstrates.

 

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