Supreme Court Strikes Drug and Alcohol Testing

Is random drug and alcohol testing legal in Canadian workplaces?  There still may not be an absolutely clear answer to that question but the Supreme Court of Canada has restored an arbitrator’s decision in a unionized workplace that a universal random testing regime was an affront to the dignity and privacy of employees.  It held that there was insufficent evidence of enhanced safety risks to justify the policy.  The fact that the workplace was dangerous did not, in itself, give the employer a carte blanche to impose the policy unilaterally.

In Communications, Energy and Paperworkers of Canada, Local 30 v. Irving Pulp & Paper Ltd., the Supreme Court reviewed a case that had started as a grievance filed by a teetotalling employee, who had not had a drink in 30 years.  The grievance had been filed to challenge a policy of mandatory drug and alcohol testing that the employer had unilaterally imposed.  At the grievance arbitration, the arbitrators noted that there had been 8 incidents of alcohol consumption or impairment over a 15 year period.  None of these incidents had led to accidents, near misses, or injuries.  The arbitrators concluded that the harm to employee privacy and dignity substantially outweighed the safety-risk justification of upholding the policy.    The Supreme Court ultimately agreed, overturning decisions of two levels of New Brunswick courts, which had reversed the arbitrators’ decision.

The majority had this to say about the standard for testing:

“the dangerousness of a workplace — whether described as dangerous, inherently dangerous, or highly safety sensitive — is, while clearly and highly relevant, only the beginning of the inquiry.  It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”

The 3-judge minority of the Court issued a blistering dissent in which it argued that the arbitrator’s decision was outside of the range of reasonable outcomes and had been properly reversed by the New Brunswick courts.  The minority would have found that there had been sufficient evidence of safety risk to justify the unilateral imposition of a universal drug and alcohol testing policy.  In its view, there was sufficient evidence of safety considerations to outweigh the incursion into employee privacy rights.

The case is considered relevant and applicable, primarily, to unionized workplaces.  But the impact may be very significant, across a range of workplaces.  In unionized workplaces, the Supreme Court has made it clear that employers will need to meet a high threshhold to justify the unilateral imposition of a universal testing policy.  In non-unionized workplaces, the Court’s decision may well wind up having an impact.  Human rights tribunals across Canada and Canadian Courts will be required to take notice of the Supreme Court’s assessment of the importance of employee privacy and dignity in Canadian workplaces.

While it is too early to assess the extent of the impact this will have, it seems likely to help the cause of employee privacy rights across Canada in many different contexts.



Should Canadian Employees Have Faith in Workplace Accommodation of Religion?

Canadian employers are required to accommodate the needs of religious employees in the workplace.  This requirement can extend to a number of different issues including weekly Sabbath Observance, religious holy days, daily prayer breaks, religious dress and, sometimes, disputes relating to employer requirements.  I will be speaking about this issue at the Law Society’s Annual Six Minute Employment Lawyer Conference on June 13, 2013.

This is a short list of a few of the main topics that I will be covering and some of the key points:

1.  Workplace  Accommodation: Sabbath Observance:  Many Canadian employees of different faiths observe a weekly Sabbath.  Since the Canadian Charter of Rights and Freedoms (the “Charter”) came in effect in 1985, the Canadian Supreme Court has, on a number of occasions, recognized the importance of accommodating minority religious requirements, including a weekly Sabbath.  Canadian employers are required to accommodate the Sabbath observance of their employees by permitting employees to take the day off unless doing so would create “undue hardship” for employers.  In unionized workplaces, unions are also responsible for cooperating with this duty to accommodate these needs.  There are very few cases in which Canadian courts, tribunals or arbitrators have actually found that it would create “undue hardship” to permit an employee to observe his or her weekly Sabbath, although there have been some.  One recognized exception would be if the employer was looking to hire a person specifically to work on the Sabbath day.  Another would be if work on the Sabbath could be shown to be an essential requirement of the position.  For the most part, however, even small workplaces have been required to permit employees to observe their weekly Sabbath breaks.

2.  Workplace Accommodation: Religious Holy Days:  As with weekly Sabbath observance, Canadian employers have also been required to permit employees to take time off to celebrate or observe religious holy days, subject to “undue hardship.”  This may include a significant number of days in a calendar year.  However, the legal question has been whether employers are required to pay for these observances.  The short answer, for the most part is “no.”  If employers provide “discretionary days off” or “personal days” or most other types of paid days, employees are permitted to use these days, as paid days off, to observe holy days.  Employees are not required, and cannot be required, by their employers to use up paid vacation time for these days. Moreover, if there is a way to make up the days through scheduling time, extra hours, or time shifting, employers are required to permit their employees to use these methods.   Many employers do provide two or three paid annual “personal” or “discretionary” days which employees can use for these purposes.  But, in most cases, employers are not required to pay for religious holy days even though they must permit employees to observe these days by not attending at work.   If employees elect not to use their vacation time for these observances, they can take unpaid holy day time – or try to make up the time otherwise.

3.  Workplace Accommodation: Daily Prayer Breaks: There are fewer cases involving daily prayer breaks.  However, Canadian law recognizes that employers must accommodate these requirements to the point of undue hardship.  Employers may put rules into place to ensure that a workplace or a post is not left vacant while an employee takes a prayer break.  For example, a system of notifying a superior, obtaining approval or “signing out” at the required time may be reasonable.  Employers are not necessarily required to pay for this prayer break time and can ask employees to work extra time to make up this break time – unless the employees are simply using break time that is otherwise available to all employers.  Employers are not necessarily required to provide designated prayer areas, though if this is something that can be arranged, it may be preferable over having the employees leave the workplace.

4.  Workplace Accommodation: Religious Dress: Canadian employers are required to permit their employees to wear various forms of religious dress unless doing so would create undue hardship (which usually means safety concerns in this area).  Thus employees may wear turbans, kippahs (yarmulkes), hijabs, crosses, kirpans and other forms of religiously required headgear or attire to work.  Employers, in most cases, cannot require employees to shave their beards or other facial hair that is grown for religious purposes.  Clothing that is not religiously required but is a cultural practice may be permitted as well, though this may be open to question.  Clothing worn for religious or cultural reasons which completely covers a person’s face such as a niqab or a burka may also create issues if the employee works, for example, in a customer service environment.  Employers may argue that it is an essential requirement of the position that the employee’s face be visible while working.  It is unclear how courts and tribunals will decide these cases.  In 2012, the Supreme Court determined that women who wear niqabs may be required to remove them when testifying in court in some circumstances.  However, this has not yet been applied to workplaces.

4.  Workplace Accommodation: Employer Requirements:  If employees are asked to do something that would violate their religious beliefs, practices or customs, they may be able to get an exemption from these requirements for religious reasons.  The test would be whether the issue can be accommodated without creating undue hardship.  In one case, for example, some 407 employees refused to participate in a new security system that involved biometric hand scans, for fear of having the “Mark of the Beast” imprinted on their hands.  An arbitrator accepted this argument and exempted the employees from the biometric hand scan program, finding that this was something that could be accommodated.  Employers are not required, however, to accommodate religious requirements that would affect the human rights of other employees.  So if, for example, an employee requests that he or she not be required to work with members of the opposite gender, that request need not be accommodated in a Canadian workplace since it would affect the equality rights of other employees.

Other issues may arise that relate to religious freedom in the workplace.  The Supreme Court of Canada has established that employees seeking any of these accommodations for religious purposes are not required to prove that they are religiously required by a particular religion or religious leader to observe such practices.  Rather, they need only prove that they are sincere in their belief and observance of a particular practice.  In other words, employees must show that they believes that they are required to observe a particular practice and actually follow it, sincerely.  If this can be demonstrated, Canadian employers are required, in most cases, to accommodate the practice to the point of undue hardship.

Federal Court: Family Status includes Child Care Responsibilities Under Human Rights Act

Are Canadian employers required to accommodate child care challenges of their employees?  Is this covered by “family status?”  A recent decision of the Canadian Federal Court in AG Canada v. Johnstone  has sided in favour of employees in addressing issue.

The case involved a border services officer, Fiona Johnstone, who was working at Pearson Airport for the Canadian Border Services Agency (“CBSA”).  She had been working on rotating shifts.  After the birth of her children, she requested that she be able to work regular, fixed day shifts to accommodate her child care needs.  She claimed that she could not make child care arrangements that would support the rotating work schedule that she had been on and that her employer should accommodate her requirements by providing her with regular full-time day shifts.  The CBSA refused to accommodate her and she filed a human rights complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status.

In August 2010, the Canadian Human Rights Tribunal allowed Ms Johnstone’s human rights complaint.  It held that the CBSA had discriminated against Ms Johnstone on the basis of family status and that she was entitled to accommodation.  One of the key findings was that the definition of “family status” under the Canadian Human Rights Act includes parental child care responsibilities.  It ordered the CBSA to establish policies that would address family status accommodation issues and to accommodate Ms Johnstone.  It also ordered monetary damages of $35,000 for pain and suffering and for the fact that the CBSA had deliberately denied protection to those seeking family status accommodation.

The CBSA brought an application for judicial review in the Federal Court of Canada.

In its decision released on January 31, 2013, the Federal Court upheld the Tribunal ruling.  It determined that “family status” under human rights legislation – the Canadian Human Rights Act, in particular, includes child care responsibilities.  The Federal Court noted that many border services officers face difficulties with their work-life balance as a result of working for a 24-7 operation that requires employees to work rotating shifts.  However, the Court held that the CBSA was still required to consider Ms Johnstone’s particular situation and accommodate her.  The CBSA made no attempt to do so.  The Federal Court therefore upheld the Tribunal’s decision, including the award of damages to Ms Johnstone.

In many respects, the Federal Court’s decision is not surprising.  Employers have been required, under Canadian human rights law, to accommodate employees for religious reasons, including for example, the right to Sabbath observance or the right not to work on religious holidays.  Employers have also been required to accommodate employees to the point of “undue hardship” with respect to disability issues.   So it makes sense that Courts and Tribunals would find an obligation of accommodation for other human rights categories.

Defining “family status” to include child care obligations is not without its challenges.  Employers may have numerous employees, at any given time, who are struggling with child care arrangements.  It may be that some employers will be able to provide evidence of “undue hardship” by demonstrating that they require employees to work rotating shifts – even on some kind of alternating basis and they cannot accommodate all of the requests for full-time day shifts.  Tribunals and Courts will need to look at the size of the workplace, the ability of the employer to accommodate its employees and other relevant issues.  Employees will also be expected to make some efforts to address their employers’ concerns.

The Federal Court decision does not stand for the proposition that any employee with child care needs can automatically insist on working a full-time day shift while all of the other employees at that workplace are working rotating shifts at all hours.  However, the case does require employers to consider these requests and to try to come up with a way of addressing them.  The CBSA in this case had rejected the idea that it had any obligation to accommodate its employees’ child care needs and that was found to be a violation of the Canadian Human Rights Act.

Many employers across Canada have already implemented policies that provide for reasonable accommodation of employees with child care challenges.  Employers who have not done so may be required t reexamine their policies so that they are meeting their obligations under human rights legislation.

This type of accommodation may not be limited to child care but may also include people with elderly-care responsibilities or employees who must care for infirm or challenged family members.









Racial Discrimination Suit Against The Bachelor Dismissed: Would We Get The Same Result?

Should freedom of expression always trump racial equality in broadcasting?  In a nutshell, that was the issue to be decided by a Tennessee district court earlier this month in a racial discrimination suit.

Two black men, Christopher Johnson and Nathaniel Claybrooks, brought a law suit against ABC.  They claimed that ABC was discriminating against black people by only selecting white contestants as finalists on The Bachelor and The Bachelorette.  The two shows, combined, have run through 24 seasons.  Throughout that time period, none of the finalists have been black – or any other non-white minority.

The plaintiffs alleged discrimination in the casting process and claimed that ABC was specifically excluding non-white candidates.  They argued that this type of racial segregation in the media “perpetuates racial stereotypes and denies persons of color opportunities in the entertainment industry.”  ABC responded by arguing that the “creative process” in producing any television program is fully protected by the First Amendment and that this also applies to the casting process.

The court sided with ABC and dismissed the lawsuit after hearing a motion to strike out the case.  Here is the court’s conclusion:

“The plaintiffs’ goals are laudable: they seek to support the social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes.  Nevertheless, the First Amendment prevents the plaintiffs from effectuating these goals by forcing the defendants to employ race-neutral criteria in their casting decisions in order to “showcase” a more progressive message.”

On one level, the court rightly held there should be a reluctance, on the part of any court, to interfere in what could be classified as creative casting decisions.  It would be hard to argue successfully that a broadcaster should have been forced to include more white people in The Jefferson’s or The Cosby Show or more black gangsters in The Sopranos.  It seems quite reasonable for courts to steer clear from scrutinizing the casting and producing processes for most types of entertainment that are content oriented.  To do so would indeed be to limit freedom of expression in a very serious way.

On the other hand, there must be a difference between casting decisions that really are part of the “creative process” as opposed to casting decisions that apply to reality shows, news broadcasts, sports programs and other types of shows.  If, for example, ABC had a policy of only hiring white news broadcasters, would that not be considered discriminatory?  Would that really be considered part of the “creative process” and thereby excluded from judicial scrutiny?  Could American Idol implement a policy of refusing to allow black contestants, as part of the “creative process?”  Perhaps in the U.S., the First Amendment argument relating to freedom of expression would still win out in these cases, though, as a Canadian lawyer, I am not about to draw that conclusion.

But in Canada, freedom of expression does not simply trump equality rights.  The Canadian Charter contains balancing provisions which provide the courts with the jurisdiction to consider competing rights and look at ways of providing meaningful content to both sets of rights.  If this case had been brought in Canada, the framing of it may have been quite different.  Instead of being presented as a case about the discriminatory messaging that the show was allegedly promoting, the case could have been characterized in Canada as one about equality of opportunity for potential contestants and racial discrimination.

It still may not be entirely clear, even in Canada that courts can or should interfere in the creative process of developing television shows or movies and force media producers to produce all, or even some of their content in a non-discriminatory way.  However, there is probably a reasonable argument in Canada, that the mere selection of candidates for a reality program should be conducted in a non-discriminatory fashion unless it can be demonstrated that there is a legally supportable basis for doing otherwise.   Whether or not that was the case with a show like The Bachelor or The Bachelorette is probably something that, in Canada, would have been tested at a full trial or a human rights tribunal hearing rather than being dismissed outright on a preliminary basis.

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