Part III. Protection against discrimination based on disability, pregnancy or marital status
In this part, we shall examine the protection offered by the Canadian Human Rights Act against discrimination in employment and the resulting duty to accommodate. We are particularly interested in the impact of that duty on the terms of a return to work by persons who have been absent for reasons of disability, pregnancy or marital status. To that end, we shall analyse the roles and responsibilities of the employer, the employee and the union in seeking adjustments that will help keep people working.
3.1 The right to equality under the Canadian Human Rights Act
The Canadian Human Rights Act is designed to extend Canadian legislation by giving effect, within the scope of Parliament’s authority, to the principle of the right of all persons to equal opportunity for personal growth and the satisfaction of their needs.28 In particular, the Act prohibits discrimination in employment based on disability, pregnancy or ma rital status.29
It is discriminatory to refuse to employ or continue to employ any individual or to "differentiate adversely in relation to an employee on a prohibited ground of discrimination."30 Unions are also subject to the Act, which prohibits them in particular from acting with regard to a member31 in a way that denies him or her an employment or promotion opportunity, or impairs such an opportunity.32 The Act also forbids employers and unions to agree on practices or enter into agreements that discriminate with respect to promotion, training, apprenticeship or transfer.33
Disability is the main ground of discrimination cited in complaints to the Canadian Human Rights Commission.34 It is also the main reason for long-term absence from work. It is thus im portant to note that the term is defined very broadly. The Canadian Human Rights Act defines it to include "any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug."35 The Supreme Court has also favoured a wide and liberal interpretation of "disability."36 Protection against discrimination based on a disability covers both actions based on perceptions, myths and stereotypes, and actual functional limitations.37 In particular, the courts have ruled that musculoskeletal diseases, renal failure, psychological or psychiatric illness, vision problems, respiratory problems, migraine, eczema and insomnia may constitute a disability. 38
In the management of the disability of an employee absent on maternity leave or for reasons of disability or marital status, an employer must therefore take care not to act in a manner that could prove discriminatory. To that end, it may have to revise a measure already in place, or make arrangements in the workplace to facilitate an employee’s reintegration.
3.2 The duty to accommodate
After a long absence, it is often necessary to take accommodation measures in an employee’s workplace in anticipation of their return. Accommodation may involve changes in the work environment, duties or hours of work. Under the Canadian Human Rights Act, the employer has a duty to thoroughly evaluate the possibility of taking measures to meet the needs of those to whom the Act refers.39 The duty to accommodate is recognized in all Canadian human rights legislation and is considered an integral part of every collective agreement in this country.40
However, the duty to accommodate is not unlimited. An employee’s right to equality must be balanced against the employer’s right to run a productive workplace. Under section 15 (1)(a) of the Canadian Human Rights Act, a "refusal, exclusion, expulsion, suspension, limitation, specification or preference" is not a discriminatory practice if the employer establishes that it is "based on a bona fide occupational requirement."41 When an employee returns to work, the employer is not obliged to adopt measures to accommodate him or her if it will impose undue hardship on the employer "considering health, safety and cost."42 The three-step test has been spelled out in section 15(2) of the Act since 1998.43 The Supreme Court has listed other factors that may be considered in determining whether accommodation imposes undue hardship. As we shall see, all of these factors vary from case to case, as does their significance.
3.3 Undue hardship with respect to health and safety
A risk to health or safety is often cited by employers in refusing to reinstate a person with a disability in their position or in another suitable position. It is in fact their duty to control, if not eliminate, the risk of relapse and to protect the health and safety of everyone in the workplace.
When an employer cites a risk to the health of an employee, it must be able to demonstrate that the employee’s return to work poses a real and immediate risk of relapse or aggravation. Evidence of a potential or hypothetical risk is not sufficient.44
The burden of proof upon the employer is much less when the safety of the public is at issue.45 However, in order to refuse to reinstate, the employer must show that the employee in question poses a sufficient risk of human error.46 Evidence of a slight or negligible risk will not suffice. In measuring the risk, the employer must take into account the objective dangerousness of the job. There must also be a close relation between continuing to employ someone and the probability that the risk will materialize.47
3.4 Undue hardship with respect to cost
In some cases, the undue financial hardship that would ensue may excuse the employer from the duty to accommodate. This is particularly true of small businesses, for which the cost of accommodation may have a greater impact. As the Canadian Human Rights Commission has stated, "Large corporations, for example, would find it hard to prove undue hardship on the basis of cost alone, as would federal departments and agencies. Such organizations usually have the budgetary and organizational scale and flexibility to accommodate special needs at relatively little cost."48
Factors to be considered in determining the cost impact of accommodation include: the size and financial resources of the employer, the availability of other jobs or of external sources of funding, and the details of any other risk or disadvantage.
3.5 Other factors in the assessment of undue hardship
The Supreme Court has listed other factors that may be considered by an employer in determining whether accommodation imposes undue hardship.49 They include: the nature of the work, the number of employees, their interchangeability and the impact of accommodation on the collective agreement.50 The courts have found that the need to replace someone with special skills, a significantly increased workload for other employees, the need for a major reorganization, the impossibility of a subsequent return to a normal work schedule, and a very high risk of relapse are among that factors that may constituter undue hardship.51 However, there is a school of case law that considers these factors to be less significant, since they are not explicitly referred to in section 15(2) of the Canadian Human Rights Act.52
3.6 The duty to accommodate in cases of excessive absenteeism
An employee may be unable to return to work for a prolonged period or may have to be absent very frequently. While such absences may be justified because of a disability or the employee’s marital situation, an employer is not obliged to indefinitely employ someone who is not capable of normal, regular job performance.53 When absenteeism becomes excessive, the employer resorts to dismissal on administrative grounds. However, for such drastic action to be justified, it will have to show that the employee’s rate of absenteeism has been much higher than that of the other employees over a long period.54 It will also have to prove that the employee’s absenteeism is unlike to improve to enable him or her to meet normal standards of performance and attendance within the foreseeable future.55 Finally, the employer will have to show that the absenteeism imposes undue hardship on its business and that it is not possible to accommodate the employee. This may be achieved by establishing the impossibility of coping with the inconvenience of frequent, sustained and unpredictable absences, such as the effect on staff movements, quality of output and the workload of the other employees.56
Some clauses in employment contracts, collective agreements or absenteeism management policies provide for automatic termination after a prolonged absence. It seems, however, that such provisions do not relieve the employer of its duty to examine the possibilities for accommodation case by case, while respecting the employee’s human rights.57
It may happen that an employee is absent frequently because of various illnesses or accidents. In such cases, it will be difficult to predict the chances for improvement in the record of absenteeism. Frequent absenteeism resulting from minor illness may become dubious and lead to dismissal. The employer may then adopt more of a disciplinary approach (notices, documented meetings).58 It will have to notify the employee that their job is at risk and give them a chance to improve.59 Where there are a number of unrelated illnesses, it will be up to the employee to show the ability to deliver normal job performance.
3.7 The obligations of the employee in seeking accommodation
The employee must cooperate fully in the effort to find reasonable accommodation. Except where circumstances make this impossible, as in the case of certain psychological conditions or a dependence on alcohol, the employee must clearly inform the employer of any needs or limitations that apply upon a return to work60 and facilitate the application of any accommodation measures proposed by the employer and the union. An employee cannot expect a perfect solution and must accept any arrangement that is reasonable in the circumstances.61 For example, if no permanent position is available that meets the employee’s needs, he or she must be prepared to accept training or offers of temporary work, or else lose the possibility of accommodation.62 However, accommodation should not impose an excessive burden on the employee.63 Finally, the employee is always obliged to provide a reasonable explanation of any refusal of an accommodation measure.64
3.8 The obligations of the union in seeking accommodation
When an employee is unionized, the union is obliged to cooperate with the employer in finding a reasonable solution that will respect the employee’s rights while taking into account the constraints that the situation imposes on the employer.65 The union may incur liability jointly with the employer for any prejudice caused to a person who is discriminated against when it has made an insufficient effort to accommodate.66
The unions are often in a delicate position when a solution proposed by an employer conflicts with the rights of other employees provided for in the collective agreement. Some accommodation measures may create resistance among Co-workers, in such matters as a realignment of working hours.67 In many cases, in fact, collective agreements give priority in the choice of hours to employees with more seniority. In such cases, the union may demand that the employer try first to take measures that do not affect rights under the collective agreement, but cannot use the collective agreement as a pretext for objecting to the employer’s suggestions.68 In refusing to comply with a request for accommodation, a union will have to show that an employee’s Co-workers are suffering significant harm or a major infringement of their rights.69 For example, case law is fairly consistent to the effect that a person with a disability may be placed in a vacant position even if they have less seniority than other employees who may want the position.70 It seems, however, that a disability does not allow one employee to take a position occupied by another with less seniority, unless the collective agreement expressly provides for this.71
Additional problems may arise when positions that could meet the needs of an employ ee requiring accommodation are outside their bargaining unit. In a number of cases, adjudicators have ruled that positions outside the bargaining unit must be included in the list of possibilities in seeking an accommodation if no position is available within it.72
Christian Brunelle provides a very good explanation of the challenge unions face in reconciling the interests of all the employees they represent:
"[TRANSLATION] Torn between two legal cultures—labour law, and the equally distinctive human rights law—unions have no choice but to forge connections between them and revise their concepts of democracy accordingly to incorporate the interests both of the majority and of the minority. Should they fail to do so, there is a danger that they will be marginalized in favour of more individualistic pressure groups. However, if they succeed in taking up this daunting challenge, they will find in the diversity of their members the support and creativity they need in order to continue defending their interests far into the future." 73