Topic: Discrimination and harassment

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It’s not discriminatory to pay enhanced pay during maternity leave but only statutory pay during shared parental leave

In the UK, only female employees are eligible for statutory maternity leave. They are also eligible for statutory maternity pay at a fixed rate during such leave subject to certain conditions – and it is common for employers to pay enhanced maternity pay during periods of maternity leave.

Whilst many employers do not pay enhanced paternity pay to those on paternity leave, it has long been accepted that paying enhanced maternity pay is defensible under the provisions of the Equality Act which state that, when determining whether a man has been discriminated against on grounds of his gender, no account … Continue Reading

Will Artificial Intelligence Need Human Rights Training ?

The Financial Post interviews Norton Rose Fulbright Canada LLP’s patent and trademark lawyer Maya Medeiros on Artificial Intelligence’s discriminatory biases.

Despite all of the advances in the field of artificial intelligence (AI), experts reveal that these technologies are not immune from some of the less-than-admirable tendencies which afflict humans.

As recently reported by the Financial Post, experts have noted increasing biases that plague the decisions made by AI software. Specifically, AI outputs have been found to discriminate on the bases of race, ethnicity, gender and disability.

This phenomenon presents novel challenges to precisely the areas that have historically been susceptible … Continue Reading

A (Not So) New Test for Family Status Discrimination in British Columbia

It is often a challenge for employers to determine whether they have a duty to accommodate an employee’s “family status” under human rights legislation.  Adjudicators across Canada have taken different approaches to assess whether the duty to accommodate family status has been triggered.  The recent B.C. Human Rights Tribunal decision in Adair v. Forensic Psychiatric Services Commission (No. 2), 2017 BCHRT 147 (“Adair”), demonstrates that some Tribunal members continue to resist the most stringent test for complainants that is binding law in B.C.

Background

Darcy Adair lost his commercial driver’s license as a result of an epileptic … Continue Reading

Harassment and violence in the workplace : changes to be expected for federally regulated employers

After a few politicians at the federal and provincial levels recently stepped down because of sexual misconduct allegations, lawmakers debated Bill C-65 in the House of Commons this week.

Tabled in November 2017, Bill C-65 aims to amend “the Canada Labour Code (CLC) to strengthen the existing framework for preventing harassment and violence, including sexual harassment and sexual violence, in the workplace”.

Minister of Employment, Workforce Development and Labour Patty Hajdu’s approach is focused on occupational health and safety, with amendments to Part II of the CLC to bring psychological injuries or illnesses in the realm of workplace accidents to … Continue Reading

Un salarié protégé peut-il contester la rupture conventionnelle homologuée dont il a fait l’objet devant le juge judiciaire ?

Les salariés protégés (représentants du personnel, délégués ou représentants syndicaux, salariés mandatés, etc.) bénéficient d’un statut particulier, eu égard à leur rôle dans l’entreprise. A ce titre, toute modification, et a fortiori, rupture de leur contrat de travail doit être autorisée par l’inspection du travail.

La conclusion d’une rupture conventionnelle homologuée, quand bien même il s’agit d’un mode de rupture qui suppose l’accord du salarié, ne déroge pas à cette règle. Afin que la rupture conventionnelle soit valablement conclue, l’employeur doit par conséquent solliciter et obtenir l’autorisation de l’inspection du travail.

Cette procédure a une incidence directe sur le contentieux … Continue Reading

Sexual harassment settlements (and attorneys’ fees) may no longer be tax deductible for employers

As a result of the new tax reform legislation, employers may no longer deduct on their tax returns any “settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement” (emphasis added) or any “attorney’s fees related to such a settlement or payment.”

This change in the tax law became effective on December 22, 2017, when the law was enacted.  Previously, employers who settled sexual harassment claims typically did so confidentially and deducted the settlement payments and related attorneys’ fees as business expenses.

Now, the new rule prohibits such … Continue Reading

Who, me? Could be: SCC extends protections regarding employment under the BC Human Rights Code

In a landmark case, the Supreme Court of Canada has extended the protection it offers to employees from discrimination in the workplace to encompass discrimination perpetrated by an individual with a different employer: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62.

This case answers in the affirmative the question of whether the BC Human Rights Code applies to discrimination perpetrated by someone other than the complainant’s employer or superior.  The decision will have significant implications for employers and all those involved in the workplace.

The case involved two individuals who worked for two different employers at the … Continue Reading

Refresh your feed: Updated Guidance on Social Media Background Checks

Social media is ubiquitous.  Over 20 million Canadians have a social medial account. It is a major source of information about our friends and the world around us.  It is also an important vehicle for recruiting and background information.

Employers will often have good reason to formally check an applicant’s social media profile in the hiring process.  Many will also do so informally.  Recognizing these realities, the BC Information and Privacy Commissioner has provided some updated guidance.  The guidance is good advice as well for employers operating in provinces that do not have private sector privacy legislation as various … Continue Reading

Local doesn’t make the grade: The need to accommodate employees with anxiety when writing qualifying exams

John Betts, (the “Applicant”) was a carpenter and member of the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the “Union”). While the parties were not engaged in a traditional employer-employee relationship, the Applicant was protected from discrimination by the employment related sanctions of the Ontario Human Rights Code (the “Code”).

Like most regulated trades, carpenters undertake an apprenticeship program which consists of on-the-job and in school training. Upon completing the apprenticeship program the Ministry of Training Colleges and Universities administers a qualifying exam. Those who receive a passing grade on the qualifying exam will be issued … Continue Reading

Proposed amendments to the Ontario Human Rights Code include new prohibited grounds of discrimination

On October 4, 2017 Bill 164, The Human Rights Code Amendment Act, 2017 was introduced into the Ontario Legislative Assembly and passed First Reading the same day. If enacted, it would expand the prohibited grounds of discrimination in the Ontario Human Rights Code (the “Code”) to include immigration status; genetic characteristics; police records; and social conditions.  These new grounds would be in addition to the prohibited grounds already covered in the Code, with one notable exception, as explained below.

Bill 164 is a private member’s bill brought by Nathalie Des Rosiers, Liberal MPP for Ottawa – Vanier.  … Continue Reading

I’m sick of this!  But not of that:   Can you fire an employee for working another job while on sick leave?

An employee may be disciplined (including fired) for fraudulent sick leave, but does this include an employee working another job while on sick leave?  Possibly, though employers should exercise caution before pulling the trigger.

In United Food & Commercial Workers, Local 1518 (Sidhu Grievance) v. Sobeys West. Inc., [2016] B.C.C.A.A.A. No. 148 [“Sidhu”], the grievor, a full-time senior cashier in a grocery store, requested vacation leave so that she could operate her new restaurant business.  The employer denied her request.  The grievor  then took sick leave and submitted a medical note citing an inability to work “due … Continue Reading

Employers may be justified in requesting an independent medical examination as part of the procedural aspect of the duty to accommodate

 

Jurisprudence on independent medical examinations (IME) in the context of the employer’s duty to accommodate is sparse.  The Ontario Superior Court of Justice recently provided much-needed guidance in Bottiglia v Ottawa Catholic School Board.  In Bottiglia, the Court held that in certain circumstances, an employer may be justified in requesting an IME as part of the duty to accommodate under the Ontario Human Rights Code (the Code).

The Facts

Marcello Bottiglia worked for the Ottawa Catholic School Board (School Board) from 1975 until he went on sick leave in April 2010.  At … Continue Reading

Employer ordered to pay $141,000 for tort of harassment and intentional infliction of mental suffering at the workplace

In a previous post on this blog, we discussed how an employer’s non-compliance with workplace harassment and violence provisions of the Occupational Health and Safety Act resulted in a $70,000 fine ordered against the employer. Recently, the Superior Court reminded employers of the importance of ensuring that a harassment-free workplace is maintained and that all complaints are taken seriously and thoroughly investigated. After 40 days of trial spanning over the course of a year and a half, the Court in Merrifield v Canada (Attorney General) ordered the Royal Canadian Mounted Police (“RCMP”) to pay general damages of $100,000 and special … Continue Reading

The German law on employee participation is compatible with European law

On July 18th 2017 the European Court of Justice (ECJ) held, that employees of a subsidiary located in the territory of another member state do not have the right to vote and stand as a candidate in elections of workers’ representatives on the supervisory board of the German parent company of that group and that such an exclusion is not contrary to EU law.

The plaintiff is a shareholder of a company, which is the parent company of a group of companies operating in the tourism sector. In the European Union, that group employs around 50,000 people, of which … Continue Reading

UK Employment Tribunal Fees Unlawful

The Supreme Court in the UK handed down its judgement on 26 July 2017, holding that the introduction of fees in the Employment tribunals prevents access to justice and is unlawful under both domestic and EU law. This is a very significant decision in the field of employment law and the enforcement of employment rights.

Under the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 (the Fees Order) introduced in 2013, claimants in Employment Tribunals or the EAT became liable to pay a fee in order to bring and pursue their claims, including both an “issue fee” when a … Continue Reading

An important decision on the implementation of drug and alcohol policies in safety-sensitive workplaces issued by the Supreme Court of Canada

Yesterday, the Supreme Court of Canada issued a much awaited judgment on an appeal from an Alberta Court of Appeal decision in the Stewart v. Elk Valley Coal Corp. case.

Mr. Stewart (the Appellant) worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. As a means to ensure safety in this safety-sensitive working environment, the employer implemented a policy whereby employees were required to disclose any dependency or addiction issues before any drug related incident occurred. If they did, they would be offered treatment. However, the policy also provided that an employee would be … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in South Africa?

Under South African Labour Law, employees who are pregnant or on maternity leave enjoy extensive protection from discriminatory conduct and dismissal if such discrimination or dismissal is directly or indirectly based on their pregnancy. In terms of section 187(1)(e) of the Labour Relations Act, 1995 (LRA), any dismissal based on pregnancy is an automatically unfair dismissal.  Section 6 of the Employment Equity Act, 1998 (EEA) reinforces the Constitutional prohibition against discrimination on the grounds of pregnancy.

Nonetheless, an employer is entitled to dismiss an employee for operational requirements where it can be shown that the dismissal … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in France?

As is the case in many other countries (particularly countries in the European Union, which are covered by EU Directive 92/85/CEE dated 19 October 1992), France has implemented a full set of rules with the goal of protecting pregnant employees or employees on maternity leave against illegitimate termination of their employment contract. These protections also apply in the context of redundancies.

The rules run to the benefit of all female employees, whether employed on a full time or part time basis, including both those on an indefinite term and fixed term employment contracts. However, application of the protective provisions to … Continue Reading

How are pregnant employees in California protected in the event of a redundancy?

Both federal and California laws provide numerous safeguards to protect pregnant employees before, during, and after childbirth. Protections include prohibitions against discrimination during hiring and employment, and against termination based on pregnancy or pregnancy-related conditions, even if legitimate bases also exist for the employer’s conduct. When federal and California laws differ, the employer must provide the greater protection.

General rights and protections owed to a pregnant California employee

Federal and California laws explicitly prohibit discrimination in any term or condition of employment based on pregnancy, childbirth, or other related conditions and require an employer to provide reasonable accommodations (e.g., under … Continue Reading

Do employees who are pregnant or on maternity leave enjoy special protection on redundancy?

It is not unlawful in itself to make an employee redundant who is pregnant or on maternity leave. This means that, subject to the special protection enjoyed in respect of alternative employment referred to below, the fairness and lawfulness of the redundancy dismissal will be determined in the same way as other redundancy dismissals. So, as long as redundancy is the real reason for dismissal, the dismissal is carried out fairly and the rules on alternative employment are followed, there will be no liability for unfair dismissal.

However, if the selection of the employee for redundancy is because she is … Continue Reading

Disability Discrimination on recruitment

It is not only employees who have the right to claim discrimination: Applicants for employment can also be discriminated against. Employers must therefore ensure that any recruitment process is not discriminatory.

A recent case of Government Legal Service –v- Brookes considered a recruitment process to the Government Legal Service (GLS).  Applicants to that service are required to sit a psychometric test known as the Situational Judgement Test (SJT).  The claimant contacted the GLS in advance and informed them that she was likely to find the multiple-choice format of the SJT particularly difficult because of her Asperger’s Syndrome. She suggested adjustments … Continue Reading

Butt out! (ergonomically speaking): British Columbia Court of Appeal outlines management and union rights in employee accommodations

On February 28, 2017 the British Columbia Court of Appeal issued a decision that should be welcomed by unionized employers dealing with accommodating employees.  In Telus Communications Inc. v. Telecommunications Workers’ Union, 2017 BCCA 100 the issue was whether the employer was able to deal directly with its unionized employees when attempting to accommodate those employees or whether there was a duty to first consult with the union.

The Union’s position was that the certificate of bargaining authority gave it the right to engage in all requests for accommodation for a medical disability.  In the case before the Court … Continue Reading

Expanding definition of “sex discrimination” under Title VII

The Judiciary continues to act where Congress will not

All employment attorneys—and most employers—know that Title VII bars discrimination based on certain enumerated personal characteristics: race, color, religion, sex, and national origin. It has long been the case that “sex” meant biological sex only, i.e., discriminating against a woman because she is a woman, or against a man because he is a man, is plainly illegal under Title VII.

By contrast, unlike some equivalent state laws, it has long been clear that Title VII does not guard against discrimination based on sexual orientation.  Indeed, Congress has on a number … Continue Reading

Human resources managers can be indirectly liable for harassment

Health and safety of employees is highly protected in France. Employers are  responsible for the prevention of any damage to their employees’ health and safety resulting from their work. Amongst other things, French law requires employers to ensure that their employees are protected from any harassment at work.

But another provision of the French Employment Code, which is far less known outside of France, states that employees are also liable to take care, not only of their own health and safety, but also of that of other employees in the company who could be affected by their behaviour or negligence.… Continue Reading

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