Topic: Discrimination and harassment

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Indirect Discrimination in the UK – What must a Claimant Prove?

The Supreme Court in the UK has given its decision in the conjoined cases of Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice, concerning indirect discrimination.  It has held that it is not necessary for a claimant in an indirect discrimination claim to prove the reason why they were put at a particular disadvantage.

Indirect discrimination arises where an employer applies an apparently neutral rule (known as a provision, criteria or practice (PCP)), which puts an employee (and others who share the protected characteristic) at a particular disadvantage compared to others who … Continue Reading

Not on the Menu: Ontario Human Rights Commission releases findings from restaurant dress code inquiry in new report

The Ontario Human Rights Commission (the “Commission”) recently released the findings from its inquiry on sexualized and gender-specific dress codes in a report entitled, Not on the Menu: Inquiry report on sexualized and gender-based dress codes in Ontario’s restaurants. A series of complaints from restaurant workers prompted the Commission to release a policy position in March 2016 and initiate a human rights inquiry in July 2016, with the aim of proactively reducing problematic practices across the province.

In the report, the Commission reminds employers that sexualized and gender-based dress codes may be discriminatory. While employers are free to have … Continue Reading

“Facially unacceptable” – An inexcusable ground for discrimination

This article was written by Purnel Gangiah,  a Candidate Attorney at Norton Rose Fulbright South Africa

The mere fact that an employer considers an employee to be disabled does not necessarily mean that the employee is in fact disabled and cannot fulfill its normal duties at work.

In Smith v Kit Kat Group (Pty) Ltd. (2017) 38 ILJ 483 (LC), the employee attempted suicide which resulted in him being severely injured and disfigured. On his return to work, his employer informed him that he was not “facially acceptable” and that his presence at work would remind the … Continue Reading

Ontario Human Rights Tribunal: Subjective belief can trump facts

Chodha v. 1352866, 2016 HRTO 1241 demonstrates that human rights tribunals will consider an employer’s bona fide subjective belief in deciding whether the employer has provided a reasonable explanation for apparently discriminatory conduct. Indeed, the employer’s belief may take precedence over factual circumstances, as they did in this case.

The case involved the termination of an employee for allegedly falsifying medical evidence in support of a claim for workers’ compensation.  The applicant (“Chodha”) worked as an assembler. He injured his back while at work and consequently visited his physician. The employer terminated Chodha’s employment because his doctor’s note was … Continue Reading

Deeds of release may be set aside if they are brought about as a consequence of unlawful discrimination

The Federal Circuit Court of Australia (FCCA) has found that the Court has the power under s46PO(4) of the Australian Human Right Commission Act 1986 (Cth) (AHRC Act) to set aside a deed of release, where the deed comes into existence as a consequence of unlawful discrimination.[1]Continue Reading

An Employer’s Limited Access to Medical Documentation for Accommodation Requests

In a policy statement released early last month, the Ontario Human Rights Commission (the “Commission”) clarified its position on the scope of medical documentation that employees need to provide when making disability-related accommodation requests to their employers. The policy statement supplements the existing Policy on Ableism and Discrimination Based on Disability, and reminds employers that under the Ontario Human Rights Code (the “Code”), they have a legal duty to accommodate to the point of undue hardship. It is important to remember that although the policies issued by the Commission are not law, they can have a persuasive effect … Continue Reading

Medical Marijuana and Health Benefit Plans

On January 30, 2017, a Board of Inquiry, formed as part of the Provincial Court of Nova Scotia, issued its decision in Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, which found that the denial of an employee’s request for coverage of medical marijuana under a health benefit plan amounted to discrimination under the Nova Scotia Human Rights Act.

On August 13, 2010, the employee was in a vehicle accident while working. As a result of the accident, the employee suffered chronic pain and was diagnosed with anxiety and depression. Conventional drugs proved … Continue Reading

Update regarding protection against religion-based discrimination in France

In France, the issue of religious behavior in the workplace is extremely sensitive.

The principle under French employment law is that while public sector employers are required to enforce a policy of strict neutrality, in private sector companies, a balance must be maintained between the principle of secularism and the prohibition of discrimination based on religious beliefs.

On this basis, French employers can limit certain religious’ behavior in the workplace if :

  • the prohibition is justified by the nature of the tasks to be performed by the employees,
  • the prohibition responds to a determining and essential professional requirement, and
  • the
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New protection of French whistleblowers under the Sapin II Law

Much attention was focused recently on President Obama’s decision, in the final days of his presidency, on commuting the sentence of Chelsea Manning, who provided certain classified information to WikiLeaks. In France, new legislation has recently been passed and implemented harmonizing the protection of whistleblowing employees (https://www.legifrance.gouv.fr/affichTexte.do;jsessionid=4BBFD240827AF0FD9A6340FF254E6F1B.tpdila21v_3?cidTexte=JORFTEXT000033558528&categorieLien=id).

Who is concerned?

Under the new regulation, whistleblowers are defined as “any individual who reveals or reports, acting selflessly and in good faith, a crime or an offence, a serious and clear violation of an international commitment which has been ratified or approved by France or of an unilateral act of … Continue Reading

Women who have suffered workplace discrimination in the RCMP may soon be compensated for decades of mistreatment

Since 2012, two class action lawsuits have been filed against the Royal Canadian Mounted Police (RCMP).  The lawsuits allege that current and former female officers and employees were subject to systemic gender-based bullying, discrimination, and harassment in the workplace, causing the affected women to suffer physical and psychological damage, personal expense, and loss of income, and exposing them to retaliatory abuse by the RCMP. In October, 2016, RCMP Commissioner Bob Paulson publicly apologized to the women who filed these lawsuits, as well as to countless other women in the RCMP who may have suffered similar mistreatment. The apology also contained … Continue Reading

Class action against workplace discrimination

In France, employees who suffer from workplace discrimination are entitled to bring claims against their employer. Workplace discrimination is strictly prohibited and is characterized when a person is treated less favorably than another because of his or her origin, sex, marital status, pregnancy, physical appearance, health, disability, sexual orientation, gender identity, age, political opinions, trade union activities, his/her belonging to an ethnic group, or his/her alleged race or religion.

Employees or future employees who have been subjected to discrimination can either take legal action directly or authorize a union to act on their behalf. However, even if a union takes … Continue Reading

Legislation proposing to add “genetic characteristics” to prohibited grounds of discrimination

Recently, a private member’s bill which proposes to add “genetic characteristics” to the list of prohibited grounds of discrimination under the Ontario Human Rights Code went through its second reading at Queen’s Park and was referred to the committee stage. From an employment law point of view, if this bill is passed into law, the right to equal treatment without discrimination based on genetic characteristics would apply in employment relationships.

One of the driving forces behind this bill is the concern that genetic characteristics, if they become known by someone such as an employer, could be used to discriminate against … Continue Reading

Arbitrator makes further determinations regarding influenza vaccination policies in hospitals.

With the cold weather setting in, flu season is officially in full swing.

Last year, Arbitrator Jim Hayes considered whether hospitals could implement policies requiring nurses to either get the flu shot or wear a mask. In the test case decision of Sault Area Hospital and Ontario Nurses’ Association (“Sault Area Hospital”), Arbitrator Hayes found that the controversial ‘vaccination or mask’ policy (“VOM Policy”) that required nurses to wear surgical/procedural masks throughout the flu season if they have not received vaccination for influenza, was an unreasonable exercise of management rights:

Absent adequate support for the freestanding patient safety purpose

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Title VII sexual orientation claims are gaining traction with more courts

On November 4, 2016, a federal judge in Pennsylvania became the latest jurist to side with the U.S. Equal Employment Opportunity Commission (EEOC) in endorsing the viability of claims based on sexual orientation under Title VII of the Civil Rights Act of 1964. In U.S. EEOC v. Scott Medical Health Center, the EEOC brought suit on behalf of a gay male employee based on a sexually hostile work environment allegedly caused by his male supervisor.  During the EEOC’s investigation into charges filed by the employee’s co-workers, the agency learned of sex-based comments being directed towards the employee, including terms … Continue Reading

What rights and protections are there for part-time workers in the UK?

In the UK, before June 2000 there was no express protection for part-time workers against less favourable treatment when compared with those who work full time. Their only options for legal redress were by way of an equal pay or sex discrimination claim. In 2000 the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (the Regulations) came into force providing specific protection for part-time employees and workers.

What is a part-time worker?

In the Regulations, a part-time worker is defined as a person who is paid wholly or in part by reference to the time they work, and who is … Continue Reading

Does the exercise of the religious right to wear a turban override the obligation to wear a safety hat?

On September 21, 2016, the Québec Superior Court issued a judgment (2016 QCCS 4521) concluding that truckers of the Sikh religion were not exempt from the obligation to wear a safety hat while completing certain work-related tasks out of their trucks on various Port of Montréal premises.

The plaintiffs were truckers from different private transportation companies carrying containers to and from several Port of Montréal terminals. They complained that they were denied access to these terminals because of their sincerely held religious beliefs forbidding them to wear a safety hat over their turban.

For a period of nearly three years, … Continue Reading

Second Circuit’s decision expands liability for discrimination under “cat’s paw” doctrine

You may be familiar with the Aesop fable in which a monkey convinces a naïve cat to burn his paw in order to pull chestnuts from a hot fire for their mutual satisfaction but then eats all the chestnuts himself. This “cat’s paw” doctrine, as it has been coined in employment litigation, has been applied by courts where a decision maker is manipulated by an employee with bad motives into taking an adverse action against another employee.

The United States Supreme Court first validated employer liability under the “cat’s paw” theory in Staub v. Proctor Hospital in 2011, where it … Continue Reading

“Promising practices” encouraged by EEOC to prevent retaliation

The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final “Enforcement Guidance on Retaliation and Related Issues” following a six-month public comment period. The guidance replaces the EEOC’s 1988 Compliance Manual section on retaliation.

Workplace retaliation claims have been on the rise in recent years and have been the focus of several opinions of the U.S. Supreme Court in the past two decades. In fact, charges of retaliation exceeded race discrimination claims in 2009 and comprised nearly 45 percent of all charges received by the EEOC in 2015.

In addition to defining retaliation and providing over thirty … Continue Reading

Fair pay, safe workplaces, and federal contractors telling it like it is

On August 24, 2016, the U.S. Department of Labor (DOL) and the Federal Acquisition Regulatory (FAR) Counsel issued a final rule to implement President Obama’s Executive Order 13673, entitled “Fair Pay and Safe Workplaces,” first announced by the President over two years ago on July 31, 2014.

According to the Federal Acquisition Institute, the purpose of E.O. 13673 is “to help [federal] contractors come into compliance with labor laws – not to exclude contractors.” The final rule implementing the order requires both current and prospective federal contractors and subcontractors to disclose labor law violations and establishes how federal … Continue Reading

Terminating an Employee for Voicing His Political Opinion : What Are The Potential Consequences?

Terminating an employee for expressing his political opinions at work can be costly for an employer. This is what  an employer learned after being ordered to pay 91 073,46 $ to an employee following his termination for sharing his political opinions in the workplace.

In this decision (2015 QCCRT 0399), the « Commission des Relations du Travail » (Commission) held that, not only must the corporation reinstate the plaintiff to his previous position, but the plaintiff was also entitled to compensation for loss of salary, moral as well as punitive damages. As stated in Quebec’s Charter Continue Reading

Does Title VII cover sexual orientation claims? It depends.

In July 2015, the EEOC officially took the position that sexual orientation claims may be brought under the non-discrimination provisions of Title VII of the Civil Rights Act of 1964. However, in the recent case of Hively v. Ivy Tech Community College, the Seventh Circuit refused to accept the EEOC’s position and affirmed the dismissal of a sexual orientation discrimination claim holding that such claims are not cognizable under Title VII.

Following the United States Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, federal courts have consistently recognized sexual stereotype or gender non-conformity claims as a species … Continue Reading

A new model of discrimination?

Last December, the French government passed a bill decreeing that models must now obtain a medical certification in order to be able to work in France. Companies found not to be respecting the new law will be liable to a fine of more than 75,000 euros (approximately $CAN 108,000 at the current exchange rate) and their directors could also be forced to serve up to six (6) months in prison. France is not the first country to adopt a law banning unhealthy models. In 2012, the Israeli government passed a similar law. In some other countries like Spain, Italy and … Continue Reading

The Duty to Accommodate Employees Suffering from Drug Addiction or Alcoholism in Quebec

Alcoholism and drug addiction have been recognized as diseases pursuant to the definition of a “handicap” established within the Quebec Charter of Human Rights and Freedoms.  Therefore, an employee suffering from limitations related to his or her addiction is afforded protection against discrimination guaranteed by the Quebec Charter in Article 10.

What does it mean to accommodate an employee with a handicap in the workplace? The Supreme Court of Canada answered this question in 2008 in the Hydro-Québec case. It stated that the duty to accommodate ends where the employee is no longer able to fulfill the basic obligations … Continue Reading

Continuing Effects of Workplace Policies aren’t New Incidents or Series of Incidents under the Ontario Human Rights Code

Section 34 offers certainty and protection to employers by imposing time limits on claims brought under the Ontario Human Rights Code (“the Code”). Recently, in Meiri v York Region District School Board, the Human Rights Tribunal of Ontario (“the Tribunal”) affirmed the application of these time restrictions to employer policies with continuing effects. Such policies do not constitute new incidents, or a series of incidents, that reset the one-year time limit for bringing claims.

In general, employees seeking to bring a claim under the Code must do so within the timeframe provided by section 34: within one year … Continue Reading

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