Posts Tagged ‘Employment Law’

Beautiful Ageing face eyes

In 2011, Lina Rocha responded to a job advertisement for a personal assistant/receptionist position at Pardons and Waivers of Canada, paying $11.00 per hour for 30 hours per week. Lina was graduating from Microskills and seeking a placement for six weeks. In her email to Pardons and Waivers, Lina mentioned that she would be willing to “for 6 weeks free”. After an exchange of information, Lina was invited to an interview. Prior to the interview however Pardons and Waivers called Lina and asked her how old she was. Lina was turning 45. Lina than received an email saying that the “placement is not suitable for this position”

The Tribunal found that Pardons and Waivers had breached the Code in withdrawing the offer to attend an interview after Lina gave information about her age. During the hearing, Lina stated that she was stressed and depressed following the incident, believing that “it would be hard to find a job with my age…no one would want to hire me”.

In determining remedy, Vice-Chair Judith Keene cited a recent decision of the Tribunal[i] wherein the Tribunal considered two approaches that have been used in the past in assessing the damages for lost opportunity for individuals who did not successfully obtain job postings for discriminatory reasons:

  1. In the first approach the Tribunal would take into account the fact that the Applicant might not have obtained the position in any event, even in the absence of discrimination. If there is a serious possibility that the individual would have obtained the position, then there is loss that is capable of giving rise to an award of damages. The assessment of the amount of damages requires an assessment of the likelihood that the person would have obtained the position in any event.
  2. The second approach would require the Tribunal to assess, on a balance of probabilities, whether or not the Applicant would have obtained the position. If the Tribunal determined he or she would have, damages for lost wages should be awarded. If the Tribunal decided that he or she would not have obtained the position in any event, the Applicant would not be awarded any damages for lost wages.

Vice-Chair Keene adopted the first approach and found that “there is at least a 50% likelihood that the applicant would have continued in employment with the respondent beyond the six weeks of her initial unpaid placement”. What is troubling about this decision is that Vice-Chair Keene did not award lost wages for the six week period that Lina offered to work for free. Lina was in a particularly vulnerable position – she was 45 years old, recently divorced and trying to enter the labour market after a lengthy absence. Vice-Chair Keene acknowledged this, stating at paragraph 6:

The applicant indicated that she had undertaken a job skills upgrading course in computer and customer service skills, after a period of difficult personal circumstances that included the end of her marriage. She had wanted to get into the workforce and do something on her own…

Vice-Chair Keene, a respected members of the Tribunal with extensive experience in human rights, made a critical error in this decision. Lina’s “internship” or offer of free work would not have met the criteria set out in the Ontario Employment Standards Act. The Act sets out the minimum employment entitlements for all workers in Ontario.

Unpaid Internships and the Employment Standards Act

There are two exceptions within the ESA. The first exception applies where the intern is performing their internship under a defined school, college or university program and is not doing the work of an employee.

The second exception applies where the employer is providing training. Within this exception are six criteria must be met before a company can offer an unpaid internship to an employee:

  1. The internship must have an educational purpose for the Intern;
  2. The training must benefit the Intern;
  3. The training cannot benefit the employer in any real way;
  4. The Intern does not displace employees of the person providing the training;
  5. The Intern should not expect compensation for his or her work and must explicitly be told they will not receive compensation, and
  6. The Intern should not be promised a position in the future as incentive to work for free.[ii]

Lina did not have the ability to contract out of the minimum entitlements, and given that the advertisement was for an employee, it certainly could not be suggested that Lina’s situation would fall under criteria 3, 4, and 6 above. The Tribunal did not provide an explanation to explain why an employer would be permitted to reap the benefit of a clear violation of the Employment Standards Act.
Perhaps this is an example of the Tribunal failing to adequately grasp the law separate and apart from the Human Rights Code. Perhaps it was just an oversight.

Case Citation (Liability Decision):   Lina Roche v. Pardons and Waivers of Canada, a division of 1339835 Ontario Limited, 2012 HRTO 2234

Case Citation (Remedy Decision):   Lina Roche v. Pardons and Waivers of Canada, a division of 1339835 Ontario Limited, 2013 HRTO 537


[i] Ravi De Souza v. 1469328 Ontario Inc., 2008 HRTO 23

[ii] See section 3(5) of the Act which excludes individuals “who perform work under a program approved by a college of applied arts and technology or a university.” Then see section 1(2) of the Act which sets out the criteria which makes a person receiving training from an employee, an employee and subject to the minimum standards in the Act.

Racism

The Ontario Human Rights Code protects employees from adverse treatment on the basis of their race. This includes racial stereotypes that may subtly influence decisions, even where the employer is unaware of their influence.

Adams v. Knoll North America Corp.

In Adams v. Knoll North America Corp.[i], a 2009 decision of the Tribunal, an Applicant a self-identified black Applicant became upset at his supervisor and raised his voice and yelled in the workplace. The Applicant’s supervisor felt that the Applicant had lost control and as a result the supervisor felt threatened.

The Applicant was suspended for three-days, and a pre-condition for the Applicant’s return to the workplace was that he undergo anger management counselling through the employer’s assistance plan. The Applicant refused to partake in anger management counselling and his employment was terminated.

The Applicant brought an Application to the Tribunal alleging that he had been discriminated against on the basis of his race. The Tribunal considered whether the Applicant’s race was a factor in the decision to require anger management counselling and found that on a balance of probabilities the employer’s conclusion that he could become violent in the workplace based on one incident of raising his voice and yelling was influenced by the discriminatory stereotype that black men have a propensity to turn to violence.

The Tribunal noted that racial stereotypes can subtly influence decisions, without knowledge or intention. The Tribunal stated:

We have come to understand that the application of racial stereotypes that Black men are prone to violence and criminal behaviour can lead to a greater monitoring and scrutiny of their behaviour. This heightened scrutiny may involve an overreaction to their behaviour when involved in situations that pose challenges for those in authority and this too, can form part of the differential treatment they experience…

The scrutiny itself may be unintentional. The impact of being more highly scrutinized must be examined from the perspective of the racialized person and not from the perspective of those who do not experience it.

CONCLUSION

Employers, landlords, and service providers (including police officers) can be found to have discriminated for decisions that are based, at least in part, on racial stereotypes – even if unintentional. It is important that decision-makers remain aware of the influence of stereotypes and take action to ensure they do not form a part of their decisions.

END NOTES


[i] 2009 HRTO 1381

Kluft zwischen Rollstuhlfahrer und anderen

Employees within Ontario have the right to be treated equally in employment, without discrimination, on the basis of a number of grounds which are set out in section 5 of the Ontario Human Rights:

• Race;
• Ancestry;
• Place of origin;
• Colour;
• Ethnic origin;
• Citizenship;
• Creed;
• Sexual orientation;
• Gender Identity;
• Gender expression;
• Age;
• Record of offences;
• Marital Status;
• Family Status, and
• Disability.

This article deals specifically with the ground of disability. The duty to accommodate is triggered for employers when the employer knows or ought reasonably to know that the employee had a disability.

It is discriminatory to use the application process to screen prospective employees on the basis of disability. In this respect, employers are not permitted to ask questions that reveal information about a Code ground. For example, an employer cannot ask a prospective employee if he or she has a driver’s license if a driver’s license is not an essential element of the job description. Even where a driver’s license is an essential element of the job description for which the employee is interviewing, the employer cannot ask to view the driver’s license or photocopy it. To do so would give the employer information about the employee’s age for example, a protected Code ground. Instead employers should include a statement on the application that a driver’s license is required for an essential element of the position and successful applicants will need to prove they possess a driver’s license.

Upon learning that an employee has a disability, employers have a duty to accommodate short of undue hardship. The duty to accommodate is a two-way street. Employees have an obligation to provide employers with information necessary to determine appropriate accommodation. In some cases, employees will provide their employer with a medical note stating a generic line such as “For medical reasons, Joe can no longer perform his duties as labourer and should instead be moved to the position of reception for a period of two months”. The Tribunal has stated on a number of previous occasions that generic statements are insufficient. It is not the role of a doctor to identify the specific job an employee can perform. Rather, the doctor’s role is to identify the patient’s physical or mental restrictions or the specific disability related accommodated required. The employer should use that information to determine whether and how it can accommodate the individual in the specific workplace in question. The obligation is on the employer to accommodate to the point of undue hardship. When the employer receives a generic medical note, they may request additional information from the employee. Determining the appropriate questions however is the challenge.

The Human Rights Tribunal of Ontario (“HRTO”) has made it clear that employees are expected to waive some privacy in order to open an accommodation dialogue. Generally, employers do not have the right to ask what the diagnosis is, but rather may seek information about the employee’s functional limitations in order to determine how those limitations can be accommodated in the specific workplace. In 2009, the HRTO clarified the information employers are entitled to, stating:

For the purposes of a request for employment accommodation, generally the focus should be on the functional limitations of the employee’s condition (capacities and symptoms) and how those functional aspects interact with the workplace duties and environment. Consequently, an employer need not be informed of the specific cause of the employee’s condition or the exact diagnosis in order to be put on notice that an employee has disability-related needs requiring accommodation…

In order to trigger a duty to accommodation, it is sufficient that an employer be informed of the employee’s disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation…

The Tribunal has found that employees have failed to establish a prima facie case of discrimination in cases where employees fail to provide necessary information to employers. There is often a fine line between inappropriate and appropriate requests for medical information. Be safe and consult a lawyer practicing in human rights law prior to refusing to provide medical information.