human rights issues in a changing workforce · 2017-09-12 · human rights issues in a changing...
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Human Rights Issues in a Changing Workforce
RG Workplace Law Summit
September 2017
Sandra Guarascio
604.806.3822
Delayne Sartison Q.C.
604.806.3851
Human Rights Issues in a Changing WorkforceSandra Guarascio
Delayne Sartison Q.C.
Outline
• Aging Workforce• Emerging Issues
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What we will cover
Post-Mandatory Retirement World
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Post-Mandatory Retirement World
• By May of 2008, upper age limits in human rights legislation relating to employment had been removed in all Canadian provinces
• Now mandatory retirement policies are per se discriminatory - lawful only in exceptional cases in which employers can prove that mandatory retirement is a bona fide occupational requirement (“BFOR”)
• BFOR for mandatory retirement requires:– Proof that no one over a certain age can perform job
safely; or– Proof that impossible to individually test abilities of
employees, including those at or above a certain age
• Mandatory retirement now rare
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Benefits Issues
• Subsection 13(3)(b) of the BC HumanRights Code continues to permit age-related distinctions in the operation ofbona fide benefit and pension plans
• So employees may work past age 65, butmay no longer be eligible for certainbenefit plans (eg. LTD) or continue toaccrue pension benefits
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Benefits Issues
• To defend age restrictions in benefit andpension plans must:
– Ensure that employment agreements,collective agreements and policies clearlyand unambiguously articulate agelimitations within pension and benefit plans;and
– Be in a position to establish bona fides ofplans
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Benefits Issues
• BC Human Rights Tribunal has confirmed that benefit and pension plans “bona fide” for purposes of defending age restrictions if “legitimate and adopted in good faith and not for purpose of defeating protected rights”;
• No requirement to demonstrate that plans otherwise “reasonable”: Johnston v. City of Vancouver, 2015 BCHRT 90; Yaremy v. City of Vancouver, 2015 BCHRT98, following New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45
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Performance Management
• Employers can no longer ignoreperformance issues and “wait for retirement”
• Key to avoiding complaints that performancemanagement focused on older workers isdiscriminatory is consistently applying robustperformance management policies andprocedures for all employees, not just thoseover age 65 or approaching normalretirement age
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Performance Management
• Without clear evidence of cause for termination,sudden layoff or termination of older worker, willattract a reasonable inference that age was atleast a factor in the decision
• For example, in Malik v. New Brunswick HumanRights Commission, 2012 NBQB 163termination of a problem employee at age 65 wasdiscriminatory because, despite previouswarnings and reprimands, there was no“culminating incident” following the complainant’s65th birthday
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Accommodation
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Accommodation
• Employers are obligated to prove aninability to accommodate older workers(whether due to disability or age per se)short of “undue hardship” as part of anyBFOR defence to a complaint ofdiscrimination based on age or based ondisability that may be related to age
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Accommodation
• Some particular challenges ofaccommodating the effects of aging:– Impact of aging on ability may be gradual:
accommodation must adjust over time– Age-related impact on ability may never reach
the level of a medical “disability”, but may stillattract an accommodation obligation
– Must ensure that performance assessmentsare factual, not based on perceptions ofinability related to age
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Accommodation
• Employers must consider, among otherthings:– Flexible hours / job sharing– Modifying job duties (rebundle to find
productive job of work that employee canperform – at rate of pay that reflectscontribution)
– Massaging collective agreement restrictions
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Succession Planning/Hiring
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Succession Planning/Hiring
• Succession planning important, butwill not excuse age discrimination orhiring restrictions that are based onage
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Succession Planning/Hiring
• Cannot weed out older workersthrough requirement that applicantsbe available for 5 to 10 years:Cowling v. Her Majesty the Queenin Right of Alberta as representedby Alberta Employment andImmigration, 2012 AHRC 12
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Succession Planning/Hiring
• Cannot rely on perceptions in hiringthat older workers lose strength orability where individual testing can beused to identify individual capabilitiesdespite age: Tearne v. Windsor(City), 2011 HRTO 2294 (school busdriver applicant)
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Elder Care
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Elder Care
• More employees challenged with familyresponsibilities to aging parents as populationand workforce ages
• No BC cases yet, but other jurisdictions haveaccepted that the prohibition againstdiscrimination on the basis of family status,extends to family responsibilities to agingparents: Canada (Attorney General) v. Hicks,2015 FC 599 ; Misetich v. Value VillageStores Inc., [2016] OHRTD No. 1253
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Elder Care
• The BC test for family responsibility-related family status discrimination wouldapply to such claims:– “Has a change in a term or condition of
employment imposed by an employerresulted in a serious interference with asubstantial parental or other family dutyor obligation of the employee”
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Emerging Issues
• Reintroduction of the Human RightsCommission in BC
• New grounds of discrimination
• Competing claims
• Complex workplaces
• The backlash effect
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Reintroduction of the HRC
• Premier’s mandate letter to new AGDavid Eby clearly directs:“Re-establish the Human RightsCommission”
• What will this mean?
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New Grounds of Discrimination
• Trending across Canada– Gender identity or expression
– Genetic characteristics
– Social condition
• What do they mean?
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Gender Identity or Expression
• Gender Identity:– Each person’s internal and individual
experience of gender
• Gender Expression:– How a person publicly presents their gender
• Trans or Transgender:– Umbrella term referring to people with diverse
gender identities and expressions that differfrom stereotypical norms
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Gender Identity or Expression
• Case trends show issues arising in– Support for trans people in the
workplace
– Harassment based on gender identity orgender expression
– Collection and use of information aboutgender identity (applications, birthcertificates, passports)
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Gender Expression
• Browne v. Sudbury Integrated NickelOperations No. 2, 2016 HRTO 62– Insight into how the grounds may be
applied by CHRT and BCHRT
– Upholds a distinction between personalchoice and immutable personalcharacteristics
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Genetic Characteristics
• Captures the refusal to take a genetic test orto disclose the results of a test
• Genetic testing can reveal sensitive healthinformation which may be used todiscriminate in the provision of services(insurance) or employment
• Technology continues to develop and thelaw is attempting to keep up
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Genetic Characteristics
Gattaca (1997)
• https://www.youtube.com/watch?v=hWjlUj7Czlk
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Social Condition
• Quebec: “social condition”
• Alberta: “source of income”
• Defined by Quebec Tribunal inQuébec (Comm. des droits de lapersonne) v. Gauthier (1993), 19C.H.R.R. D/312
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Social Condition
• Objective component: a person’s standingin society is often determined by his or heroccupation, income or education level, orfamily background
• Subjective component: associated with theperceptions that are drawn from thesevarious objective points of reference
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Competing Claims
• Freedom of speech v. Right to arespectful workplace
• What about conflicting protectedgrounds of discrimination?– McCreath v. Victoria Taxi, 2015 BCHRT
153
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Competing Claims
Policy on Competing Human Rights by the Ontario Human Rights Commission: http://www.ohrc.on.ca/en/policy-competing-human-rights
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Competing Claims
1. Recognize the competing rights claims– What are the claims about?– Do they connect to legitimate rights?– Is there more than minimal interference?
2. Reconcile the claims– Is there a solution that involves enjoyment of
each?– Is there a next best solution?
3. Make decisions
Proposed Framework
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Complex Workplaces
• Increased use of technology
• Complex corporate structures
• Multiple employer workplaces
• Schrenk v. BCHRT, 2016 BCCA 146– Is the wrongdoer clothed by the
employer with authority to imposeunwelcome conduct?
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Backlash Effect?
• Anecdotal experience– Increased number of complaints?
– Increased complexity of complaints?
– What do you notice about the nature ofcomplaints?
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The purpose of this presentation is to provide an overview of this area of the law. This does not by any means constitute a full analysis of the law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed. © Roper Greyell LLP 2017
Roper Greyell LLP Employment + Labour Lawyers
1850-745 Thurlow Street, Vancouver, BC V6E 0C5T 604.806.0922 F 604.806.0933 ropergreyell.com
DELAYNE SARTISON Q.C. 604.806.3851
SANDRA GUARASCIO 604.806.3822
Sandra Guarascio 604.806.3822 | [email protected]
Sandra is a partner* at Roper Greyell where she practises in all areas of employment and labour law, with a focus in human rights and respectful workplace issues.
Sandra is focused on the needs of her clients and works with public and private sector employers providing proactive and practical advice for unionized and non-unionized environments. Her particular interests include management-side representation, respectful workplace issues, investigations, hiring and termination issues, accommodation and disability management, collective agreement administration and disputes, workplace policy development and training.
A strong advocate for her clients, Sandra offers a balanced approach to their workplace issues through creative problem solving and strategic intervention. Her methodology to client challenges enables her to find strong and thoughtful solutions. She provides strategic advice to employers in handling complaints and addressing respectful workplace issues including workplace and employment discrimination, harassment, bullying and workplace conflict. She is a skilled investigator who has conducted numerous workplace investigations including those in highly sensitive circumstances and in complex environments. She also designs and conducts workplace audits for employers and handles formal complaints provincially and federally.
Sandra is an experienced facilitator and speaker, an instructor with the Pacific Coast University for Workplace Health Services, and a guest lecturer at the British Columbia Institute of Technology. She is also a volunteer with the BC Law Society and Continuing Legal Education, serving as co-chair of the award winning annual CLE Human Rights Conference.
Outside the office, Sandra recharges by connecting with nature. She can usually be found meandering on beaches and trails with her family and their two much loved Rhodesian Ridgebacks.
*Law corporation
Education
B.A., Political Science, University of Victoria LL.B., University of Victoria
Year of call
British Columbia, 2002
Membership/Affiliations
Chartered Professionals in Human Resources of British Columbia and Yukon (CPHR) Canadian Bar Association Institute of Public Administrators of Canada
Listings/Rankings
Best Lawyers in Canada, 2014-2018 (Employment and Labour Law) Who’s Who Legal, 2016, 2017 – Labour, Employment and Benefits Lexpert-Ranked Lawyer, 2016, 2017 CLEBC’s Most Prolific Volunteers (1996 to 2016): Recognized as prolific contributor
Delayne Sartison Q.C. 604.806.3851 | [email protected]
Delayne is a founding partner* of Roper Greyell. A trusted advisor, negotiator and advocate, she advises employers on all aspects of management-side labour, employment and human rights issues in the workplace.
Delayne is a creative yet focused lawyer who efficiently and effectively applies her vast experience to address a wide variety of workplace law challenges facing both public and private organizations. She thrives on partnering with her clients to achieve the best possible outcomes, whether through negotiation, mediation or litigation.
Particularly known for her experience in health sector labour relations, and advising on the application of the Canadian Charter of Rights and Freedoms to collective agreements and collective bargaining, Delayne has also worked with clients on restructuring within the contexts of contracting out work where union agreement restrictions apply, and in the sale or transfer of a business. Other areas of focus include accommodating employees with disabilities (including mental health and addiction challenges), sensitive workplace harassment and conflict, labour arbitration, managing and planning for change in a unionized environment, and bargaining unit structure.
Outside of her practice, Delayne is a committed soccer mom and is a fan and supporter of the Vancouver Whitecaps and Ballet BC. A lifelong lover of dance, Delayne admired performances from upper balcony seats during law school, and remains captivated by the artistry on stage today, albeit from better seats.
*Law corporation
Education
B.Admin, University of Regina LL.B., Osgoode Hall Law School
Year of call
Ontario, 1989 British Columbia, 1992 Queens Counsel, 2011
Membership/Affiliations
Canadian Bar Association Chartered Professionals in Human Resources of British Columbia and Yukon (CPHR BC & YK) Board of the BC Centre for Ability (Vice President)
Listings/Rankings
Lexpert (labour relations, employment, workplace human rights, workers compensation) Best Lawyers in Canada, 2011-2018 Chambers Global, 2013- 2017 Chambers Canada, 2016, 2017 Who’s Who Legal, 2015-2017 – Labour, Employment and Benefits Lexpert-Ranked Lawyer, 2016, 2017 Best Lawyers, Lawyer of the Year (Vancouver), 2018