Emerging Issues in Human Rights

Transcription

1 Emerging Issues in Breaking New Grounds & Forging New Accommodations? Isabelle French June 22, 2016 Sues

2 Generally Both the Nova Scotia Act and the Canadian Act: o o Prohibit employers from directly or indirectly discriminating based upon an enumerated ground; and Require employers to accommodate employees up to the point of undue hardship. When Legislative an Updates Sues

3 Protected Grounds Age Race Colour Religion Creed Sex Sexual orientation Gender identity Gender expression Physical or mental disability Ethnic, national, or aboriginal origin Source of income Political belief, affiliation or activity Association with another individual or class Marital status Family status Source of income Sues

4 Protected Grounds - Age Why think about age? o There are more people over the age of 65 than under 15 in Canada. o People are working longer. o Changes to mandatory retirement (can t make people retire because of age unless required under pension plan and/or insurance plan that is bona fide ). o Seemingly more claims being brought. Cannot force older workers out through downsizing or layoffs! Sues

5 Protected Grounds - Disability Newly recognized disabilities include: o Electromagnetic hypersensitivity Variety of non-specific symptoms, which afflicted individuals attribute to exposure to electromagnetic fields [WHO] o Miscarriage o Service animals for mental health Sues

6 Protected Grounds Family Status Includes substantive childcare & eldercare obligations. To establish a prima facie case of discrimination: o Child/elder is under his care or supervision; o Obligation engages (legal) responsibility and is not simply a personal choice; o Reasonable efforts made to discharge childcare or eldercare obligations and no reasonable alternative solution is available; and o More than trivial interference with childcare or eldercare obligations. Sues

7 The Duty to Accommodate Employers are required to identify and change any rules, practices, expectations, or procedures that have or may have a discriminatory impact based upon a prohibited ground. Sues

8 what it is not An employer has a duty to accommodate when an employee s obligations to care for a family member, combined with the employer s rules or polices, makes the employee unable to fully participate at work. Employers told they must accommodate staff s child-care requests [CBC News Headline, Feb. 5, 2013] Sues

9 The Duty to Accommodate: Basic Considerations Multi-party inquiry (employer, employee, and union). Each request must be considered individually. Consider: o Health o Safety o Cost o Interchangeability of workforce and facilities o Legitimate operational requirements o Duration of accommodation o Collective agreement requirements is not entitled to the perfect accommodation, only a reasonable accommodation. Sues

10 The Duty to Accommodate: Tips Plan ahead: Review workplace policies and procedures regularly to ensure they keep pace with the law. Once an accommodation request is received: o Meet with the employee and keep an open mind; o Gather all necessary information; o Consider alternatives; o Plan follow-up at time accommodation made; and o Document discussions. Sues

11 Possible Accommodations To infinity and beyond Sues

12 Possible Accommodations - Age Provide additional training Allow employees to work part-time Provide additional time to complete work Provide written instructions for work assignments if memory is an issue Sues

13 Possible Accommodations - Sensitivities Change the employee s work location or hours of work; Change office finishings (remove carpet) Provide flat screens for computers Replace chalkboards with whiteboards Provide portable air purifier Prohibit the use of cleaning products or office supplies that contain volatile organic compounds Sues

14 Possible Accommodations Child/Elder Care Job sharing Change hours of work Allow employee to use overtime, sick time, make-up missed time Allow employee to work compressed work weeks Allow employee to work from home Sues