Human Rights Issues in a Changing Workforce

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1 Human Rights Issues in a Changing Workforce RG Workplace Law Summit September 2017 Sandra Guarascio sguarascio@ropergreyell.com Delayne Sartison Q.C dsartison@ropergreyell.com

2 Human Rights Issues in a Changing Workforce Sandra Guarascio Delayne Sartison Q.C. Outline What we will cover Aging Workforce Emerging Issues 2 Post-Mandatory Retirement World 3

3 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 4 Benefits Issues Subsection 13(3)(b) of the BC Human Rights Code continues to permit agerelated distinctions in the operation of bona fide benefit and pension plans So employees may work past age 65, but may no longer be eligible for certain benefit plans (eg. LTD) or continue to accrue pension benefits 5 Benefits Issues To defend age restrictions in benefit and pension plans must: Ensure that employment agreements, collective agreements and policies clearly and unambiguously articulate age limitations within pension and benefit plans; and Be in a position to establish bona fides of plans 6

4 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 BCHRT 98, following New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45 7 Performance Management Employers can no longer ignore performance issues and wait for retirement Key to avoiding complaints that performance management focused on older workers is discriminatory is consistently applying robust performance management policies and procedures for all employees, not just those over age 65 or approaching normal retirement age 8 Performance Management Without clear evidence of cause for termination, sudden layoff or termination of older worker, will attract a reasonable inference that age was at least a factor in the decision For example, in Malik v. New Brunswick Human Rights Commission, 2012 NBQB 163 termination of a problem employee at age 65 was discriminatory because, despite previous warnings and reprimands, there was no culminating incident following the complainant s 65 th birthday 9

Accommodation 10 Accommodation Employers are obligated to prove an inability to accommodate older workers (whether due to disability or age per se) short of undue hardship as part of any BFOR defence

5 Accommodation 10 Accommodation Employers are obligated to prove an inability to accommodate older workers (whether due to disability or age per se) short of undue hardship as part of any BFOR defence to a complaint of discrimination based on age or based on disability that may be related to age 11 Accommodation Some particular challenges of accommodating 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 still attract an accommodation obligation Must ensure that performance assessments are factual, not based on perceptions of inability related to age 12

Accommodation Employers must consider, among other things: Flexible hours / job sharing Modifying job duties (rebundle to find productive job of work that employee can perform at rate of pay that

6 Accommodation Employers must consider, among other things: Flexible hours / job sharing Modifying job duties (rebundle to find productive job of work that employee can perform at rate of pay that reflects contribution) Massaging collective agreement restrictions 13 Succession Planning/Hiring 14 Succession Planning/Hiring Succession planning important, but will not excuse age discrimination or hiring restrictions that are based on age 15

7 Succession Planning/Hiring Cannot weed out older workers through requirement that applicants be available for 5 to 10 years: Cowling v. Her Majesty the Queen in Right of Alberta as represented by Alberta Employment and Immigration, 2012 AHRC Succession Planning/Hiring Cannot rely on perceptions in hiring that older workers lose strength or ability where individual testing can be used to identify individual capabilities despite age: Tearne v. Windsor (City), 2011 HRTO 2294 (school bus driver applicant) 17 Elder Care 18

8 Elder Care More employees challenged with family responsibilities to aging parents as population and workforce ages No BC cases yet, but other jurisdictions have accepted that the prohibition against discrimination on the basis of family status, extends to family responsibilities to aging parents: Canada (Attorney General) v. Hicks, 2015 FC 599 ; Misetich v. Value Village Stores Inc., [2016] OHRTD No Elder Care The BC test for family responsibilityrelated family status discrimination would apply to such claims: Has a change in a term or condition of employment imposed by an employer resulted in a serious interference with a substantial parental or other family duty or obligation of the employee 20 Emerging Issues Reintroduction of the Human Rights Commission in BC New grounds of discrimination Competing claims Complex workplaces The backlash effect 21

22 Reintroduction of the HRC Premier s mandate letter to new AG David Eby clearly directs: Re-establish the Human Rights Commission What will this

9 22 Reintroduction of the HRC Premier s mandate letter to new AG David Eby clearly directs: Re-establish the Human Rights Commission What will this mean? 23 New Grounds of Discrimination Trending across Canada Gender identity or expression Genetic characteristics Social condition What do they mean? 24

25 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:

10 25 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 differ from stereotypical norms 26 Gender Identity or Expression Case trends show issues arising in Support for trans people in the workplace Harassment based on gender identity or gender expression Collection and use of information about gender identity (applications, birth certificates, passports) 27

11 Gender Expression Browne v. Sudbury Integrated Nickel Operations No. 2, 2016 HRTO 62 Insight into how the grounds may be applied by CHRT and BCHRT Upholds a distinction between personal choice and immutable personal characteristics 28 Genetic Characteristics Captures the refusal to take a genetic test or to disclose the results of a test Genetic testing can reveal sensitive health information which may be used to discriminate in the provision of services (insurance) or employment Technology continues to develop and the law is attempting to keep up 29 30

Genetic Characteristics Gattaca (1997) https://www.youtube.com/watch?

12 Genetic Characteristics Gattaca (1997) WjlUj7Czlk Social Condition Quebec: social condition Alberta: source of income Defined by Quebec Tribunal in Québec (Comm. des droits de la personne) v. Gauthier (1993), 19 C.H.R.R. D/312 33

Social Condition Objective component: a person s standing in society is often determined by his or her occupation, income or education level, or family background Subjective component: associated

13 Social Condition Objective component: a person s standing in society is often determined by his or her occupation, income or education level, or family background Subjective component: associated with the perceptions that are drawn from these various objective points of reference Competing Claims Freedom of speech v. Right to a respectful workplace What about conflicting protected grounds of discrimination? McCreath v. Victoria Taxi, 2015 BCHRT

Competing Claims Policy on Competing Human Rights by the Ontario Human Rights Commission: http://www.ohrc.on.ca/en/policycompeting-human-rights 37 Competing Claims Proposed Framework 1.

14 Competing Claims Policy on Competing Human Rights by the Ontario Human Rights Commission: 37 Competing Claims Proposed Framework 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 38 39

15 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 impose unwelcome conduct? 40 Backlash Effect? Anecdotal experience Increased number of complaints? Increased complexity of complaints? What do you notice about the nature of complaints? 41 42

16 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 SANDRA GUARASCIO sguarascio@ropergreyell.com DELAYNE SARTISON Q.C dsartison@ropergreyell.com Roper Greyell LLP Employment + Labour Lawyers Thurlow Street, Vancouver, BC V6E 0C5 T F ropergreyell.com law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed. Roper Greyell LLP 2017

Sandra Guarascio 604.806.3822 sguarascio@ropergreyell.

17 Sandra Guarascio 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 managementside 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, (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 dsartison@ropergreyell.com Delayne is a founding partner* of Roper Greyell.

18 Delayne Sartison Q.C 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, Chambers Global, Chambers Canada, 2016, 2017 Who s Who Legal, Labour, Employment and Benefits Lexpert-Ranked Lawyer, 2016, 2017 Best Lawyers, Lawyer of the Year (Vancouver), 2018

Elimination of Mandatory Retirement in BC

Elimination of Mandatory Retirement in BC March 2007 Introduction Supporting employment for older persons The Coalition supports the principle of eliminating mandatory retirement in British Columbia provided