COMPLYING WITH HUMAN RIGHTS LAWS: WHAT FIRST NATIONS EMPLOYERS NEED TO KNOW Landon Young & Jeffrey Murray Stringer LLP Management Lawyers 110 Yonge St. Suite 1100 Toronto, Ontario

Human Rights Legislation  Federal: Canadian Human Rights Act (CHRA)  Provincial: Ontario Human Rights Code  Legal principles are similar although enforcement mechanisms vary

CHRA Interpretive Provision 1.2 In relation to a complaint made under the Canadian Human Rights Act against a First Nation government, including a band council, tribal council or governing authority operating or administering programs and services under the Indian Act, this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests.

CRHC Aboriginal Employment Preferences Policy  Employers may have preferential hiring and employment practices for Aboriginal individuals  S. 16 of the CHRA exemption for discriminatory practices designed to prevent disadvantages that are likely to be suffered by a group of individuals

Prohibited Grounds of Discrimination (Federal)  Race  Sex  Marital Status  Citizenship  Disability  Family Status  Colour  National or Ethnic origin  Religion  Sexual orientation  Conviction for pardoned criminal offence or where record suspension ordered  Ancestry  Age

Indirect or “Adverse Effect” Discrimination  Workplace rules or procedures may be contrary to human rights legislation if they have a discriminatory effect  Particularly common areas of such discrimination include age, gender, disability, religion, family status 6

Indirect or “Adverse Effect” Discrimination – The “BFOR” Exemption  A rule or requirement that has a discriminatory effect may be permitted if the requirement is reasonable and “bona fide” (sometimes referred to as a “BFOR”) 7

Examples of Workplace Practices With Discriminatory Effects  Mandatory attendance policy  Physical requirements for a job that are not reasonable  Random drug or alcohol testing  Preferential hiring, promotion or retention of younger employees

Disabilities  May be illness or injury  May be physical or mental  May be work related or not  Disabilities may include partial or temporary disabilities or impairments  Discrimination because of a perceived disability is prohibited even if the employee is not actually disabled

Accommodation of Disabled Employees  Employers have a duty to accommodate disabled employees to the point of “undue hardship”  Employer can still require that disabled employees be able to perform the essential duties of a job 10

Accommodation of Disabled Employees  Accommodation is a two-way street: the employee must cooperate with the employer’s efforts to accommodate  The employer is entitled to relevant medical information to determine if it can accommodate the employee  Employees who are away from work for a considerable period of time with no reasonable prospect of return may be terminated 11

Attendance Management and Disabled Employees  Employees with disabilities are protected from discipline or termination due to absenteeism as a result of a disability  Employer may terminate if the employee’s absenteeism creates an undue hardship

Attendance Management and Disabled Employees  First Step: Distinguish between “culpable” and “non-culpable” absenteeism  Culpable absenteeism can be grounds for discipline and, if persistent, termination  If the absence is due to the disability => non- culpable

Terminating Disabled Employees  Ensure all reasonable efforts to accommodate have been made  Document efforts at accommodation  For employees on an extended long term disability leave make sure to obtain medical information first to confirm there is no reasonable prospect of return to work in the foreseeable future

Drug & Alcohol Addictions  Drug and alcohol addictions are considered a “disability”  Legitimate employee addictions must be accommodated to the point of “undue hardship” like other disabilities  Drug testing generally considered discriminatory on the basis of disability 15

Family Status  There is a growing body of caselaw imposing duties on employers to accommodate employees with special family responsibilities  Precise scope and extent of the duty depends on the circumstances  Examples of potentially required accommodation include flex hours, reduced hours and leaves of absence 16

Canada v. Johnstone  Employee was working rotating shifts  Employee asked for accommodation in shifts due to child care responsibilities  Employee had to reduce hours to part-time status  Child care duties covered by “family status”  Employer violated the Act  Employer should have attempted to accommodate

Harassment  Harassment based on a prohibited ground of discrimination is prohibited  Employers may be liable for harassment committed by managers or supervisors  Employers have a duty to provide a harassment free workplace

Sexual Harassment  Means any harassment of a sexual nature  May include the following: Jokes of a sexual nature Unwanted compliments regarding appearance Repeated, unwanted asking out on dates or for social meetings Sharing personal, intimate details Distributing obscene pictures or videos to co- workers

Responding to Allegations of Harassment or Discrimination  Ask for complaint to be put in writing  Conduct an investigation Interview potential witnesses Take statements Preserve any electronic evidence ( s, text messages, etc.) Avoid making conclusions based on hearsay or rumours

Responding to Allegations of Harassment or Discrimination  If complaint is substantiated options may include:  Counseling  Disciplinary action (warning, suspension)  Demotion  Termination

Human Rights Enforcement Process (Federal) 1.Complaint to the Canadian Human Rights Commission Mediation Investigation May dismiss complaint or refer to the Tribunal 2.Canadian Human Rights Tribunal Formal hearing and/or mediation Decision and, if complaint substantiated, remedial orders

Tribunal’s Remedial Powers  Order adoption of a special plan or program  Reinstate employee  Award for lost wages and compensation for loss of job  Award for pain and suffering (max. $20,000)