Archive for August, 2010

Is balancing work and kids a human right?

How far do employers have to go when accommodating personal lives? Case involving Canada Border Services Agency provides more insight

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Work-life balance is a popular buzzword in employment circles. Top employers are being recognized for the efforts they make to attract and retain top talent by being flexible in accommodating the demands of the personal lives of their employees.

And workers in high-demand sectors are picking and choosing employers who make the best effort to allow them to enjoy life. But while having that kind of flexibility can make an employer a top employer, there are costs to doing it. And just how much is an employer required to do to accommodate personal demands on an employee’s time?

We have protections for employees wanting to start a family with employment insurance maternity and parental leave benefits, which generally give parents up to a year between them to take time off to care for a baby while receiving a good chunk of their pay. Employers are required to keep a job open for an employee who takes maternity or parental leave. But what happens when that leave is over? Caring for children can be very demanding of parents’ time. How much should an employer bend so an employee can more easily meet those demands?

Family status is recognized in human rights legislation as a protected ground from discrimination, right alongside things like race, sex, sexual orientation, creed, ethnic background and place of origin. But to what extent? It’s been determined in the past that an employer should only be required to accommodate special parental demands, like caring for a child with a disability. However, more recent cases have moved towards including normal parental duties as requiring accommodation efforts.

Earlier this month, an arbitrator called the Canada Border Services Agency (CBSA) on the carpet for not considering accommodation of an employee who had two young children. The employee, a border services officer at Toronto’s Pearson International Airport, worked rotating shifts. She ended up having two children and with each one she requested regular days with daytime shifts so she could find adequate child care. However, the agency refused to consider the request as it had an unwritten policy not to accommodate employees with normal child care demands.

The agency was well aware of family status as a protected ground of discrimination, but didn’t think it applied to normal parental obligations. CBSA didn’t see the need to expend the extra cost and effort for what amounted to a lifestyle choice by the employee.

An arbitrator set the agency straight, finding accommodation of the employee wouldn’t have put the agency past the point of undue hardship and it should have at least examined the possibility. Due to the importance to society of raising children, the arbitrator felt accommodating normal parental needs was necessary if it was possible for the employer to do.

Parents have long had to balance work demands and raising their children. Many employers who go the extra mile to help employees balance those demands should be applauded. But with family status reaching prominence as a ground for discrimination, should employers be forced to go that extra mile?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, including a special introductory offer for new subscribers, visit www.employmentlawtoday.com.

Hometown heroes: Should pro sports be subject to human rights legislation?

Sports teams play from a different rulebook when it comes to human rights — but does that include discrimination?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Human rights legislation across the country guards against discrimination based on race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction.

This includes employers in their hiring practices and the course of employment. However, certain industries, such as the entertainment industry and professional sports, often play by different rules. Should these different rules also apply when it comes to discrimination?

Major League Baseball has been criticized for the low numbers of minorities in management positions. In recent years, the sport has made efforts to require member clubs to consider minorities when positions for field managers and front office work open up.

However, the numbers still remain low and some feel there’s still some discrimination going on. For example, Toronto Blue Jays manager Cito Gaston won two World Series and several division titles with the team in the early 1990s but, after he left the club in 1997, he didn’t receive any job offers until the Blue Jays brought him back in 2008. He says he was interviewed for several managerial positions, but felt he was a token minority in the process. Could he have pursued a discrimination complaint?

Some general managers of sports teams have preferences for certain types of players. In hockey, there are stereotypes of types of players related to nationality. The gritty Canadian or American, the skilled but lazy Russian, the whiny Swede and the annoying Finn. Sometimes these stereotypes are reflected in how teams put together their rosters. Should they be forced to provide equal opportunities to all nationalities of players?

For example, the Montreal Canadiens have always faced pressure about how many anglophone and francophone players they have, which is a reflection of language politics in that city. For a long time, many felt they gave priority to French-speaking players to satisfy the demands of francophone fans and media. Though this is clearly not the case anymore — their current roster includes only three francophones out of 21 players, two of them from Quebec — if they wanted to give priority to French speakers, should they be allowed to? Wouldn’t that violate the Canadian Human Rights Act’s protection against discrimination based on race and national or ethnic origin? Wouldn’t a team stocking up on only North American players over Europeans also be subject to these protections?

Professional sports follow different rules than most businesses, and they’re often left to govern themselves, with a few exceptions. It’s unlikely lawmakers would normally consider going after teams for what might be considered discriminatory hiring practices — at least as far as players go — because there are a lot of variables to consider. However, what if a player felt he was cut or not signed in favour of another player solely because of his language or nationality? Could he file a human rights complaint, and would it have legs? How could a team avoid this perception if it had two players of similar skill but wanted to take one because of where he was from?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that focuses on workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

Look out below: Employees who reach a breaking point

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

By now, many people have heard of Steven Slater, the JetBlue flight attendant who seemed to have reached his breaking point at the end of a flight on which he was working.

While the plane approached the terminal after landing in New York, a passenger got up to get luggage from an overhead department, despite Slater’s request for him to remain seated. Slater argued with the passenger and the luggage fell from the compartment and hit Slater in the head. Slater demanded an apology but the passenger just cursed at him. Slater picked up the intercom, unleashed a tirade of profanity-laced insults, and then pulled the emergency exit lever. He grabbed a beer from the beverage cart and slid down the emergency slide. By the time JetBlue figured out what was going on, Slater had made it all the way home. He was later arrested and charged with criminal mischief and reckless endangerment.

Slater is now out on bail and has another court date in September. His lawyer also recently said Slater wants his job back. He worked as a flight attendant for 20 years and apparently was a good employee before this incident. But does any of that outweigh what JetBlue likely considers very serious misconduct? Should any bad behaviour by passengers be taken into account?

Employers have the right to expect a certain level of professionalism and conduct on the part of employees. In the airline industry, this is particularly important because of security and safety concerns. If a long-time employee with a spotless record suddenly cracks and endangers the health and safety of the workplace, is this grounds for summary dismissal? It’s harder in Canada to summarily dismiss employees, but it is possible if the misconduct is serious enough.

If this happened to a Canadian employer, would this kind of misconduct be enough? Or could it be considered the result of stress caused by verbal abuse and the physical altercation with the passenger, which might mitigate the misconduct? Could the employer trust the employee not to do it again?

Reaction to Slater’s actions has been mixed. Some have made him out to be a working-class hero who finally had enough of being subjected to verbal and physical abuse from passengers in trying to do his job. Others have ripped him for his lack of professionalism and disregard for safety. A JetBlue internal memo acquired by NBC News indicates the airline thinks it unlikely it will let Slater come back to work, even if there was a “precipitating incident,” due to the seriousness of his misconduct. Should he get another chance, or did he burn his bridges when he slid down that slide?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

Are stressful situations ‘unexpected’ for emergency workers?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

It’s not uncommon for workers to get stressed because of their jobs. But there are certainly different types and levels of stress. Office workers can get stressed over piles of paperwork or tight deadlines. But there are dangerous jobs, such as police and firefighting, where stressful situations often mean life or death. However, people going into the latter types of work generally know what they’re getting into.

Acute stress is starting to be recognized as a disability that warrants workers’ compensation benefits if it prevents someone from working, much as a physical injury would. However, in most jurisdictions, there are specific limitations to considering it a compensable condition. For example, the Ontario Workplace Safety and Insurance Board has a policy on “traumatic mental stress” that provides benefits if the stress is “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.”

The event must be clearly identifiable, objectively traumatic and unexpected in the regular course of the worker’s job and work environment. Circumstances such as an officer worker experiencing violence or a fire at work could qualify.

But what about employment where potentially stress-inducing incidents are a regular and expected part of the job? This question was raised when an Ontario police dispatcher had to go off work because of post-traumatic stress disorder that was initiated by a particular call he received and was aggravated by other tense calls.

The dispatcher had worked for 25 years without any problems, but a call where he received a request for emergency response for a police officer left a lasting mark on him. Due to a technical problem he couldn’t locate the officer and there were several tense minutes where he didn’t know what was happening. This incident led to trouble sleeping and other psychological problems for the dispatcher. Later incidents where he spoke to a woman being stabbed and a man who had found his son committed suicide contributed to further stress.

The dispatcher’s claim for workers’ compensation for acute stress was initially denied but eventually approved as an appeal tribunal felt that, although these types of calls were a part of the job, the situation where he didn’t know where the officer was or what was happening was unexpected. The circumstances prevented him from doing his job and that contributed to acute stress which prevented him from working.

Should someone in a job such as a police dispatcher receive workers’ compensation for stress? Though the one call wasn’t typical, shouldn’t emergency calls and tense situations always be expected? Can incidents like this really be considered unexpected in the normal or daily course of employment such as this, which is usually a requirement for worker’s compensation for acute stress-related conditions?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

Freedom of religion – for the employer

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

We’ve all seen cases where employees have fought for the right to assert freedom of religion with relation to their job, but what about the rights of an employer to certain religious beliefs?

Many employers try to hire people who fit with their corporate culture, but what if that culture is reflective of an actual faith, such as for a religious organization? Should it have the right to hire only people who share those beliefs?

This was the predicament for Christian Horizons, an evangelical Christian organization that operates residential homes providing care for people with developmental disabilities. The organization promoted its religious beliefs in its activities at the homes, where they had prayer meetings and other religious activities. However, residents were not required to share those beliefs to be cared for and didn’t have to participate if they didn’t want to.

Christian Horizons generally hired people who were part of the evangelical faith and required employees to sign a lifestyle agreement that reflected its values. However, things got sticky when one employee realized she was a lesbian, which was contrary to the organization’s beliefs and prohibited in the lifestyle agreement. She was eventually fired, at least in part because of the violation of the lifestyle agreement, and Christian Horizons was ordered by the Ontario Human Rights Tribunal to pay the employee $23,000 in damages for discrimination and 10 months’ wages for wrongful dismissal.

Christian Horizons argued it was a religious organization and the Human Rights Code allowed exemptions from the religion grounds for discrimination for such organizations so it could hire those who share its faith. However, the tribunal ruled because it served the public and didn’t limit its services to those of its faith, it couldn’t do so in its hiring processes. The Ontario Superior Court of Justice supported the organization’s right to hire people of its faith, finding “the charitable work they do is an exercise of their religious beliefs and values,” and they didn’t need to limit the recipients to fellow believers to follow those values. However, the court upheld the tribunal’s ruling because Christian Horizons couldn’t prove heterosexuality was a bona fide occupational requirement for her position as a support worker in a group home.

So a religious organization such as Christian Horizons could potentially discriminate against someone who doesn’t share its religious beliefs, but it would have to prove those beliefs were a necessary part of the job. But where is the line drawn?

If Christian Horizons only cared for other evangelical Christians, would it have been able to discriminate against homosexuals? As another example, could a group that believes in face coverings for women refuse to hire or terminate the employment of a woman who doesn’t wear them? And how far can discrimination go if an organization qualifies for exemption from certain grounds? Can it be any faith, as long as it’s sincerely supported? Should the religious beliefs of such an employer hold the same weight as the religious beliefs of employees?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.


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