To simplify the inquiry process, the commission has developed a publication (in PDF) to provide current information about how human rights law impacts drug and alcohol dependencies in Alberta workplaces. Specifically, the purpose of the document is to:

• Clarify the Commission’s role in preventing discrimination against employees who have drug and alcohol dependencies
• Outline the situations in which an employee may have the basis to make a human rights complaint related to drug and alcohol dependencies in the workplace
• Provide information about when and individual may make a complaint about a potentially discriminatory drug and alcohol policy
• Provide information about the responsibilities of the employer and employee in the accommodation process
• Inform the public that the commission does not have jurisdiction to tell an employer when or whether they can require a drug or alcohol test
• Define the difference between recreational drug and alcohol use and drug and alcohol dependencies

Click to download the full publication (PDF)

“That will send the message that the provinces that do that — Alberta and others that aren’t reflective of these major cities — they will draw in the immigrants and then we’ll see more diversity besides Toronto, Montreal and Vancouver,” he said. —CTV

What do we mean by diversity? Being diverse is a concept tossed around in many areas of life and means different things to different people. (And I’m not talking about Kenny Jenkins. )

In the workplace, diversity needs to be seen as being about individual differences. However, it is important that our workplace discussions around the issue are based on a common understanding.

Some people define diversity as employment equity, in four common groups:

1. visible minorities
2. women in non-traditional roles
3. people with disabilities
4. aboriginal people.

Others see diversity as defined by protected grounds in Human Rights legislation:

• race or colour
• religion or creed
• sex (including pregnancy)
• sexual orientation
• marital status
• family status
• physical or mental disability
• national or ethnic origin
• ancestry or place of birth
• age
• dependence on drugs or alcohol
• etc.

This prohibited grounds list varies from province to province.

So what is the right answer? Workplace diversity can includes the many ways people are different.

When dealing with diversity-based conflict, it is easy to blame what looms large as differences between ourselves and others. Generally, it is the small differences between two people that is the source of conflict. By developing awareness of our own differences and the differences of others, we can develop understanding and work to reconcile instead of one burdened down by conflict.

Three thoughts for consideration:

1. Diversity is positive. We tend to see diversity issues as problematic, creating conflict, low morale, harassment and employee turnover. However, diversity creates benefits for individuals and organizations. When diversity is embraced, an organization can move forward with creativity.
2. Policy isn’t enough. You have likely implemented workplace-diversity or harassment policies to address the challenges of a diverse workplace. These policies tend to focus on the negative. Employers need to shift how the organization and employees perceive and work with each other.
3. Understand that we’re all different. We can no longer identify ourselves as members of a dominant group, seeing ourselves as the norm and others as different. We then think that others need to change so they fit in or become more like us.

We need to stop thinking our way of seeing the world is the only way. There can be other ways of thinking, doing and being.

From the press release announcing the launch:

The bilingual tool www.TOTB.ca is designed for employers, job seekers, employees, union representatives and anyone who supports the employment of persons with disabilities. Sections include practical checklists, the obligations of workplace parties, (policies, practices and facilities), success stories, and links to valuable resources.

“This website offers practical solutions to everyone involved in employing and accommodating persons with disabilities. I firmly believe that finding dignified, creative and flexible solutions to workplace accommodation should be embedded into employment processes -accommodation should not be barrier to employment,” says Dauna Jones-Simmonds, Chair, SES. “The goal is to provide the accommodations needed to allow people to do their jobs successfully.”

Click to read the news release – New Web Tool Promotes Employment for Persons with Disabilities.

Hat tip to Donna Seale.

“who has been practicing in Manitoba since 1995. In 2006, I founded my own consulting company, Donna M. Seale Consulting Services, which provides preventive legal advice, training and investigation services in the area of human rights law to public and private sector employers.”

It is always good to see a blog that comments on questions of law from a Canadian perspective. I’ve added her RSS feed to my Google Reader subscriptions.

In it you will find:

* an outline of the key legal principles that apply to return-to-work situations
* step-by-step procedures to guide your approach to case management
* a series of case studies demonstrating how you could deal with different hypothetical scenarios

While these guidelines will assist you in dealing with return-to-work situations, they are NOT to be taken as legal advice for individual cases, as each case has unique circumstances. You should consult with senior managers, legal advisors, or others in your organization for advice on resolving complex return-to-work cases.

This report is also available in .pdf format.

Canadian Human Rights Commission – A Guide for Managing the Return to Work

Employment Law – Unjust Dismissal – Punitive damages – Standards of Review – Availability of punitive damages for wrongful dismissal if employer’s conduct was discrimination or harassment that breached human rights legislation – Relevance of principles applicable to contracts for peace of mind to punitive damages in an employment law context – Whether a trial judge should conduct independent research other than as to matters of law and, if so, what procedures are required – Whether punitive damages award should be reduced on appeal without increasing compensatory damages; Whether discrimination and harassment should be a separate cause of action; Whether human rights legislation should be incorporated into individual employment contracts; Effect of proportionality on compensatory and punitive damage awards; Whether  overriding and palpable error standard of review should be integrated with  rationality standard of review.

The respondent was employed by the applicant.  He began to suffer from Chronic Fatigue Syndrome.  He received long term disability benefits but the benefits were cancelled and he returned to work.  He continued to experience intermittent absences.   The applicant advised the respondent to apply for a program that exempted employees from attendance-related discipline.  The respondent saw a company physician.  The employment relationship deteriorated.  The respondent retained counsel and his enrollment in the program offering exemption from discipline was cancelled.  The applicant demanded that the respondent see another company physician. The respondent requested more information on the purpose, methodology and parameters of the examination.  The applicant refused to provide further details and the respondent refused to meet the doctor.  The applicant terminated the respondent’s employment.  The respondent brought an action for wrongful dismissal.

I imagine it will be some time before this case is completely resolved.

Supreme Court of Canada – Decisions – Judgements to be Rendered in Leave Applications.

Connie Reeve of Blake, Cassels & Graydon LLP has written a article outlining employer obligations to disabled employees.

What are the practical and legal considerations in an employer’s obligation to accommodate people with disability to the point of undue hardship? Canadian human rights legislation prohibits employers from discriminating against individuals based on disability, which is broadly defined in the legislation to include physical and mental impairment.

Employers, however, frequently have questions about their obligation to accommodate people with disability, as the law has developed, “to the point of undue hardship.” It is important for employers to understand some practical considerations in dealing with disabled employees, the legal restrictions on terminating a disabled employee, and considerations for disabled employees in the context of a corporate transaction.

She outlines 6 practical considerations employers need to keep in mind when dealing with duty to accommodate.

1. Make sure you ask for and receive the information you need to evaluate any accommodation needs.
2. Don’t dismiss a disability because of lack of understanding.
3. Assess accommodation individually for each employee with a disability.
4. Assist in the application process for short or long-term disability insurance.
5. Review your attendance management program.
6. Accommodation includes a requirement to re-employ employees absent from work due to a disability if they can fulfil the essential duties of their pre-disability job with reasonable accommodation.

In addition, she looks at the termination of disabled employees and the responsibilities of a new employer in the case of a share transaction.

Read the entire article at Mondaq: Blake, Cassels & Graydon LLP – Canada – Employer Obligations To Disabled Employees

Diane Carr v. Humpty’s Family Restaurant and Humpty’s Restaurants International Inc. (July 21, 2006; Delano W. Tolley, Panel Chair)

Discrimination – Grounds – Gender – Sexual Harassment – Area – Employment – Kitchen worker alleged sexual harassment at the workplace arising from a colleague’s persistent sexual comments and gestures directed at the complainant – Restaurant manager did nothing when advised of the colleague’s behaviour – When complainant and co-worker threatened to quit if situation was not corrected by management, their employment was terminated – Perpetrator testified he was unaware his comments were offensive to the complainant and his gestures were made in fun – Sexual harassment included inappropriate comments – Express objection need not be shown to establish that the behaviour is unwelcome where a reasonable person knew or ought to have known that it is unwelcome. Complainant awarded $4,000 in damages for pain and suffering, lost wages and reimbursement for costs incurred in bringing the complaint – Complaint allowed.

The complainant kitchen worker alleged sexual harassment in the workplace because of a colleague’s sexual comments and gestures directed to the complainant. The restaurant manager was advised of the behaviour but did nothing. After numerous incidents, the complainant and a co-worker gave the manager an ultimatum that they would quit employment if the situation was not corrected. As a result, both the complainant and co-worker’s employment was terminated. The perpetrator of the comments and objectionable conduct stated he never heard any complaint from co-workers regarding his conduct and that some incidents were made in fun.

HELD: Complaint allowed. Sexual harassment included inappropriate comments. Actions made “in fun” are not relevant to determining whether a violation of the law occurred. Express objection need not be shown to establish that the behaviour is unwelcome where a reasonable person knew or ought to have known that it is unwelcome. The complainant was awarded $4,000 in damages for pain and suffering, lost wages and reimbursement to the complainant for costs incurred in bringing the complaint.

Cases Considered: Janzen v. Platy Enterprises Ltd., (1989) 10 C.H.R.R. D/6205; McNulty v. G.N.F. Holdings Ltd. 16 C.H.R.R. D/418.

Statutes and Regulations Considered: Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, s. 7(1).

Read the complete decision: PDF