Small, non-profit employers frequently come to us with the impression that human rights laws do not apply to them. All employers, no matter how small or underfunded, have a duty not to discriminate and to accommodate individuals who may be experiencing discrimination in the workplace.

Areas in which an employer cannot discriminate under the Ontario Human Rights Code are known as “prohibited grounds” and they are: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.  In addition, every employee has a right to free from harassment based on these “prohibited grounds”, including sexual harassment, in the workplace.  An employee has a right to be accommodated by an employer to the point of “undue hardship”.

The consequences of breaching the duty to accommodate can be severe.

In Ontario, legal procedures were recently revised for filing human rights complaints making the Human Rights Tribunal of Ontario (HRTO) the principal decision-making agency. Any complainant seeking free legal advice can call the Human Rights Legal Support Centre.

The Human Rights Tribunal of Ontario has recently helped wronged employees receive large cash settlements from former employers. Examples include:

• A manager on maternity leave from a travel agency was awarded $27,500 in damages and lost earnings after her boss pressured her to step down, since “women who have children do not really want to be managers.” The workplace she returned to after her leave was so hostile she eventually quit.
• A blind man received $80,000 in a negotiated settlement after the company he had worked at for 20 years refused to recall him after a short, temporary layoff.
• A black woman whose colleague taunted her with racial slurs won $15,000 through mediation. When she complained about the racist comments to her supervisor, he began to scrutinize her every move. She wrote a letter to the company president asking for help, and he fired her the next day.¹

Awards of tens of thousands of dollars can be financial and reputational death knells to small organizations. To avoid incurring these costs, we help our clients to develop policies and procedures that respect the human rights of their employees and provide advice when problems arise. If they find themselves responding to a human rights complaint, we assist them to resolve the matter as cost-efficiently as possible, whether or not there is merit to the claim.

How do employers know if discrimination is occurring at work? How can you prevent it?

Employers sometimes differentiate among employees, even unintentionally, based on one of the prohibited grounds (e.g. firefighters must be able run and carry certain equipment and may believe that only men can do the job, so they exclude female applicants).

To decide whether an employer is acting in a discriminatory way, a court or tribunal will ask 3 questions:

• Has the employer adopted a particular standard or practice for a purpose rationally connected to the performance of the job?
• Has the employer adopted the standard in an honest and good faith belief that it is necessary to fulfill the work-related purpose?
• Is the standard reasonably necessary, in that it would be impossible to accommodate an individual employee without imposing undue hardship upon the employer?

The financial and reputational consequences of failing to accommodate an employee can be severe.

The employer has a positive obligation to prevent discrimination by training its management and staff about human rights and ensuring that non-compliant behaviour is rooted out and penalized, as necessary.

In the event that an employee is injured in an accident or suffers from a serious bout of mental health problems, the duty to accommodate requires employers to try to find work within the organization that the employee can do – even if this means modifying the employee’s current job, or putting them in a different role. The employer is not required to retain an employee in a position in which the employee cannot perform the position’s essential functions.  The employer must ask four questions:

• Can the employee perform his or her existing job as it is?
• If the employee cannot, then can they do the job in a modified, or “re-bundled,” form?
• If not, can they do a different job in its existing form?
• If not, can the employee perform a different job in a modified, or “re-bundled,” form?

Sometimes employers decide they can’t accommodate an employee. To avoid potentially harsh human rights penalties, these employers must show that accommodation would cause them “undue hardship.”

Unsurprisingly, employees sometimes contest these decisions. Human rights tribunals have to decide whether or not accommodation would really have led to undue hardship. They consider the following six, non-exhaustive factors to assess undue hardship:

• Financial costs
• Impact on a collective agreement (if in a union)
• Problems of employee morale
• Interchangeability of the work force and facilities
• Size of the employer’s operations
• Safety

Bottom line: the burden on the employer must be substantial before accommodation can be said to cause undue hardship. The employer must show it took every reasonable effort to accommodate the employee.

In Ontario, the Ontario Human Rights Commission has said that only financial costs, outside sources of funding (if available), and health and safety are relevant to the employer’s undue hardship. Employee morale and business inconvenience matter little in the face of discrimination allegations.

If you’re a small organization, you still have to meet the same high threshold to prove undue hardship. But the law does take your small size into account. The Supreme Court of Canada has acknowledged that, “in a large concern, it may be a relatively easy matter to replace one employee with another. In a small operation replacement may place an unreasonable or unacceptable burden on the employer.”²

Smaller organizations, particularly non-profits, may be less likely to have internal options or financial resources for re-designing an employee’s job or providing them with assistive tools to be able to retain them. The key for such organizations is to investigate thoroughly, taking into account all the accommodation options they do have.

Employers do not need to keep an employee in a job where she or he cannot perform the job’s essential function. Also, if you think the financial cost of accommodation will be too high, employers need to prove it with detailed accounting. Impressionistic, general statements are not enough to demonstrate undue hardship.

For further information on how we can help, please contact us.

Filed in: Employment Law, Human Rights