Can My Employer Dismiss Me Due to My Unseen Disability? Employers should investigate further before immediately dismissing employees for violating workplace drug and alcohol policies. An employee’s diagnosis of substance dependence would be considered a disability, which is a protected ground under the Canadian Human Rights Act (CHRA) for federally regulated employers. In a recent arbitral decision, Canadian Pacific Railway v Teamsters Canada Rail Conference, a Canadian Pacific (CP) Locomotive engineer was found drinking whiskey while operating a train, which caused a collision. He was criminally charged by the RCMP and was prohibited from operating a vehicle for 2 years. Shortly after the incident, he was terminated for just cause due to his violation of CP’s Alcohol and Drug Policy. After the employee’s termination, he was diagnosed with a severe alcohol use disorder and post-traumatic stress disorder. He explained that he drank alcohol to cope with his and his wife’s battles with cancer. He expressed remorse and was attending addictions treatment. The arbitrator found that there was prima facie discrimination. In particular, the employee: 1) Possessed a characteristic that was protected by the CHRA (the disability of alcohol addiction); 2) Experienced an adverse impact (his employment was terminated); and 3) Was terminated for reasons related to the disability. CP argued that Paisley did not disclose his addiction until after the investigation. However, the arbitrator concluded there can still be a finding of discrimination in cases when the disability is not disclosed until after an incident. Furthermore, the employer did not dispute the fact that the employee had an alcohol addiction. Under the CHRA, when there is a case of discrimination based on a protected ground, the employer is required to demonstrate that they attempted to accommodate the employee to the point of undue hardship to avoid liability. In this case, the arbitrator found that CP failed to reasonably accommodate the employee. The arbitrator ordered that Paisley be reinstated subject to being physically fit for work and undergoing periodic drug and alcohol testing for 2 years. The arbitrator also required that he abstain from consuming alcohol and drugs for the duration of his employment. CP was required to make reasonable efforts to find a non-safety sensitive position for him until his driving prohibition was lifted. Key Takeaway for Employers Employers should ensure that employees with addictions and other disabilities are accommodated, in particular if workplace misconduct is due to a disability such as addiction. Though at first glance, a just cause dismissal appears warranted – investigating and making reasonable accommodations from the beginning could prevent a potential future human rights complaint. If you would like more information about human rights and employment law, contact Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawSeptember 10, 2019September 30, 2020
Bill C-16: Proud to Extend Protections to Transgender and Other Gender-Diverse Persons June is Pride Month, when we celebrate sexual diversity and gender variance in the context of gains made by the Lesbian Gay Bisexual and Transgender (LGBT) communities. It is thus fitting that the Canadian Senate last week passed Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code to protect gender identity and gender expression. Gender identity is broadly defined as one’s personal experience of their own sex, their internal sense of being male, female, a combination thereof or neither. Gender expression is the public expression of that identity, through markers such as clothing, speech and body language. Now that better acceptance and legal protection has been secured, after years of advocacy, for the LGB communities, issues facing the T(ransgender) community have moved to the fore. Issues of gender identity and expression have recently featured prominently in the news, particularly south of the border with the introduction of “bathroom bills” that restrict use of a washroom to one’s biological sex. These issues have highlighted the discrimination, isolation and violence faced on a daily basis by trans and gender diverse people. To address the vulnerability of the trans/gender diverse community, the Bill amends: sections 2 and 3 of the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination; and subsections 318(4) and 718.2(a)(i) of the Criminal Code to include gender identity and expression in the definition of an identifiably group and to extend the protection of hate propaganda to persons who are distinguished by gender identity and gender expression. Evidence that violence or hate was aimed specifically against transgender or other gender diverse persons on account of that identity or expression will now constitute an aggravating circumstance court can take into account when imposing a sentence for the crime. Bill C-16 began life in 2005 as a Private Members Bill. After languishing for such a long period of time, it was taken up by the current federal Liberal government as part of the government’s legislative agenda to facilitate its passage. Even still, approval by the Senate was not a sure thing in the face of criticism that the amendments infringed on freedom of expression and/or promoted a lifestyle not every Canadian supported. The argument that protecting minority groups infringes on free speech is often used when those rights are new to our social fabric. Once established, we wonder why there was ever an issue. Indeed, the protections afforded by Bill C-16, in the view of this author, serve to promote freedom of (gender and sexual) expression. In moving to better protect gender diversity and expression Canada again proves its global leadership in the promotion of human rights and dignity. It will make celebration of sexuality and diversity this year particularly sweet. Happy Pride! Marc Kemerer practices fertility and reproductive law at Devry Smith Frank LLP By Fauzan SiddiquiBlog, Human Rights LawJune 20, 2017June 22, 2020