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UNIFOR Aug21-2466

The definitions below are intended to help in understanding human rights issues, including the duty to accommodate.

Discrimination

Discrimination means unfairly treating people in one group differently than people in another group.

The Canadian Charter of Rights and Freedoms and the federal, provincial, and territorial human rights codes name different kinds of discrimination which are unlawful. They also outline steps to stop discrimination.

Most workers are covered by provincial or territorial human rights codes. Some are covered by the federal code. The human rights code is a part of a union collective agreement. This is so even if the collective agreement doesn’t say this in so many words.

A grievance arbitrator can apply the human rights code in the final and binding settlement of a grievance. If there is a conflict between the code and certain words in a collective agreement, the human rights code must over-ride those words. The collective agreement can provide better than the law, but it cannot provide less.

Most Unifor collective agreements go farther than human rights codes. Many Unifor collective agreements include “no discrimination” clauses, joint unionemployer anti-harassment policies, employment equity programs, same sex spousal benefits, equity coordinators, women’s advocates, employer-paid human rights training for all workers, clearly outlined policies for accommodating workers with disabilities, and fully paid parental leave.

Prohibited grounds

The term “prohibited grounds” refers to a reason for discrimination that is not lawful. The prohibited grounds in the federal human rights code are: race, national or ethnic origin, colour, religion, age, sex, pregnancy and childbirth, marital status, criminal conviction, disability (either physical or mental or as the result of dependence on alcohol or drugs), family status, sexual orientation, gender identity, creed, place of origin.

Other grounds covered by other human rights codes include: nationality, citizenship, ancestry, political beliefs, gender expression, civil status, language, source of income, social origin, social conditions, place of residence.

Harassment

Workplace harassment is not a joke. It is cruel and destructive behaviour against others that can have devastating effects. Harassment disregards a person’s dignity, physical or psychological well-being, and can create unfavourable or unsafe working conditions.

Union stewards and committeepersons have an obligation to fight harassment and show leadership on human rights issues. Harassment poisons our workplaces and divides the workforce. It directly conflicts with equality in the workplace and solidarity in the labour movement.

As a union steward, you need to be able to recognize and deal with workplace harassment fairly and effectively.

Workplace harassment is any unwelcome action (physical or verbal) by any person (including management, customer, client, co-worker) on a single or repeated basis, which humiliates, insults or degrades. Unwelcome or unwanted means any actions which the harasser knows (or ought reasonably to know) are not desired by the victim of the harassment.

Racist, sexist and homophobic “jokes” are common in many workplaces. The telling and retelling of these jokes just reinforces stereotypes that have no real basis whatsoever. Some people say that these jokes or insults are harmless and that “people shouldn’t get so uptight.” But in reality, this kind of talk helps to create an atmosphere of insensitivity, in which the most blatant forms of discrimination and harassment can flourish.

At our founding convention Unifor adopted an internal Workplace Harassment Policy. This anti-harassment language must be included in all collective agreements. The policy covers harassment based on sex, race, age, creed, religion, marital status, sexual orientation, gender expression, gender identity, disability, political affiliation, place of national origin, etc. If one of our members is being ‘harassed’, but they’re not being targeted on any of the above grounds, you can represent them through the harassment policy or the regular grievance procedure.

Unifor offers courses on human rights and training on dealing with workplace harassment. See our website: www.unifor.org/education-en or contact the Education Department at education@unifor.org .

Every steward/committeeperson needs a copy of our Unifor Pocket Guide for Investigating and Resolving Workplace Harassment. To obtain a copy call the Unifor workroom at 1-800-268-5763. Copies are also available on-line at www.unifor.org.

How does the Unifor Anti-Harassment Policy work?

It is the responsibility of management to ensure that the workplace is free of harassment. But just leaving the issue up to management is not good enough. Many of our employers still do not have harassment policies and processes to deal with complaints. If that is the case, we urge all locals to use the following procedure set out in this policy. Further, we strongly recommend that locals negotiate in their collective agreement the Unifor Harassment in the Workplace policy including the joint procedure for investigating and resolving harassment.

The role of local union is crucial in combating harassment. If a worker believes that s/he is being harassed at work and wants help, the incident must be brought to the immediate attention of the unit chairperson and the local union president.

The experience of harassment can be overwhelming for the victim. People often react with shock, humiliation and intense anger.

Because of the sensitive and personal nature of harassment complaints, especially racial and sexual harassment; the victim may prefer initially to seek other assistance. This could be any local union elected person or official, including a workplace women’s advocate, member of the women’s committee, human rights committee and employment equity committee. This person could assist the harassment victim in bringing the incident(s) to the attention of the top local union leadership.

The local union president and the unit chairperson must contact the Unifor national representative, and if necessary, they will meet with a senior employer representative(s) to carry out an investigation. The issue must be handled with confidentiality, and is to be resolved within 10 working days of notifying the unit chairperson and local union president. An extension to the ten day time limit may be granted with written request to the National President’s office.

The national representative must notify the Unifor national human rights department about the complaint and its resolution.

Any resolution of harassment complaint must reflect the serious nature of such acts, and send a clear signal that they will not be tolerated.

All of us, as union members must challenge harassment whenever it occurs. We must ensure that the dignity of our brothers and sisters is not threatened by harassment.

Our goal as a union must be to help create a workplace environment free of harassment. That means not only dealing with complaints when they arise, but also watching for instances of harassment and confronting the source.

Does your agreement include a Joint Anti-Harassment Policy?

Unifor places a high priority on the negotiation of joint anti-harassment policies. This means the antiharassment complaint, investigation, and resolution procedure is spelled out in many of our collective agreements. This represents a commitment by the employer in writing that it will co-operate with the union at all stages to resolve complaints of harassment.

Check your collective agreement. If your collective agreement contains an anti-harassment policy and procedure, it will set out the steps and time frames to follow as well as the persons responsible.

If your collective agreement does not yet include an anti-harassment policy and procedure, follow the steps outlined by the Unifor policy above, using the Investigating and Resolving Workplace Harassment Pocket Guide as your resource.

The right to refuse workplace harassment

As a result of bargaining improvements to the antiharassment procedure, several Unifor collective agreements now recognize, in principle, that in serious cases of harassment on prohibited grounds, or where the safety of the worker is being threatened, it may be necessary for that worker to leave the job.

UNIFOR Aug25-2495

Duty to accommodate

In order to understand accommodation, we need to understand more about what the law says about discrimination.

Direct discrimination

Direct discrimination means discrimination that is clear and explicit in the words of the policy or rule in questions.

Indirect discrimination

In the workplace, indirect discrimination happens when a job standard or requirement does not clearly and explicitly discriminate against a certain group in so many words, but this standard or requirement creates a situation that has the effect of discrimination. That is why indirect discrimination is sometimes called “adverse effect” discrimination.

Example: A job description says that climbing ladders and lifting are required duties. A worker on the job becomes temporarily disabled. He tells his supervisor that climbing and heavy lifting are putting his health and safety at risk.

The supervisor refuses to modify the job. He says, “the job is the same for everyone. We don’t discriminate.” The supervisor tells the worker he can either take sick leave or go on working the job as is.

The worker doesn’t want to take sick leave, which is a pay cut, or go on working without any change in his duties. He won’t put himself in danger and he won’t quit. He files a grievance. The union committee explains to the manager that the supervisor’s rigid refusal to modify his job duties is “adverse effect” discrimination.  The job description is not discriminatory on the surface. It is neutral. However, in these particular circumstances, the job description does cause discrimination. Only the fact that the worker has a temporary disability puts him in a position of having to choose between his job and his health. The manager checks out the human rights code, agrees with the union, and orders the supervisor to modify the worker’s duties so that, until he recovers from his temporary disability, he does packing instead of climbing ladders and lifting.

Unified approach

For many years, the difference between “direct” and “indirect” discrimination was very important in determining how a human rights issue was handled. That was until a ground breaking, precedent setting decision by the Supreme Court of Canada in 1999.

The Supreme Court found that the government of British Columbia discriminated against a woman named Tawney Meiorin when she was fired from her job as a fire fighter because she failed to pass a certain aerobic fitness test. The Supreme Court judges said that the employer had not shown that the particular aerobic fitness test used in this case was reasonably necessary to the safe and efficient performance of her job as a firefighter. The aerobic test she had to pass did not take into account her other strengths which are actually more important to the job as a firefighter.

In the Meiorin decision, the Supreme Court went on to outline what has been called a “unified approach” to ending or reducing discrimination. The new approach is called “unified” because it asks the same questions whether the discrimination is “direct” or “indirect.” The employer must now be pro-active (not re-active) in eliminating or reducing discrimination whatever the cause. Job requirements or standards must be designed

in a way which is inclusive and opens doors to all groups as much as possible.

Example: Let’s say a worker has been doing a job for many years that she doesn’t like. Now she has the seniority to bid on a job that she really likes. However, with age she has also acquired a disability. Because of her disability she would have difficulty doing one part of the job she really wants. So, the employer says she can’t have the job she has been waiting for years to get. The worker believes this is discrimination on the basis of disability and wants to file a grievance.

Under the new unified approach outlined by the Supreme Court of Canada in the Meiorin decision, there are certain steps to follow. The union must make out a “prima facie” case of discrimination. Once there is a “prima facie” case, the “burden of proof” shifts to the employer. The employer must show that the job requirement which is a barrier to a worker with a disability is a “bona fide occupational requirement.” The job requirement must also allow for the “most appropriate accommodation” of differences in workers’ abilities up to the point of “undue hardship.” The employer, the union, and the worker have a “joint responsibility” to find and put into effect the most appropriate accommodation short of undue hardship.

We have just introduced many new terms – “prima facie,” “burden of proof,” “bona fide occupational requirement,” “most appropriate accommodation,” “undue hardship,” and “joint responsibility.” Let’s define these terms.

Prima facie case

The words “prima facie” come from Latin. They mean “at first sight.” A prima facie case is one where the facts are strong enough “at first sight” to show that there is a wrong that calls for a remedy.

In the case of discrimination, a prima facie case answers yes to three questions:

  1. Is there substantially different treatment because of a distinction, preference, exclusion or a failure to take into account an already disadvantaged position?
  2. Is the different treatment based on a prohibited ground (like disability)?
  3. Does the different treatment withhold a benefit or impose a burden?

Example (continued): At first sight, the worker is being denied the benefit of seniority because of a disability which prevents her from doing one aspect of the job she wants. There is a “prima facie” case of discrimination. Most different treatment because of disability will establish a “prima facie” case of discrimination.

Burden of proof

Once the union makes out a “prima facie” case, the “burden of proof” shifts to the employer who must now
produce facts strong enough to contradict or disprove the facts supporting the complaint or grievance.

Example (continued): The employer relies on the argument that the job standard in dispute is a “bona fide occupational requirement” and that there is no “appropriate accommodation” short of “undue hardship.”

With a good understanding of “bona fide occupational requirements” and “most appropriate accommodation” and “undue hardship” and with further investigation of the facts of each individual case, the union can overcome many of the employer’s arguments in these areas.

Bona fide occupational requirement

Job requirements, standards, tests, and policies, including those named in a collective agreement can often have a discriminatory impact. In some cases, discrimination cannot be avoided. In other cases, the discrimination can be avoided or remedied. The first thing to do is to make sure the stated qualifications are real, genuine, and made in good faith. In other words, these standards or requirements have to be “bona fide” (good faith). To have a “bona fide occupational requirement,” an employer must be able to show:

  • the standard was adopted for a purpose rationally connected to the performance of the job,
  • the standard was adopted with an honest good faith belief that it was necessary to fulfill this legitimate work-related purpose
  • the standard is reasonably necessary to accomplish this legitimate work-related purpose and is designed in such a way as it accommodates all workers and potential candidates without creating “undue hardship” (to the business or other workers).

Here are other important questions the Supreme Court of Canada says should be asked when determining if a job standard is reasonably necessary:

  • Has the employer investigated alternatives that do not have a discriminatory effect?
  • If other alternatives were investigated and found to be workable, why are these alternatives not used?
  • Can different standards be used that reflect how individuals and groups are different, instead of one single standard for everyone?
  • Is there a way to do the job that discriminates less and still gets the job done, accomplishing the employer’s legitimate purpose?
  • Can the job be designed so the necessary qualifications are met without placing an undue or unfair burden on the worker?
  • Have the union and the worker concerned actively helped in the search for possible alternatives that would open the door to accommodation?

These questions will clearly help workplace representatives challenge assumptions and barriers which prevent workers with disabilities from continuing to work in a way which respects their dignity. Moreover, none of this would do any harm to genuine job requirements.

The employer has to put its mind to finding the “most appropriate accommodation.”

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Most appropriate accommodation

The duty to accommodate demands the “most appropriate accommodation” short of “undue hardship.”

One human rights commission writes that the “most appropriate accommodation” is the one which:

  • most respects the dignity of the individual
  • meets individual needs
  • best promotes the fullest integration and participation
  • ensures confidentiality.

Unifor’s Health and Safety Department has developed a Return to Work or Modified Work Checklist which stresses certain points. The checklist says the most appropriate accommodation is one which:

  • consults the worker;
  • respects the advice of the medical practitioner;
  • begins at the most appropriate time;
  • defines an individual return to work plan;
  • prevents further injuries and recurrences;
  • helps the worker get better;
  • assists the worker in reintegrating into productive, meaningful work;
  • uses the principles of ergonomic job design (fitting the job to the worker, not the worker to the job);
  • lasts as long as necessary;
  • does not follow an arbitrary mould.

When a worker is ready to return to work after absence due to disability, they have the right to return to the “pre disability” job. Human rights commissions say this is only if they can perform the “essential duties” of the job. The essential duties are the core duties. In many cases, a worker with a disability can perform the core duties of their job with some accommodation.

Our union fights first for the right of the worker to return to the “pre-disability job.” This approach challenges both the union and the employer to work together to make the modifications necessary to eliminate as far as possible the causes of injury or disability in the first place. This approach is also the least disruptive to other workers.

The union should not allow the employer to assume the worker cannot return to the “pre-disability job” without first giving the worker a chance which is fair and objective. If the worker cannot do an essential part of the job without some modification to the job itself, the union should fight for the necessary modification. The union should force the employer to show that the necessary modification cannot be done without “undue hardship.”

Often all it takes to protect the worker’s right to return to their “pre-disability” job is to force the employer to put their mind to the issues. If the union agrees that reduced hours of work are in the best interests of the worker, the union and the employer can accommodate the reduced hours with a letter of understanding. Wage replacement benefits for the time not worked may be paid by workers’ compensation (if the disability is work related) or by the insurance carrier (if the disability is not work related). Most accommodations are really not costly.

Jobs can be modified in many different ways. A few examples include:

  • ergonomic job design;
  • redesigning work stations;
  • purchasing special equipment;
  • job content restructuring;
  • rearranging working hours, shifts, and so on.

The “most appropriate accommodation” must answer the individual needs of the worker. The worker’s own physician must provide the employer and the worker’s representative with a clear description of the worker’s medical restrictions.

Accommodation must include workers with:

  • permanent disabilities;
  • temporary disabilities;
  • disabilities whose causes are work related;
  • disabilities whose causes are not work related.

Accommodation works best when it builds in respect for seniority rights and other essential provisions of the collective agreement. The employer and the union must agree jointly on the most appropriate accommodation.

A Joint Return to Work (Modified Work) Committee is established for this specialized purpose.

Other alternative kinds of accommodation include temporary (most notably pregnancy accommodation) and permanent alternative work. Many questions about alternative work are answered under the next heading which tells us about what “undue hardship” means.

Undue hardship

If there is discrimination, the employer has a duty to make every reasonable effort to make the most appropriate accommodation up to the point of “undue hardship.” Human rights codes define the words “undue hardship” differently. For example, the Ontario human rights code lists three factors which must be taken into account.

They are:

  • cost
  • outside sources of funding
  • health and safety requirements

Cost and outside sources of funding

According to one human rights commission, over two thirds of accommodations of workers with a disability cost under $500 each. Many accommodations cost nothing at all.

Before claiming “undue hardship,” the employer must compare the benefits and savings that result from accommodation to the costs of that accommodation. Furthermore, an employer cannot claim “undue hardship” without first making use of all outside sources of government funding which are available to cover the costs of both the individual worker (training, personal equipment, etc.) and the employer (new equipment, technology, training). If a worker’s disability is from a work related injury, the worker’s compensation board will often pay certain costs.

Health and safety

If a health and safety requirement is a barrier to accommodating a worker, the employer has to weigh the benefit that comes from ending discrimination against the health and safety risk that remains after accommodation. To keep a health and safety requirement that prevents accommodation, the risk to health and safety must be serious, probable and significant.

To be considered “bona fide,” a health and safety requirement must be reasonably necessary to the safe performance of the job. It cannot be adopted to create a barrier to equality.

Alternative work

If the things that need to be done to accommodate a worker within their “pre-disability” job would create “undue hardship” in terms of cost and health and safety, the employer, the union, and the worker must consider alternative work which is suitable and appropriate. Alternative work may be temporary or permanent.

In an arbitration decision called “Mount Sinai Hospital v. ONA” in 1996, the arbitrator, Richard Brown, said the duty to accommodate covers not only the duties and requirements of current jobs but also the duties and requirements of “a bundle of existing tasks within the ability of a worker with a disability.” The employer has to use a three step test:

  1. Can the worker perform his or her existing job?
  2. If the worker cannot do their existing job, can the worker do his or her job in a modified form or with the tasks of different jobs “rebundled”?
  3. If the worker cannot do their job in a modified or rebundled form, can they do another job in its existing or modified or rebundled form?

The size of the workplace, the number of jobs, and the kind of work involved will determine whether it is possible to “rebundle” tasks. For example, it would create “undue hardship” for other workers if a rebundled job would give all the light work to one worker and all the heavy work to all the others. However, the larger the workplace, the greater the number of jobs, and the greater the different kinds of tasks, the greater the chances of “rebundling” tasks without creating undue hardship for anyone.

By way of example, at CP Rail, the union negotiated collective agreement language which sets out the following steps in accommodating workers with disabilities:

First, the employee’s present position will be considered for modification.

Second, positions within the employee’s classification shall be considered.

Third, positions within the bargaining unit shall be considered.

Fourth, positions outside the bargaining unit shall be considered.

Any alteration of seniority shall be considered as a final resort only after all other avenues have been duly considered by both parties. In situations involving layoff and recall from lay-off, the provisions of Rule “x” (the lay-off and recall provision of this collective agreement) will have priority over any other special arrangements that have been established to accommodate disabled employees.

Seniority

Seniority is the corner stone of a collective agreement.

Seniority rights in the collective agreement protect the worker from all kinds of unfair, arbitrary and discriminatory treatment. The aims and objectives of human rights codes and collective agreement seniority provisions go hand in hand. They both serve to protect equality, fairness, and prevent discrimination.

The duty to accommodate a worker with a disability can conflict with certain collective agreement provisions based on seniority, but often this duty provides the only effective defence of the seniority rights of a worker with many years of service.

Unifor will never set aside seniority in the order of lay-off and recall. A worker has the right to equal treatment regardless of disability but should not have the right to better treatment because of disability.

After taking all factors into account, the union sometimes considers negotiating a letter of understanding to assign a worker with a disability to a vacant position without the necessity of a job posting. That happens only when this form of accommodation is suitable to the worker and causes the least interference with the seniority rights of other workers.

The “Innocent Absenteeism” rule

For many years, arbitrators accepted the so-called right of an employer to terminate or discharge a worker for “innocent absenteeism” regardless of long years of service and seniority. Innocent absenteeism is absence for medical reasons where there is little or no likelihood of the worker being able to do work the employer considers “essential” or “productive.” In a 1996 decision on a grievance made by CAW Local 2301 at Alcan Smelters in Kitimat, BC, the arbitrator Allan Hope wrote that the duty to accommodate now tells the employer to show that they have taken every reasonable measure they can, short of undue hardship, to accommodate a worker with a disability before using “innocent absenteeism” as a reason for discharge.

Joint responsibility

The union also has a duty to accommodate. Workers have a right to union representation when meeting with the employer concerning modified work or return to work (Commercial Bakeries Corp. vs. Retail Wholesale Canada/CAW Local 462, 20003 CANLII 52702).

This means the union has to be an active player, investigate, and forcefully argue for alternatives where appropriate. We should challenge job descriptions which contain requirements that are not really needed and that only create a barrier to equality in general and workers with disabilities in particular. We should challenge employers to prove to us there is no alternative short of “undue hardship” when they use this argument.

If the only appropriate accommodation available to a worker conflicts with provisions in the collective agreement, the union must still put its mind to the issues. We can oppose accommodation on the grounds of conflict with the collective agreement, but we must also show a convincing case that there is undue hardship to other workers.

If the employer resists appropriate accommodation, the union has to make a serious and substantial effort to overcome that resistance. This can be done through a grievance or through collective bargaining or both.

Example: When the supervisor said that modifying the job of a worker with a disability would cause hostility from other workers, the union strongly recommended, as part of the total solution, that the employer give a one day paid human rights and anti-harassment training program to everyone, supervisors and workers both. This way, everyone would know that it is everyone’s right to work in a harassment free environment and to get accommodation when necessary. The employer agreed. Human rights training for all new workers and supervisors also became part of the collective agreement.

It is very important that workplace representatives keep good records of all steps that the union takes to accommodate in cases of discrimination. Despite the fact that the burden of proof shifts to the employer when we make out a “prima facie” case of discrimination, we always investigate our case as though the burden of proof is on the union, not the employer.

The worker also has responsibilities. The worker must:

  • co-operate with the union in its efforts to find accommodation
  • advise the employer of their disability
  • make their needs known, preferably in writing
  • answer questions about the restrictions and limitations based on medical information from health care professionals when appropriate but not including diagnosis
  • participate in discussions about possible accommodations
  • co-operate with experts as required
  • meet agreed upon job standards after accommodation is provided

The employer must:

  • co-operate with the union in its efforts to find accommodation
  • accept the worker’s request for accommodation in good faith
  • get expert advice where needed
  • investigate all possible solutions
  • keep a record of all actions taken
  • respect confidentiality
  • pay the cost of any medical documentation needed, doctor’s notes, letters setting out accommodation needs
  • find and put into effect the most appropriate accommodation in a timely manner up to the point of undue hardship
  • not force the worker to go to the employer’s doctor but if there is a dispute over medical evidence, the worker and the employer may agree on the worker seeing another doctor agreeable to both the worker and the employer (often called an Independent Medical Examiner)

When job rights are at stake, as in the case of a termination or a lay-off out of order of seniority due to disability, the union must file a grievance.

When job rights are at stake, do not rely only on a claim within the worker’s compensation system.

If the employer refuses accommodation, the union must file a grievance under the collective agreement without delay. Even if the collective agreement makes no mention of the duty to accommodate, the union must still file a grievance. The human rights code is considered to be a part of the collective agreement. An arbitrator can apply the human rights code to the grievance facts and enforce the provisions of the human rights code as part of the collective agreement.

Pay particular attention to the time limits in the grievance procedure. The grievance must demand full redress and say that the duty to accommodate must be met as provided for by the human rights code and the collective agreement.

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