Canadian Employment Law Today

December 5, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2018 2 | December 5, 2018 Answer: In order to appreciate the em- ployer's obligations in this context, it is necessary to understand the distinction between sex, gender identity and gender expression. A person's sex refers to the physical characteristics associated with being male or female. A person's gender identity is a person's sense of themselves and may either be diff erent or the same as the sex that they were assigned at birth. Gender expression is how a person pres- ents their gender. How a person presents their gender may not necessarily refl ect their gender identity. In the past several years, provinces across Canada have amended their hu- man rights legislation to include gender identity and/or expression as prohibited grounds of discrimination. In western Canada, Manitoba amended its human rights legislation to include gender iden- tity as a protected characteristic in 2012. Saskatchewan amended its legislation in 2014, expressly including gender iden- tity as a protected characteristic. Alberta amended its human rights legislation in 2015 to include gender identity and ex- pression as prohibited grounds of dis- crimination. British Columbia followed suit in July of 2016, including gender iden- tity and gender expression as protected characteristics under its code. However, for those provinces whose human rights legislation does not specifi cally include Answer: Human rights legislation throughout Canada protects all employ- ees from discrimination in employment on protected grounds such as race, sex, sexual orientation and disability. is protection is there regardless of whether the employer is a contractor company who sends its workers to various work- sites. is is because the duty to accom- modate extends to the terms and condi- tions of employment, not limited to the immediate premises of the employer. An employee who experiences adverse treat- ment because of, for example, disability will be entitled to reasonable accommo- dation on the part of the employer up to the point of undue hardship. us, as- suming the employer is aware of an em- ployee's need for accommodation, the employer cannot divorce itself from the accommodation process. However, this is not to say that the em- ployer is the only party who is prohib- ited from discriminating against the em- ployee in this setting. In some instances, a third party or collateral person can be a perpetrator of workplace discrimina- tion even if they are not even a party to the employment relationship. Whether or not the host company in the present scenario is subject to the discrimination provisions under human rights legisla- tion will depend on the language of the applicable statute. For example, in Alber- ta, only employers are expressly prohibit- ed from discriminating in employment in that province's human rights legislation. Saskatchewan prohibits discrimination by both employees and employers. Brit- ish Columbia legislation prohibits a "per- son" from discriminating against another individual "regarding employment." It is important to bear in mind that hu- man rights legislation is always interpret- ed broadly and liberally. us, even in Alberta this broad interpretation has re- sulted in protection from discrimination in employment extending to situations outside of the conventional employment relationship. Independent contractors, subcontractors, volunteers and taxi driv- ers have been found to be protected by human rights legislation with respect to employment. Recently, the Supreme Court of Canada in British Columbia Human Rights Tribunal v. Schrenk, con- sidered whether the B.C. legislation pro- tected an engineer with a consulting fi rm from discrimination by a construction contractor and its employee engaged on the same project. e complainant in Schrenk supervised a number of workers who worked for the construction contractor on the job site. A foreman for the construction contrac- tor made frequent derogatory remarks to the complainant regarding his sexual ori- entation, place of birth and religion. e complainant raised the foreman's con- duct with his employer, which wisely took steps to address the discrimination and it was agreed that the off ending worker be removed from the worksite. Nonetheless, the worker persisted in his misconduct. e complainant eventually brought a human rights complaint against the con- struction contractor, the foreman, and the municipality who engaged the com- plainant's engineering fi rm on the proj- ect. e respondents objected, claiming that the human rights legislation did not apply to them since they were not the complainant's employer. e Supreme Court of Canada disagreed. According to the Supreme Court, the B.C. legislation prohibits discrimina- tion that has a "suffi cient nexus" to the employment relationship. A suffi cient nexus to the employment relationship may exist where: 1) the perpetrator was integral to the complainant's workplace; 2) the conduct occurred in the complain- ant's workplace; and 3) the complainant's work performance or work environment was negatively aff ected. In the present scenario, both the host company and the employer likely have considerable infl uence over the employ- ee's work environment. Depending on the situation, the host company may be the only party who can eff ectively amelio- rate the employee's working conditions by carrying out the actual workplace ac- commodation. e decision in Schrenk recognizes that there are circumstances where there is only so much that an em- ployer can do to address discrimination in the work environment. However, this does not mean that an employer is re- lieved of its duties under human rights legislation. Like the complainant's em- ployer in Schrenk, the contractor em- ployer in the present scenario should do what it can to promote a discrimination- free work environment for its employee. For more information see: • British Columbia Human Rights Tri- bunal v. Schrenk, 2017 CarswellBC 3506 (S.C.C.). Employee in gender transition Question: If an employee declares themselves transitioning their gender but still appears as their original gender, at what point is the employer legally required to allow the employee to use facilities such as washrooms or locker rooms for their new gender? with Leah Schatz Ask an Expert MLT AIKINS LLP, SASKATOON Accommodation and discrimination for contract employees Question: If a contractor's employee working in another company's workplace requires accommodation specific to the workplace, does the contractor employer have to be involved in the accommodation process? FLEXIBILITY on page 9»

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