Canadian Employment Law Today

with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY 2 | January 4, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Levels of work stress Question: Should an employee who has a poor reaction to normal work stressors be treated differently than one who suffers from severe stress from an extreme incident in terms of mental health accommodation? Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Is causing offence discrimination? Question: Does discrimination include someone taking offence at something in the workplace based on a protected human rights ground such as religion or sex? Does it matter if there was no intention to offend? Answer: e primary focus of human rights legislation across Canada is to address the notion of distinctions that impose diff er- ential burdens, obligations or disadvan- tages upon a person because of an actual or presumed membership in a group (Stacey Ball, Canadian Employment Law). An em- ployee who takes off ence at something in the workplace (for instance, a comment by another co-worker or some other negative occurrence), without anything more, likely does not constitute prima facie discrimina- tion. Rather, discrimination exists where an employer adopts a practice or rule that, on its face, discriminates on a protected ground, or when an employer's seemingly neutral rules, standards or requirements have a discriminatory impact on people based on a protected ground under human rights legislation. All employees should be judged on their individual attributes, skills and capabilities rather than on stereotypes, prejudice or assumptions. Where an employer makes decisions regarding an employee based on preconceptions relating to a protected ground under human rights legislation, re- gardless of whether there is an intention to do so, such behaviour may constitute prima facie discrimination. Further, discrimina- tion is defi ned by reference to the eff ect on the complainant, rather than the motive or intent of the respondent. As such, the lack of an intention to off end is not a suffi cient justifi cation. Where an employee is taking off ence to a derogatory comment made in the workplace, such comment may constitute harassment, which would be contrary to human rights legislation if it is based on a protected ground. A fi nding of discrimina- tion or harassment is based on objective standards and factors, rather than a com- plainant's subjective perceptions alone. at said, employers must strive to create a workplace that is inclusive and respectful, and hold all employees to high standards of conduct. Where an employer tolerates or condones behaviour in the workplace to which certain employees may reasonably take off ence based on a protected ground, such behaviour can show that discrimina- tion has been a factor in the way someone is treated. Further, in such a workplace, em- ployees may become more inclined to con- strue or perceive any negative occurrence or dissatisfaction through the lens of a pro- tected characteristic, which may result in human rights exposure that is diffi cult for the employer to defend. In sum, it is important for employers to hold employees to high standards of inclu- sion and sensitivity through eff ective written policies and codes of conduct that address harassment and respect in the workplace, which set out clear standards for employ- ees to abide by, as well as any investigative and disciplinary procedures. e employer's position on discrimination and harassment should be clearly communicated, posted on bulletin boards and provided to all man- agers, supervisors and employees. To have such policies in place can help prevent ha- Answer: Regardless of whether an employee has a poor reaction to normal work stress- ors or severe stress from an extreme inci- dent, the employer's accommodation duties would depend on whether the employee's issues or diffi culties would be captured by a protected ground under the applicable hu- man rights legislation — in this case, either mental disability or physical disability. Human rights legislation across Canada protects both mental disability and physi- cal disability. For instance, the Alberta Human Rights Act (AHRA) provides that employers must not discriminate against employees for (among other things) race, age, mental disability and physical disabil- ity, and that such characteristics should be accommodated by the employer to the point of undue hardship, unless there is a bona fi de occupational requirement. Men- tal disability includes any mental disorder, development disorder or learning disorder, regardless of the cause or duration. ere are cases that have found that work-related stress and anxiety can amount to a mental or physical disability mandating accommodation. For instance, in Cooper v. 133668899 Ltd., an employee suff ered from work-related stress as the general manager of a hotel. Her physi- cian wrote a note recommending that she take sick leave "for reason of mental illness (stress)." When the employee spoke to her employer on the phone, the parties began a heated argument, which culminated in the complainant's dismissal. e Alberta Human Rights Tribunal considered and accepted that the complainant's stress was a mental disability within the meaning of the AHRA. In so fi nding, the tribunal con- sidered that the physician's medical note explicitly identifi ed the employee's stress as a mental illness. An employer who suspects that its em- ployee suff ers from a mental disability is precluded by human rights legislation from discriminating on the basis of that disability, and is under a positive obliga- tion to accommodate the employee to the point of undue hardship. is obligation exists whether an employee has a poor reaction to normal work stressors, or suf- fers from severe stress from an extreme incident. e duty to accommodate re- quires an individualized assessment of the circumstances, needs and capabili- ties of the particular employee and an individualized response based on those circumstances. is encompasses a duty to seek out information. For instance, in Dupuis c. Canada (Procureur général), the Federal Court found that if a man- ager can detect a change in an employee's behaviour that could be attributable to a mental disorder, it is her responsibility to determine whether accommodation is necessary. Further, it is plausible to con- sider that erratic requests by an employ- ee and personal confl icts can conceal a mental disorder. Accommodation would be particularly urgent if the employee appears to be fatigued, on the verge of a burnout, or acting irrationally. Each case is unique and deserves to be assessed in- dividually. For more information see: • Cooper v. 133668899 Ltd., 2015 Carswel- lAlta 2625 (Alta. Human Rights Trib.). • Dupuis c. Canada (Procureur général), 2010 CarswellNat 2243 (F.C.). CAUSING OFFENCE on page 6 »

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