Canadian HR Reporter

CANADIAN HR REPORTER MARCH 2019 INSIGHT 27 Brian Johnston Toughest HR Question Sharone Bar-David Guest Commentary Understanding the importance of intent These days, good intentions are no longer enough to override questionable behaviours For those of you who mean well when you tell certain jokes — or for the leaders who support other leaders or employees whose comments and jokes could cross the line — this commentary is for you. Recently, several people have asked me about the role that in- tent plays vis-a-vis workplace ha- rassment. at is, how important is the intention behind question- able behaviour? Say, for example, you like bring- ing cheerful ethnic jokes to work. You do so to lighten the pres- sure on stressed-out co-workers. Everyone loves and encourages these tales. Well, maybe not everyone. One teammate is upset by the atmo- sphere the jokes create and takes the issue to a manager, or to HR. Now, hop into the manager's or HR professional's shoes for a moment. Here's an employee, the jokester, whose goal is to be helpful, who beams with good intentions. Still, you are acutely aware that comments or jokes based on eth- nicity (or race, gender, age or dis- ability) are prohibited under the laws of the land. Moreover, jokes like this breach the organization's harassment policy. How much weight — if any — should you place on the intent behind the employee's behaviour? Let's take a step back and scan the bigger picture. When managers (or HR professionals or workplace investigators) tend to harassment-related matters, they inevitably work through two stages: 1. Determine if the behaviour ac- tually qualifies as "harassment." 2. Decide on consequences. In stage one, intent plays no role. e focus here is on the ap- propriateness of the behaviour in light of legal standards, orga- nizational values, and corporate policies. It wasn't always like this. In the not-so-distant past, another ele- ment played into the equation. It was common to factor in the behaviour's impact as part of the deliberations on whether the con- duct in question met the bar for "harassment." e logic was this: If no one in the work environment was upset by the behaviour, there was no problem. at's how behaviours that nowadays are a big no-no persisted in workplaces for de- cades — think sexually loaded comments, nudie displays, or decision-making based on age or gender. Even a decade ago, it was com- mon practice for organizations to act on bad behaviour only if there was proven "impact" in the form of a lodged complaint — there was no explicit obligation to do anything without a complaint in hand (except in really blatant instances). Today, organizations expect their leaders to take a proactive approach, acting early on emerg- ing issues, sometimes even cor- recting behaviour in public. Now, back to your role as the imaginary joke-teller: In all likeli- hood, your repeated ethnic-based material will be deemed as "ha- rassment" — most harassment policies explicitly prohibit jokes or comments made on the basis of ethnicity and its likes. If you didn't know your habit was problematic, there still is the assumption you ought to have reasonably known. ankfully for you, it may not be complete doom and gloom. ere's still stage two, where your intent might actually matter. In this stage — when it comes to deciding on consequences — your lack of mal-intent might affect the outcome. For example, you might receive a lighter result such as one-on-one sensitiv- ity training or a frank talking-to rather than, perhaps, a lawyer's "One-more-incident-and-you're- out" letter. Still, your intent is only one piece of the puzzle. It's no longer only about the intention behind the behaviour and the impact it has on those directly affected by it. Today's employers tend to look at a much broader landscape, ex- amining matters such as: • What is the behaviour's impact on the workplace culture and environment? • To what extent does the conduct erode organizational values such as diversity and inclusion? • Does the behaviour pose a risk to the organization's reputation? All this can get quite compli- cated, as most HR professionals already know. But the harsh real- ity is that good intentions are no longer enough to override ques- tionable behaviours. So here's my bottom-line advice: First, stay out of trouble. Be good to yourself (and others) by avoiding anything you think could reasonably be perceived as disre- spectful. You can also help team- mates avoid getting into trouble by becoming a more active, con- structive bystander. Second, provide invaluable support to managers by advising them on ways they might help their people stay out of trouble — being proactive. Don't let them be like the manager in the above case, who could have and should have taken action on the ethnic jokes well before the joke-teller got into trouble. And don't forget to always in- spire them to be great role models and conduct themselves in ways that maintain their own good reputation. Sharone Bar-David is president of Bar-David Consulting, a Toronto- based training and consulting firm specializing in workplace incivility and rehabilitating abrasive leaders. She can be reached at sharone@ sharonebardavid.com. Today, organizations expect leaders to take a proactive approach, by acting early on any emerging issues. Can job applicants be required to be citizens or permanent residents? Job ads expressing preferences carry risk of discrimination for employers Question: Can an employer looking for a long-term employee state in a job ad that priority will be given to candidates who are Canadian and permanent residents? Answer: In Canada, only citizens and permanent residents have the right to work permanently for an employer, whereas individuals on work permits have the right to work for a temporary or defined period of time. While there is nothing prohib- iting employers from specifying in a job ad or application that citi- zens and permanent residents will be prioritized, this could have the appearance of discrimination and give rise to possible human rights complaints. ere have been a few deci- sions dealing with "citizenship" as a protected characteristic under human rights laws in Canada. e Ontario Human Rights Tribunal, in a 2018 decision (Haseeb v. Im- perial Oil Limited), recognized that a "permanency require- ment" — that the candidate be eligible for a permanent work position as a Canadian citizen or permanent resident — was dis- crimination based on the ground of "citizenship." In that case, the applicant was a student at McGill Univer- sity completing his mechanical engineering degree and applied for a position with Imperial Oil. Imperial had a very clear policy requiring graduate engineers to have either permanent residency or citizenship to be eligible for the position. While the applicant intended to apply for a three-year "post-graduate work permit" upon graduation, whereupon he would then apply for permanent residen- cy, he was neither a citizen nor a permanent resident at the time of the application. Nonetheless, the applicant held himself out as having either citi- zenship or permanent residency on applications and throughout the interview process. e applicant was ranked first among his peers and was offered the position. Following gradua- tion, the applicant was approved for the three-year post graduate work permit, but was unable to provide the required proof of citi- zenship or permanent residency to Imperial. The job offer was rescinded. While Ontario and Nunavut are the only provinces and terri- tories that have "citizenship" as a protected characteristic in human rights legislation, other tribunals across the country might find this decision persuasive. Having said that, what would normally appear as an employer's discriminatory action can be justi- fied if the employer can show the actions taken were a "bona fide oc- cupational requirement" (BFOR), and undue hardship would occur if the employer was forced to ac- commodate the employee. In Haseeb, the employer's BFOR was that it was investing extensive time and money in its junior employees, and to see the return on that investment, Im- perial needed the assurance the employee would remain with the company permanently. Further- more, it would cause the employer undue hardship and financial loss to accommodate non-permanent employees. While the 1999 Supreme Court of Canada case British Columbia (Public Service Employee Re- lations Commission) v British Columbia Government Service Employees' Union or Meiorin ar- ticulated a "unified" approach for the BFOR defence to apply to both direct and indirect dis- crimination, it should be noted the Ontario code allows for only limited BFOR defences for direct discrimination. As such, because the policy was actively distinguishing between candidates based on citizenship, this amounted to direct discrimi- nation (as opposed to indirect dis- crimination) and, therefore, the BFOR defence could not be relied on, said the tribunal. So, does that mean employers cannot give preference to citizens and permanent residents? Not exactly — there is a finer balance. While employers must be cogni- zant of human rights issues, there remains the correlative duty to en- sure the Canadian labour market is being supported, and that Cana- dian citizens and permanent resi- dents have access to employment. For employers, the Immigration and Refugee Protection Regula- tions are clear that when approv- ing work permits for applicants coming from outside Canada, the officer must determine if the em- ployment of the foreign national is likely to have a neutral or positive effect on the labour market. In so doing, one factor to con- sider is whether the employer will hire or train Canadian citizens or permanent residents or has made, or has agreed to make, reasonable efforts to do so. Employers need to ensure that, on the one hand, citizens and permanent residents are not be- ing disenfranchised due to foreign workers and, on the other, that non-citizens and non-residents are not being deprived of oppor- tunities on the sole basis of their immigration status. Employers should be cautious with the language used in applica- tions and ads when it comes to cit- izenship requirements. is type of preferential language in terms of citizenship should be avoided. Brian Johnston is a partner at Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com.

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