Canadian Employment Law Today

the negative treatment or adverse impact. Using Smith as an example, Smith's creed was protected under the code. He was ter- minated at his place of employment (a pro- tected social area) and his observing the Christian Sabbath was a factor in him expe- riencing negative treatment (termination of employment). Once the prima facie case of discrimina- tion is established, the onus to provide a non-discriminatory explanation to justify the conduct then rests with the employer. On this point, the policy also contains certain limitations and defences for employ - ers. A duty to accommodate creed beliefs may be limited where the accommodation will cause undue hardship for an organiza- tion (such as exorbitant costs or health and safety concerns). In the case of Smith, how- ever, no undue hardship to the employer was found. In a province growing in diversity the ex- pectation of true inclusion is no longer the exception. e policy gives employers tools to set up protocols to meet their human rights obligations. It can be used as a "rule book" as it provides many practical scenar - ios to everyday situations that employers face. at said, the policy is an indication of the expanding role human rights law has taken in the litigation of employment dis - putes where discrimination exists. Recent cases like in O.P.T. v. Presteve Foods Ltd., is damning example of an employer's flagrant breach of the code and the size of human rights damages that an employer can face where breaches of the code are particularly egregious. Tips for employers Mandhane, the Human Rights Commis- sioner, had the following tips to give em- ployers that strive to ensure they are in compliance with the new policy and with the code: • Employers should create a culture of hu- man rights in their workplace. Have a con- versation. Have clear codes of conduct and policies around human rights. Be proactive. Don't get into a situation where employees don't feel you're open to speaking about issues they have. Create a welcoming cul - ture. Often that is really important — many complaints can be avoided if employees feel they can come forward. • Employers should understand their obliga - tions under the code. e OHRC has created e-learning materials. Have your managers take part in that training. Deeply understand your obligations under the code. • Address any potential issues proactively. If you hear an employee may be upset, ask him if he needs an accommodation. Create a culture where people don't feel like they have to wait until after they leave employ - ment to raise issues. For more information see: • Global Communications Ltd. V. C.E.P., Local 722-M, 2010 CarswellOnt 8884 (Ont. Arb.). • Smith v. Network Technical Services Inc. 2013 HRTO 1880 (Ont. Human Rights Trib.). • T. (O.P.) v. Presteve Foods Ltd., 2015 Car - swellOnt 12338 (Ont. Human Rights Trib.). Canadian HR Reporter, a Thomson Reuters business 2016 CREDIT: SUZANNE TUCKER/SHUTTERSTOCK February 3, 2016 | Canadian Employment Law Today ABOUT THE AUTHOR SUNIRA CHAUDHRI Sunira Chaudhri is a partner with Levitt and Grosman LLP in Toronto, practising labour and employment law. She can be reached at (416) 597-3373 or schaudhri@levittgrosman.com

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