Canadian Employment Law Today

6 | October 11, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends 2002 to 2004, after which she was assigned to the Communication A section in Victoria. At one point, Stanger was married to one of her co-workers but separated from him in 2003 and divorced him in 2004. Shortly thereafter, she began a romantic relationship with her shift superintendent. ey soon be- gan living together and married in 2008. Employee wanted to pursue management opportunities In January 2008, Stanger applied for a lead- ership development program offered by Canada Post the following month to recruit and assess employees for promotion to su- pervisory positions. e program was usu- ally run once or twice a year in the Pacific re- gion, according to staffing needs. Stanger's manager declined to approve Stanger's ap- plication with the comment: "Jessica would potentially be a good candidate if her per- sonal situation was different or if she were to work in another facility. Her husband is shift #3 (Stanger's shift) operations super- intendent and there is a high likelihood of conflict of interest." e manager met with Stanger and ex- plained that the only supervisor position available in Victoria — or on Vancouver Island — was one that would put her in a direct conflict of interest situation with her husband. e manager said there were po- sitions available in Vancouver, but reported that Stanger said no. Stanger testified that she was willing to relocate at the time. Stanger submitted her application to the HR officer in Vancouver, who recommended it be approved and, if Stanger was successful, she could be put on a waiting list for a po- sition that wouldn't report to her husband. e acting director of human performance management agreed, so Stanger's manager reversed her decision and approved the ap- plication. However, by this time it was March and the program had already run, so Stanger was placed on a waiting list. A short time later, Canada Post decided to contract with an external company to run the process for supervisor recruitment. It cancelled its own program and Stanger's ap- plication was never considered. Stanger filed a complaint claiming dis- crimination based on family status as a result of Canada Post's failure to accept her into the leadership development program. She also claimed discrimination based on her dis- ability because of multiple incidents where co-workers complained about her inability to do certain tasks on the duty rotation, lead- ing to supervisors re-assigning and remov- ing her from certain duties. e tribunal noted that the Canadian Human Rights Act (CHRA) doesn't de- fine "marital status." However, it found that past jurisprudence supported the concept that "marital status discrimination can be a relative construct, in the sense that an indi- vidual's marital status can be determined by looking at his or her current conjugal living situation and relationship with one's part- ner." As a result, someone can be discrimi- nated against if she experiences adverse treatment based on a conjugal relationship outside of marriage and CHRA protection doesn't apply only to a "legally solemnized marriage," said the tribunal. erefore, Stanger's relationship status granted her en- titlement to protection from discrimination well before her 2008 marriage. Conflict of interest concerns taken too far e tribunal found that Stanger was pre- vented from enrolling in the leadership de- velopment program — and therefore access to a significant employment opportunity — because of her relationship with the shift superintendent. ough Canada Post didn't want her in the position that would report to her husband, the corporation eventually acknowledged that she could take enter the program with the expectation she could apply for another managerial position if one became available. However, because Stanger's application was unnecessarily de- layed, she missed her chance at participat- ing. She was "differentiated adversely based on her marital status," which had an adverse impact on her, the tribunal said. e tribunal also found that Canada Post didn't demonstrate a bona fide occupational requirement as to why Stanger couldn't have been accommodated by having her applica- tion for the leadership development pro- gram approved and managing the conflict of interest if it came up. In addition, the tribu- nal pointed out that Stanger participating in the program would not have caused a con- flict of interest, only her taking the manage- rial position available at the time would have. e tribunal noted that Stanger's manager incorrectly assumed that declining Stanger's application was the proper way to imple- ment Canada Post's conflict-of-interest policy and the corporation tried to remedy the error, but by then it was too late and the effect of the decision — to deny Stanger par- ticipation in the program starting in Febru- ary — couldn't be reversed. e tribunal found that the decisions to remove Stanger from certain duties were not made because of her disability or co- workers complaining about her PPD status, but instead for staffing or health and safety reasons. Such reasons were not adverse dif- ferential treatment, said the tribunal. e tribunal also found that Canada Post tried to investigate Stanger's harassment complaints, but she refused to co-operate, as she insisted the corporation make a writ- ten request for her to submit a written com- plaint. ough Canada Post outlined the in- formation it needed, Stanger didn't respond. In addition, Canada Post trained its em- ployees in human rights awareness, had a code of conduct, a no harassment policy, and a human rights and workplace conflict program for employees. Given these factors and Canada Post's attempt to investigate Stanger's harassment complaint, there was no evidence Stanger's workplace was poi- soned or unsafe, said the tribunal. e tribunal determined that Stanger was discriminated against based on her marital status when her leadership program appli- cation was initially denied, but not from the occasional re-assignments. As Stanger had not yet made submissions of her claimed fi- nancial losses, damages were to be decided at a later date. For more information see: •Jessica Stanger v. Canada Post Corporation, 2017 CarswellNat 2512 (Can. Human Rights Trib.). Delay in approval was adverse treatment « from CONCERNS on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as dress codes and accommodation, managing diverse workplaces, and marijuana in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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