Canadian HR Reporter

CANADIAN HR REPORTER December 11, 2017 INSIGHT 19 Tim Mitchell TOUgHeST HR QUeSTiON Dress for distress: The challenge of clothing-related legislation in 2017 The notion that governments or employers could reduce the level of accommodation to some level below undue hardship is a radical change is has been a busy year for legislators to venture into the murky realm of legislat- ing what is and what is not appropriate wear. At the beginning of the year, peti- tions were submitted to Parliament in the United Kingdom to outlaw organizations requiring women to wear heeled shoes. e petition was quickly rejected. en British Columbia banned requirements that force women to wear high-heeled shoes at work. Ontario's Liberal Party has also put forward its own anti-heels bill. However, recognizing that em- ployees already have the right to refuse unsafe work, and female employees already are not allowed to be treated diff erently than their male counterparts, many suggest these bills provide no additional protection to workers than the laws already in place. So, why did these unnecessary bills get put forward? Z ealous lawmakers have rushed to categorize high-heeled shoes as sexist and oppressive. Recognizing that only women wear these shoes and they are relatively uncomfortable, this was an easy categorization. e chal- lenge is that it is not the govern- ment's job to legislate what people choose to wear. e government's role is only to make sure people are not injured as a result of what they wear. In October, after roughly 10 years of discussion and debate, the Quebec government has enacted another form of clothing legisla- tion, Bill 62. is makes it law that in order to receive any gov- ernment services in Quebec, the recipient of those services must make her face visible. e inten- tion of the law is to require per- sons who wear a burka or niqab — veils worn as part of a woman's commitment to their faith — to remove the veil as a condition of receiving government services. Following the enactment into law, the government clarifi ed the application of this law to require a person's removal of a burka or niqab to: • take public transit • attend public school, college or university • receive medical services • receive any other public services. It is not surprising that many have criticized the bill for failing to accommodate the religious freedom of those choosing to wear a burka or niqab. Some have suggested this marginalizes the al- ready marginalized, and this will be taken to the Supreme Court of Canada as a contravention of the Charter of Human Rights and Freedoms. e purpose of the charter is to ensure all Canadians are treated equally. Human rights legisla- tion in place federally, and in each province and territory, has been enacted to provide protection to members of our society at greatest risk for being marginalized. Spe- cifi cally, and in addition to a num- ber of other protected groups, human rights legislation makes it illegal to discriminate against per- sons based on gender or religion. As a result, employers work diligently to guard against direct or systemic discrimination. Em- ployers are required by law to ac- commodate employees up to the point of undue hardship. Has the Quebec government just changed the definition of undue hardship? If yes, does the enactment of Bill 62 create a prec- edent for how other provinces or employers support or reject reli- gious accommodation? Let's con- sider each of these in turn. Until now, the defi nition of un- due hardship has been the point where an employer would experi- ence a material fi nancial or busi- ness hardship in accommodating an employee's request for accom- modation. While there is no pre- scribed amount that is to be con- sidered material, one might safely assume a fi nancial impact of more than $10,000 might be considered material to an organization, but that would depend on its size and fi nancial strength. The premise, however, is an employer has a duty to try to ac- commodate an individual up to a point where the employer would be harmed by this accommoda- tion. e amount is not critical. What is critical is the philoso- phy that the employer will work to accommodate the individual. Bill 62, instead, shifts the burden of accommodation to the em- ployee. In essence, Bill 62 sug- gests the government — and by extension employers — are able to set the limit of accommoda- tion to something other than un- due hardship. e notion that governments or employers could reduce the level of accommodation to some level below undue hardship is a radical departure away from re- ligious accommodation being a government or employer's duty. It shifts religious accommodation to being merely an option, with the degree of accommodation set for the convenience of the govern- ment or employer. With such a radical shift away from a duty to accommodate, one might be concerned this could set a precedent for other provinces — or by extension employers — to reshape the way we inter- pret workplace accommodation. While this is possible, it is prob- ably more likely that, like we saw with the U.K. high-heels petition, Canadian politicians will eventu- ally experience a sober second thought and decide politicians have no place in the closets of Canadians. Canada's current health and safety and human rights legisla- tion already protects workers against the oppression of dress- shoe dress codes. Human rights legislation that requires a duty to accommodate up to undue hard- ship maintains a focus on creat- ing inclusive workplaces refl ective of Canadian values. So, it is most likely politicians will walk away from focusing on what Canadians wear, and instead focus on how Canadians are treated. Angus Duff is an assistant professor at the School of Business and Econom- ics at ompson Rivers University in Kamloops, B.C. He can be reached at aduff @tru.ca. is has been a busy year for legislators to venture into the murky realm of legislat- ing what is and what is not appropriate wear. At the beginning of the year, peti- tions were submitted to Parliament in the United Kingdom to outlaw organizations requiring women to wear heeled shoes. Angus Duff GUeST COMMeNTaRY Offensive material on social media feeds How far does an employer's reach extend when it comes to disciplinary action? Question: If an employee posts off ensive ma- terial on her own social media feeds that aff ects her interaction with others in the workplace, can the employer order the employee to stop such behaviour or face disciplinary action? Answer: Many of the same prin- ciples that apply to cases where an employee is off ensive at work are applied to cases where an em- ployee is off ensive online. Social media feeds are not pro- tected by privacy legislation, so online posts that aff ect the em- ployer or its employees are fair game for discipline. e level of appropriate disci- pline will depend on the facts of each case, including the post itself, the extent to which it is related to the workplace, and any relevant company policies. at being said, courts and tri- bunals have shown a general in- terest in upholding an employer's right to discipline for an employ- ee's misuse of social media. e following three cases are illustrative of this trend: •Perez-Moreno v. Kulcyzcki: On- line posts that constitute harass- ing and bullying behaviour may be grounds for termination. In one case, an employee made Facebook comments and sent messages to co-workers calling her manager a "dirty Mexican." In ruling that the comments constituted harassment, the tri- bunal noted that Ontario's hu- man rights legislation applied to workplace-related postings on the internet. •Chatham-Kent (Municipal- ity) v. CAW-Canada, Local 127: Online posts that undermine an employer's reputation may also be grounds for dismissal. A union employee's termination was upheld for blogging about her employer and criticizing the conditions in the retirement home where she worked. is be- haviour was held to be insolent, disrespectful and insubordinate. •"Toronto fi refi ghters lose jobs over sexist tweets," CBC News, Sept. 16, 2013: Online posts that are just plain off ensive may be grounds for discipline. Employ- ers should be wary of these types of posts, as they often result in media scrutiny. For example, one Ontario fi refi ghter's sexist tweet went viral and resulted in negative attention towards the Toronto Professional Fire Fight- ers' Association. e employee was suspended. e law's interest in curbing online abuse may even go so far as imposing a duty on employers to adequately protect employees from off ensive online posts. In Toronto Transit Commission and A.T.U., Local 113 (Use of So- cial Media), Re, TTC employees were subject to numerous hateful tweets online via an employer-run Twitter account. e employer was found liable for failing to im- mediately delete the tweets and block their authors. e best way to mitigate the risks associated with employee online posts is to draft proper so- cial media policies. ese policies should: •defi ne social media •state that the employer monitors social media •establish what constitutes appro- priate and inappropriate usage •develop and implement report- ing procedures for inappropriate use of social media •develop and implement proce- dures for dealing with incidents and complaints •set out the consequences of inap- propriate use of social media. For more information, see: •Perez-Moreno v. Kulcyzcki, 2013 HRTO 1074 (Ont. Human Rights Trib.). •Chatham-Kent (Municipality) v. CAW-Canada, Local 127, 2007 CarswellOnt 5078 (Ont. Arb.). •Toronto Transit Commission and A.T.U., Local 113 (Use of Social Media), Re, 2016 CarswellOnt 10550 (Ont. Arb.). Tim Mitchell practises management- side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrosefulbright.com. Has Quebec just changed the defi nition of undue hardship? If yes, does Bill 162 create a precedent for how employers deal with religious accommodation? Policies should state the employer monitors social media usage.

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