Chapter 5 ▯ Human Rights Issues
• Modify the rule for those negatively affected unless doing so would create undue
SYSTEMATIC DISCRIMINATION: policies or practices that are neutral on there face
but have discriminatory effects.
TO DEFENT A DISCRIMINATORY RULE:
1. Demonstrate rational connection between the rules purpose and requirements of
2. Demonstrate standard was adopted in good faith that it was necessary
3. Establish that it was reasonably necessary and impossible to accommodate
without undue hardship.
FACTORS TO CONSIDER
1. Did you investigate alternatives that aren’t discriminatory
2. Were there valid reasons why alternatives weren’t used
3. Can the workplace accommodate differences
4. Can objective be met in a less discriminatory manner
5. Does the standard ensure qualifications are met
6. Have other parties tried to assist in accommodation?
THE DUTY TO ACCOMMODATE
a. Respects privacy, comfort
a. Cannot base workplace on “normal” employees and make exceptions
4. Accept the request
5. Obtain expert opinion
6. Ensure alternatives are investigated
7. Keep a record
8. Maintain confidentiality
9. Limit requests
10. Grant accommodation in a timely manner
11. Bear the cost
12. Explain to employee why it would do undue hardship
2. Explain why
3. Answer questions
4. Participate in discussions
6. Meet agreed upon performance 7. Work with employer on an ongoing basis
8. Discuss only with people who need to know
1. Take an active role
2. Share responsibility
3. Respect confidentiality
4. Support accommodation up until undue hardship
WHAT CONSTITUTES UNDUE HARDSHIP?
• Under the code, costs, sources of funding, and healthy and safety are relevant to
• Potential disruption of an agreement
• Morale problems with other employees
• Interchangeability of workforce
• Size of operations
a. Only if it is quantifiable, not speculative.
b. Costs based on whole company, not just one department
c. The fact that further accommodation might be needed in the future cannot
be used as a basis.
2. Health and safety concerns
a. If the risks after all accommodations are stills serious
ACCOMMODATING EMPLOYEES WITH DIABILITES (S.17)
• Perform only essential job duties
• Requiring a level of attendance is discriminatory if it has an effect on the
• Where negotiated term exceed HUMAN RIGHT REQUIREMENTS, those are
• Where they fall under, human rights are used.
• Provide alternative work
• Create physically less demanding tasks
• Create a new job if necessary
• No legal requirement to create a job with NEW tasks that are not being performed
o Is alternative work available?
o Can a new position be created without hardship?
o Does it need training?
o Does it contravene agreement?
o What are the terms?
o What are the past practices?
o How interchangeable are workers? • Where an employee is places in a lower paid position after all other alternatives,
the employee can pay them what everyone else in the job is getting.
• Depends on the nature of the disability and frequency of absences.
• Employee must try to discover the true nature of the medical condition before
deciding someone is not capable.
• Accommodation requires more than just investigating whether they can perform
the existing job.
• BASING RESPONSES ON STEREOTYPES IS DISCRIMINATION & NOT
HOW TO TREAT REQUESTS
1. Determine disability and recovery
2. Evaluate job to determine physical demands and if they can be altered
a. Preserve employees dignity
3. Determine if it would cause undue hardship
4. Monitor regularity
5. Document all parts
EG BE MORAL, DON’T BUILD WHEELCHAIR RAMPS ON TOP OF DUMPS
ACCOMMODATION DRUG AND ALCOHOL
• Employee assistance program
• Does not require employee to take lengthy rehab
• Must be consistent and persistent and show that they did their part
• Require employee to do counseling don’t let them thing it is tolerable
ACOOMMODATING RELIGIOUS BELIEFS
• Dress code, break policies, schedules, religious leave
• If not, prove that it was I M P O S S I B L E
• Accommodation doesn’t need to be ideal, just reasonable.
• Don’t have to PAY for accommodating days off as long as you give other options
to make up the wages (eg extra days)
ACCOMMODATING BREAT FEEDING AND PREGNA