Can attending a white supremacist rally be grounds for dismissal?

| September 11th, 2017 | No Comments »

After several attendees of last month’s white nationalist rally in Charlottesville, Va., were outed on social media and then quickly fired, Canadian employers are asking, “Can attending a white supremacist rally be grounds for dismissal?”

The answer is yes – but with several caveats.

 Freedom of speech does not translate to freedom from workplace consequences. Canadians are given the right to express their personal views, political preferences or ideologies, whether privately or in public. Although their opinions and behaviour may be perfectly legal, that does not render them immune from workplace discipline or dismissal.

Outside of unionized employees, an employer is well within its legal rights to discharge employees for virtually any reason, or for absolutely no reason at all, as long as a proper severance payment is provided. This is the beauty of Canadian dismissal law; paying severance makes just about any dismissal decision justified.

Technically, there is no difference between firing an employee because he or she identifies with white supremacists and firing that same employee because of restructuring. Neither employee has any right to challenge the basis for termination. And if a severance package is provided, there also should be no difference in the amount required.

The more interesting question is whether firing an employee for attending a rally can be seen as a form of misconduct such that there is just cause for dismissal without any severance at all. This is where dismissal law gets tricky. Termination for any form of misconduct without pay is usually difficult for employers to justify as they first have to prove that the punishment fits the alleged crime. But if the correct conditions are met, it can and should be done.

If an employee is publicly outed on social media for his or her participation at a white supremacist rally, it could be cause for dismissal.

Employers have a legitimate interest in protecting their brand and reputation, especially online. As the mob mentality of social media is now more powerful than ever before, an employee publicly shamed online, even for privately held beliefs, can be indirectly causing damage to an employer’s reputation and putting that employer’s decisions in the spotlight. In the United States, several employers faced extreme backlash when their employees were outed for attending a rally. An employer who does not take action in these circumstances could face far more negative publicity than an employer that takes quick steps to distance itself from that employee.

A more likely case for dismissal without severance is where there is some form of link between an employee’s behaviour and the workplace. Distributing hate propaganda to colleagues, posting flyers or pictures in the workplace or encouraging co-workers to agree with certain ideological beliefs, is a more-clear-cut case to deny severance.

Human-rights legislation across the country states that employers have a legal duty to provide workplaces free from harassment and discrimination, which extends to ensuring the actions of their employees do not create or even potentially create a poisoned workplace. While holding certain views or expressing them privately is not illegal, bringing them into the workplace for others to see and hear is a form of indirect discrimination that could lead to a successful human-rights complaint against both the offending employee and his or her employer.

If other employees refuse to work with an individual who is identified as supremacist, even if on his or her personal time, it could also lead to a court upholding a dismissal without severance. In a recent case, an employee was terminated for misconduct after he was charged for possession of child pornography. In upholding the dismissal, the court found that the charges themselves were so detrimental to the workplace and employee morale that the employer had no other option but to immediately fire him.

What conclusions can we draw?

Employees are clearly allowed to hold personal opinions and views, even racist ones, without fear that their thoughts or prejudices will follow them back to their desk. This by itself it not grounds to dismiss for cause, nor could it ever be. But once these views cause harm or potentially cause harm to an employer’s business interests, no employee should expect that any workplace law would protect them.

Author: Daniel Lublin

Publication: The Globe and Mail

Important Information for Conducting Criminal Background Checks for Condition of an Employment Offer

| June 7th, 2017 | No Comments »

Employers must treat criminal record checks similarly to other protected grounds of discrimination such as race, religion and so forth. A criminal conviction for which a person has been pardoned is a protected ground of discrimination under human rights law.  Any workplace policies that inadvertently have an adverse affect upon individuals with pardoned convictions must be dealt with accordingly.

Hiring Process

An employer concerned about employing an individual with a past criminal record may request a perspective employee to undergo a criminal background check. However, this should be done with proper precautions. It is advisable to make the background check a requirement once a conditional offer has been made. This would avoid any allegations that hiring practices contravened human rights law upon a discriminatory ground. For instance, requesting a criminal background check after extending a conditional offer avoids the possibility of a hiring decision being influenced by past criminal offences.

Criminal Record Policy

Having a workplace policy that prohibits employment of those with past convictions for which a pardon has been granted is a violation of human rights law. However, there is an exception if, and only if, the workplace policy is a bona fide occupational requirement (“BFOR”). This means that under no circumstances is it possible to employ an individual with a past particular criminal conviction  without suffering undue hardship as an employer.

This is a difficult standard to meet. At the very least, a workplace policy that prohibits a past conviction should be limited to past convictions that closely relate to the job. For instance, if the nature of employment deals with handling sensitive financial information, then having a policy that disqualifies individuals based on recent past convictions of financial fraud would likely be reasonable.

Conclusion

When seeking to enforce or implement workplace policy that deals with criminal record checks, it is important to take all necessary precautions as this is a human rights matter. The policy should relate to past convictions closely related to employment and take into consideration the time past since the conviction took place. It is always best to seek consultation from an employment lawyer when dealing with human rights matters.

Your Legal Rights in Disability Insurance Disputes

| June 9th, 2016 | No Comments »

disabilityAn employee who becomes disabled, or otherwise becomes incapable of performing the essential functions of their job, and may be entitled to income replacement through the employer’s short-term and long-term disability insurance policies.  The process is not always straightforward, making it important for both employees and employers to understand their rights:

For Employees

Employees have a basic right to dignity and fair treatment in having their disability insurance claims assessed.  While medical evidence will be required to substantiate a claim for disability insurance coverage, the employee will not be subject to the whim of the insurer’s medical team.

Similarly, the employee has the right to have their claim fairly treated, and on the presumption that their claim is legitimate.  An employer or provider that treats an employee with suspicion about the validity of the claim may find itself in hot water if the claim is rejected.

It is common to see an employee’s disability insurance coverage terminated before they are fit to return to work.  An employee may also find their initial application rejected, despite not being able to perform their duties.  Employees are entitled to challenge unfair or unsupported determinations about their coverage, which means that the employee should promptly retain legal counsel if this situation arises.

The result of this right is that the employee is entitled to retain their employment with the employer while receiving disability insurance benefits.  This right, however, is not absolute.

For Employers

In very limited circumstances, the employer may have the right to dismiss a disabled employee, where it appears that the employee will be unlikely to perform the essential functions of their job for the foreseeable future.  An employer should never dismiss a disabled employee without first obtaining sound legal advice.  Disability is a protected ground under both federal and provincial human rights legislation, which means that dismissing a disabled employee may constitute discrimination.

Employers also have the right to be appraised of the status of the employee’s insurance claim.  If disability insurance coverage is rejected or discontinued, the employer may be at liberty to require the employee to return to work, or to dismiss that employee.  These steps should not be taken without legal advice, as termination of disability insurance coverage does not circumvent an employer’s obligations under human rights legislation.

 

Author: Marc Kitay, Whitten & Lublin

Should I tell prospective employers about my disability?

| February 9th, 2015 | No Comments »

Disability is a factor that can affect your job search efforts.  For instance, there are disabilities classified as “invisible” disabilities that are not physically noticeable, such as Asperger syndrome. People who have this do not display any symptoms. However, it is considered a high functioning form of autism which can affect a person’s ability to read body language among other factors. This can potentially affect their social abilities and further, their employment.

Readers for the Globe and Mail have taken an interest on this topic and are curious to know; do prospective employers need to know that the applicant employee has a disability? What does the legislation say? Toronto Employment lawyer, Daniel Lublin advises that during the interview process, an applicant employee does not have an obligation to disclose this information if it does not affect one’s work performance. However, there are other factors to consider.

To understand more on this topic, read Daniel Lublin’s Globe and Mail column and full article I have Asperger syndrome. Should I tell interviewers?

Dealing with unpleasant issues in the workplace

| February 27th, 2014 | No Comments »

In almost every workplace you will find employees with different backgrounds, habits and styles that can be distracting or annoying, especially when it comes to poor personal hygiene, including body odour, bad breath, etc.  Knowing how to address those issues without crossing any legal lines can be challenging.

In his recent Globe and Mail article, What can we do if a colleague emits a strong odour?, Daniel Lublin answers some commonly asked questions from readers, such as dealing with an employee’s poor hygiene and individual severance entitlements.

Daniel Lublin’s quote on this topic is summed up below: “Some of the causes of the odour could be protected under human rights laws (age, race, religion, disability), which means discipline or dismissal is prohibited unless you can show she cannot perform the job you hired her for because of the smell. If the smell is because of poor hygiene, then you have more options and can treat this as any other form of non-compliance with the company’s expectations.”

For this reason, it is always wise to consult with an employment lawyer who will explain what your rights are and give you a legal opinion and strategy regarding workplace issues. To learn more, Mr. Lublin’s article can be found here.

 

It is hard to lose the game when you make the rules

| March 29th, 2011 | No Comments »

Privacy in the workplace continues to dominate the legal and policy discussions.

Most recently, Jerry Agar of CFRB 1010 and the Toronto Sun, addressed the issue in an editorial. Naturally, he sought the advice of employment lawyer, Daniel A. Lublin, prior to putting pen to paper. Commenting on the recent landmark decision, Mr. Lublin indicated it was a “seismic shift” in workplace privacy rights. Lublin encourages employers to create good information technology policies in the workplace. As he says; “It is hard to lose the game when you make the rules, so set good rules in place.

Small victory for transgendered and transsexual individuals

| February 16th, 2011 | No Comments »

By: Ellen A. S. Low

A private members bill recently passed through the House of Commons, Bill C-389, is intended to protect transgendered and transsexual citizens from discrimination on the basis of “gender identity” or “gender expression.”

The Canadian Human Rights Code already protects individuals on basis of sex and sexual orientation; however the bill would amend the Code to specifically prohibit discrimination against transgendered and transsexual persons.  The Bill also proposes to amend the Criminal Code to make crimes against transgender or transsexual people, a hate crime.

Supporters are concerned that the Bill might be a short-lived success, as it likely won’t survive the Senate.  However, with respect to the human rights element, Bill C-389 might be unnecessary.  A number of previous Canadian Human Rights decisions have clearly stated that “…discrimination on the basis of transsexualism constitutes sex discrimination.”  Interpreted in this way the ground of “sex” should be sufficient to protect transgendered and transsexual citizens from discrimination under the Code.  Then again, adding it expressly certainty couldn’t hurt.

Beauty is in the Eye of the Employer

| February 2nd, 2011 | 1 Comment »

In case you missed the headlines two years ago, another Canadian server has been fired for shaving her head.  A recent article in the National Post has caused much debate over the server’s “right” to shave her head with impunity in support of cancer. 

Stephanie Lozinski, a Manitoba server, shaved her head to support her uncle’s battle with cancer.  Soon after, she was told that her bald head was not in keeping with the restaurant’s dress code and that she would be let-go.  Manager Linh Bo was quoted as saying, “If you go to fine dining, what do you expect from a server? Seriously.”  Soon after, Lozinski launched a complaint to the Manitoba Human Rights Commission. 

Seems like a slam dunk right?  But before you jump to any conclusions, here are a few things to consider…

What is protected under the human rights legislation?

Human rights laws prohibit discrimination based on particular “grounds” that are listed in the relevant legislation.  All provinces prohibit discrimination and ensure equal treatment based on: age, sex, marital status, sexual orientation, religion, colour, creed, disability, etc.  The legislation recognizes these prohibited grounds as inalienable characteristics.

What is not protected?

Anything not listed as a prohibited ground does not have protection pursuant to the human rights legislation.  This means an employer can choose not to hire bald people, people with tattoos, people with facial piercings, freckles, facial hair, or, as in this case, people with certain hair styles. 

Further, an employer can create and enforce dress codes prohibiting employees from having any of the above.  Why?  Unless the characteristic is directly related to a prohibited ground, such as religious dress requirements, it is not protected, and it’s not a “right”.

For example, a man working in a soup kitchen may have grown a beard for religious reasons or simply from a lack of maintenance – the difference in rationale matters to the tribunal in determining whether the employee deserves protection, or deserves to go.

How does this apply to the case?

If Lozinski were terminated because she had cancer this would be discriminatory.   If her employer allowed male employees to have a shaved head, but not female employees, this would be discriminatory.  But despite the fact that Lozinski shaved her head in support of a prohibited ground, this does not provide her with impunity from discipline or termination.  Especially if she knew about the dress code and shaved her head anyway.

In the end, the Manitoba Human Rights Commission refused to hear her complaint as it was unrelated to a prohibited ground of discrimination.  Though her decision to shave her head was commendable, there were other ways she could have shown support and brought attention to the issue without jeopardizing her job.

Lessons for other employees?

Employees will want to think twice and check with their employers before contravening the dress code in support of a prohibited ground.  For example, those participating in ‘Movember’ without their boss’s approval may be subject to discipline, as facial hair without a religious purpose has no protection under the code.

Tribunal Calls False Start on Race

| January 31st, 2011 | No Comments »

Daniel Lublin writes in the Metro about the recent dismissal of an assembly line worker who was quick to assume that all harassment is gender-based.

Donna Race worked as an assembly line worker in an auto plant – an area of work typically dominated by men.  She complained to management that the volume of the music being played was affecting her hearing.  After threatening remarks from co-workers, she decided it was time to take further action.

The Ontario Human Rights Tribunal dismissed her claim of gender-based harassment based upon two key points. (1) Although one employee had called her a “bitch”, this single act did not amount to discrimination, as it was never raised as a concern to management and the employee apologized (2) The basis of Race’s complaint, as the employer successfully argued, was not gender-based but volume-based.  Since Race was unable to prove that she was treated any differently based upon her gender, the case was dismissed.

It is important to recognize that not all offensive statements are acts of discrimination.  Workplace arguments should be brought to the attention of management before taking more drastic measures.  This case comes at a good time as it should remind employees of the recent changes to the Employment Standards Act.  As a part of the process, the Ontario government’s Open for Business Act now requires employees to inform employers of concerns before making a complaint.  The hope is that this requirement will help resolve cases like this one in the office instead of the Tribunal.

Brett Favre and New York Jets face workplace lawsuit for harassment

| January 5th, 2011 | No Comments »

According to an article in the National Post, Brett Favre and the New York Jets are being sued by two former massage therapists in a workplace lawsuit claiming they lost their jobs after complaining about sexually suggestive text messages from Favre.

The women allege that Favre proposed off work meetings with them in sexually suggestive ways.  When they declined his advances, they were effectively blackballed from working for the team and its players, they claim.

In Canada, employees can make legal claims against employers for reprisal, constructive dismissal, harassment and discrimination when there is a loss of work due to rejecting the sexual advances of another employee or supervisor.  These claims can be brought at provincial human rights tribunals or through the courts.

In order to prevent exposure from these claims, employers should consider the following advice:

– implement clear policies on sexual harassment and consistently enforce them.

– conduct investigations by a third party or neutral investigator as soon as allegations of harassment occur.  Do not jump to conclusions without first providing the alleged harasser an opportunity to respond.  The point of the investigation is to find the truth not to condemn one side or the other.

– Conduct annual training with managers and supervisors on addressing allegations of workplace harassment and how to apply appropriate policies in place.

– Consult an employment lawyer right away.  If there are holes in your case, don’t learn of them when you first read an ex-employee’s lawsuit.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  He can be reached at dan@toronto-employmentlawyer.com.  Daniel acts for employers and employees in all workplace law matters.