A recent article by Sally Evans in the Times Live reports the situation of an African employee who was terminated as a result of undergoing a sex change.

For several years Chris Ehlers worked as a sales representative for Bohler Uddeholm Africa, a male dominated multinational steel retailer based out of Africa.  In early 2008, Ehlers began to undergo a series of sex change procedures.  Ehlers soon became the subject of disrespectful comments by co-workers.  For example, Ehlers received an SMS message which said: “I will never have respect for low-class and a wannabe woman”.

Ehlers complained to Bohler’s management.  Following a formal inquiry, Ehlers was provided with the following ultimatum:  revert to being a man or accept a severance package.  Eventually, Ehlers was terminated after a second inquiry into the complaint found that the employment relationship had been seriously prejudiced by Ehlers.  This decision was premised on the belief that an employer has the right to protect its business image in a predominantly male-oriented market.

Ehlers is now suing Bohler for discrimination.  Despite having been offered the equivalent of $21,000 CAD to settle the case, Ehlers’ desire is to be reinstated in her position at Bohler.

Ehlers advances the position that she ought to have been kept on as a Bohler employee regardless of gender.  Ehlers had and continues to have the necessary occupational qualification, skill and knowledge to perform the duties required of a Bohler sales representative.  Ehlers’ ability to perform the work did not change in any material way once Ehlers’ identity was changed from Chris to Christine.

In response to Ehlers’ discrimination lawsuit, Bohler claims that Ehlers had failed to disclose to the company that she was undergoing sex change procedures.  Once disclosed, the parties initially agreed that Ehlers would hide the effects of the process and continue to wear men’s attire in order to protect the company’s image.  As soon as it became clear that Ehlers would identify herself as a woman in the workplace and dress in women’s attire, Bohler claims that her “continued presence in the office had become impractical”.

There is no doubt that in Canada the protections provided to employees pursuant to Federal and Provincial human rights legislation trump any interest that an employer may have in regard to its image.  The mere fact that an industry or market is male or female dominated does not make it acceptable to discriminate on the basis of gender.

If an individual is qualified to do the job, as was Christine Ehlers, gender should not come into the equation unless there are exceptions expressly contemplated by the legislation.  For example, in Ontario the following exceptions allow discrimination on the basis of sex in the employment context:

• Employment-related benefits plans;
• Services and contracting with respect to reasonable bona fide insurance differentiations, distinctions, exclusion or preference;
• Employment by religious, philanthropic, educational, fraternal or social institutions where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination; and
• Employment where a person’s sex is a bona fide occupational requirement.

If Bohler was arguing its case in Canada, it would be required to satisfy an adjudicator that Ehlers’ gender is a bona fide occupational requirement for the performance of the duties of a sales representative in the steel industry.  In my view, Bohler would face a lot of resistance in Canada.  After many years of political advocacy, our society has finally started to recognize that a person’s gender does not, in any way, determine one’s ability to perform work-related duties.  To accept Bohler’s position would constitute a regression to the many advancements our society has made with respect to the equality of sexes.

By: Ellen Low

So, it’s finally summer, and it turns out you hate your job, your manager, and working in general.  Can hating your job be a human rights issue?  It depends.  In certain circumstances, an employee who hates working, and the way they are being managed, could raise human rights issues in the workplace.

While employers have the right to manage the workplace and issue instructions to employees, a human rights issue may arise when an employee is so unhappy with the workplace that it manifests itself in an illness, such as depression, anxiety disorder, stress, or high blood pressure.  In instances where the workplace is actually making the employee ill, human rights legislation may provide the employee with protection against discrimination based on the protected grounds of disability.

These protections include an employer’s obligation to accommodate the disability,  as well as a general prohibition against terminating an employee’s employment as a result of the disability.

For example, an employee may legitimately obtain a doctor’s note requiring a leave of absence due to stress.  While the employer has the right to request further information from the employee regarding any workplace limitations, accommodation requirements, and a potential return-to-work date, the employer is prevented from retaliating against the employee for taking the required time off or requesting accommodation in the workplace.

Employees who hate working and the way they are being managed, should speak to an employment law professional for practical advice on navigating sick leave entitlements, disability, human rights, and other issues.  But, employees hoping sick leave will give them the extra-long summer vacation they’ve been looking for should know that abuse of sick leave, or fraudulent sick leave, is grounds for immediate termination.

By: Cédric P. Lamarche

An article by Michele Henry published in the Toronto Star on June 21, 2010, discusses the case of a young black woman who was sexually harassed and was the object of racial taunts at work.

The object of the reprehensible conduct, Stacey Walker, worked at Toronto Western Hospital’s imaging department as an imaging technologist.  The author of the article reports that the inappropriate conduct towards Ms. Walker included the following:

• Displaying racially charged cartoons in the workplace;
• Making statements such as “Don’t beat me up massa” and  “Get up, give me your seat and go make me some stew”;
• Inappropriate and suggestive touching, such as massaging her shoulders;
• Stating “I wish you weren’t wearing a shirt or bra, that way I could give you a better massage”;
• Calling her Shaniqua, Chaka Khan, La Toya and Dark Walker; and
• Throwing her credentials badge on the floor and whipping a bottle cap at her legs while she bent over to pick it up.

This conduct, according to the article, started only 9 days after Walker’s first day on the job.  Ms. Walker complained to management, but her complaints fell on deaf ears and were ignored for 16 months.  During this time, the conduct continued and rumors quickly spread through the Hospital.  Many of Ms. Walker’s colleagues formulated their own conclusions and impressions regarding her complaints.  Only once Ms. Walker’s complaints reached the ears of a senior manager, a formal internal investigation was launched and, according to the article, confirmed the inappropriate conduct.

Employees who believe that they are being subjected to discriminatory conduct at work should not dismiss the inappropriate behaviour.  It is paramount that the employees review any discrimination and/or harassment policies implemented in their workplace and follow their protocol.  Note that as of June 15, 2010, employers in Ontario have an obligation to formulate policies addressing workplace harassment and violence, due to the recent amendments to the Occupational Health and Safety Act.

Employees are also encouraged to consult with employment law experts to review their case.  Even if an internal investigation is conducted, the employer may be liable to the employee if they do not abide by strict guidelines dictated by law.  Situations of discrimination or harassment can give rise to cases of constructive dismissals, in addition to human rights violations.  In Ms. Walker’s case, despite the Hospital’s investigation into the matter and despite any affirmative actions taken by the Hospital to remedy the poisoned work environment, the Hospital’s unreasonable delay in addressing Ms. Walker’s complaints may sufficiently demonstrate that the employee – employer relationship has been tainted to the point where continued employment would be intolerable.

There is a scam being run by employers across the country, and it is permitted by law.

Most employment law prohibit dismissal during or after maternity leave.  Yet it happens anyway.  This is because there are various “exceptions” in the legislation permitting dismissal where it is unrelated to the leave.

In Ontario, the Employment Standards Act, 2000 states:

53. (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.

What this essentially means is that where the employer has reasons to terminate an employee’s employment that are completely unrelated to the fact that the employee went on a pregnancy or parental leave reinstatement will not be required.

Although many employers try to fit employees within this exception, it is not meant to permit dismissal in cases that are not clearly unrelated to the leave.  The question usually asked is, but for the leave, would the employee have lost their job?

In my Metro news article from last week, I discuss this in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

By Cédric P. Lamarche

Puisque l’internet permet l’accès à un monde électronique sans frontière, la majorité des employeurs adoptent des règles très rigides en ce qui a trait à la consultation de sites internet lors des heures de travail.  Effectivement, ces règles visent à réduire les activités qui ne se rapportent pas au travail, et plus particulièrement, l’accès au contenu explicite qui se trouve en ligne.  Grâce à des technologies sophistiquées qui permettent la détection et la documentation d’activités électroniques, les employeurs peuvent assurés avec beaucoup plus de facilité l’observation de ces règles.

Dans un article intitulé Surfing porn still popular at work, qui a été publié récemment dans le Globe & Mail, l’auteur discute du fait qu’un nombre très élevé de personnes consultent régulièrement des sites internet pornographiques lors des heures de travail.   Selon l’article, les résultats d’une recherche démontrent que 70% des gens qui accèdent des sites pornographiques le font lors des heures de travail.  À titre d’exemple, l’auteur présente le cas d’un avocat sénior qui fut trouvé à passer jusqu’à huit heures par jour à consulter des sites pornographiques alors qu’il était au travail.

La question suivante devient donc très pertinente pour les employeurs ainsi que les employés : Est-ce qu’un employeur peut congédier un employé, avec motif valable, pour avoir consulté des sites pornographiques au travail ?  À première vue, la réponse à cette question semble évidente.  Toutefois, comme c’est souvent le cas dans le domaine du droit du travail, elle ne l’est pas.

Alors que la consultation de sites pornographiques au travail semble constituer un acte grossier qui pourrait vraisemblablement nuire à la réputation d’un employeur et causer des répercussions sérieuses pour une entreprise, il faut considérer les protections qui sont offertes aux employés par l’entremise du Code des droits de la personne de l’Ontario.  Notamment, le Code protège les employés contre la discrimination fondée sur l’existence présumée ou réelle, actuelle ou antérieure, d’un handicap.  Il reste à savoir qu’est-ce qui peut possiblement être considéré comme étant un handicap.

Est-ce qu’une dépendance à la pornographie peut être considérée comme étant un handicap ?

Si la réponse à cette question est dans l’affirmative, comme c’est le cas pour la dépendance à des substances contrôlées ainsi qu’à l’alcool, un employeur pourrait avoir l’obligation de prendre des mesures d’adaptation envers l’employé souffrant d’un tel handicap.  Ainsi, un employeur qui congédie un employée pour avoir consulté des sites pornographies lors des heures de travail, pourrait faire face à une requête pour discrimination devant le tribunal des droits de la personne s’il peut-être démontré que l’employé souffre ou semble souffrir d’une dépendance à la pornographie.

By: Ellen A. S. Low

A recently-released Dutch study examines perceived differences between women who adopt their partner’s name, and those who chose to keep their own last name after marriage.

As part of the study, 50 participants were asked to judge a female job applicant for a human-resources manager position, as well as to estimate her potential salary.  Based on the results, participants were less likely to hire the woman if they knew she had taken her partner’s last name.  Further, participants estimated that the woman who took her partner’s name would earn, on average, $1,150 less per month than the woman who kept her own name.

In Ontario, differential treatment in your employment based on whether you are a “Mrs.” or a “Ms.,” is prohibited by the Ontario Human Rights Code (the “Code”), and may be discrimination on the basis of marital status.  The Ontario Human Rights Tribunal has previously determined that “perks” which are only available to married persons may be discriminatory.  For example, the Tribunal has held that it was discriminatory for a company to provide a “return-home” flight every three weeks to married employees, but deny the same benefit to non-married employees. Further, the Tribunal has also determined that the Code is breached if an employee is dismissed, or not hired, because of her marital status. For example, a company breached the Code by refusing to hire a married employee because it assumed she would be unwilling to relocate. The Tribunal held this was discrimination based on marital status.

Whitten & Lublin LLP is a team of legal experts who provide practical advice and advocacy for workplace issues.

Canadian employers have historically taken an ignorant view of human rights tribunals and their often extraordinary decisions. But that may be quickly changing.

Sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial legislation — such as human rights laws — in a broad and inclusive manner, should leave employers very concerned:

Broadcasting cases.  The Human Rights Legal Support Centre, a government funded program, sends press releases publicizing OHRT decisions.

Cost awards.  There are few cost disincentives for applicants at human rights tribunals.

Assumed jurisdiction.  The tribunals assume their own jurisdiction often before a hearing on those matters.

To read the full article, published in the Metro News, link here.

– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.  Reach him at dan@toronto-employmentlawyer.com

The story of Jordan Wimmer, which we initially reported last week, continues.  In Today's Toronto Star story, Millionaire hedge fund boss, Mark Lowe, responds to Wimmer's allegations as "gross distortions" and "hugely offensive."

But under examination by Wimmer's lawyer, Lowe was forced to explain a series of "joke" emails that he forwarded around the office to employees, including Wimmer.

One email, entitled "Who is your real friend?" read: "Put your dog and your girlfriend in the boot (trunk) of your car for an hour and then see who is happy to see you."

Lowe admitted to the tribunal he had openly called Wimmer a "dumb blond" and referred to her as "decorative."

But he insisted: "It was said entirely as a joke. It was never intended as an insult."

In Canada, employees would make a complaint to a human rights tribunal or a claim of constructive dismissal through the courts. 

Damages for cases such as this would be assessed based on how long it would or should have taken Wimmer to find reasonably comparable work and whether she suffered any compensable mental distress. 

The Supreme Court of Canada recently rules on mental distress cases in the workplace in the Keays case, finding that the amount of damages should be consistent with an employees actual losses.  An example would be where the employee has taken longer to find other work that she normally would have.

Daniel A. Lublin is a partner with the employment law firm Whitten & Lublin LLP, which provides employees and employers with human resources advise and wrongful dismissal advocacy. Reach Daniel at dan@toronto-employmentlawyer.com

A canadian woman working as a top executive at a London, England company is suing her boss for 8 million dollars in a UK Employment Tribunal for allegations that he brought prostitutes to meetings and repeatedly called her a "stupid blonde" before she was fired, as reported in a National Post article here. 

In Canada it is an implied term in every employment relationship that employees be treated with decency and civility, the breach of which can lead to damages for termination, commonly known as a "constructive dismissal."  An example of a constructive dismissal case can be read here.   

In addition, Canadian legislation prohibits discrimination or harassment based on grounds such as gender or race.  

Daniel Lublin is a lawyer with Whitten & Lublin which is an employment law firm in Toronto, Ontario assisting employees and employers with workplace legal matters.  

The Human Rights Tribunal of Ontario recently reported the decision in Maciel v. Fashion Coiffures, siding with the applicant who was terminated immediately following the announcement of her pregnancy. 

The press release by the Human Rights Legal Support Centre indicates that Vice Chair Naomi Overend noted Ms. Maciel's vulnerability in her decision by outlining that "She was young, just out of school, and coping with an unplanned pregnancy. This was to be her first full-time job, which she testified she was very excited about, making the experience that followed that much more distressing."

Follow this link to the Globe & Mail article on Ms. Maciel's ordeal.

A copy of the decision can be found by clicking on the link below.

Download Maciel v Fashion Coiffures doc

Whitten & Lublin is an employment law firm providing counsel to both employers and employees on a wide range of employment law issues.