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“Oh, what a tangled web we weave when first we practice to deceive.”

Employer avoids liability for harassing texts sent by rogue employee

In an interesting decision, the Human Rights Tribunal of Ontario has ruled that an employer is not liable for discriminatory and harassing texts sent by a rogue employee to another of its workers.

In Baker v. Twiggs Coffee Roaster, Tamra Baker commenced a human rights application against her former employer, Twiggs Coffee Roaster, alleging that her pregnancy was a factor in the decision to terminate her employment. In support of her application, Baker relied on a series of text messages that she received from her friend and coworker, Cara VanDerMark in which VanDerMark advised Baker that the owner of the coffee shop had found out that Baker was pregnant and didn’t believe that she could do her job as she became “bigger”. Of course, this was all news to the coffee shop’s owner, who had instructed VanDerMark to call Baker and let her know that she was not needed for her scheduled shift; the owner intended to terminate Baker’s employment later that day for performance reasons.

Following a two-day hearing, the Tribunal ruled that there was no evidence to suggest that the employer knew that Baker was pregnant at the time that her employment was terminated. As a result, there was no breach of the Human Rights Code. Based on the evidence, the Tribunal concluded that VanDerMark had mistakenly thought that it would be less upsetting to her friend to think that her employment was terminated because of her pregnancy instead of her job performance, so she lied.

However, because VanDerMark’s text message could arguably constitute sexual harassment, the Tribunal considered whether the employer should be held vicariously liable for her behaviour. Ultimately the Tribunal recognized that under the Human Rights Code, a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to sexual harassment unless the employer was aware of the behaviour and failed to take reasonable steps to correct it. Given that the employer was unaware of the co-worker’s texts, it could not be vicariously liable for these actions.

This case is a good reminder for everyone – employers and employees – to think before they click send on any text or e-mail message. As this case demonstrates, trouble may be only one click away!

Baker v. Twiggs Coffee Roaster, 2014 HRTO 460 (http://www.canlii.org/en/on/onhrt/doc/2014/2014hrto460/2014hrto460.pdf).

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“Oh, what a tangled web we weave when first we practice to deceive.”

Direct Evidence of Discrimination not Required: Ontario Human Rights Tribunal

Direct evidence of discrimination is not required for an employee to succeed before the Human Rights Tribunal of Ontario, the Tribunal has decided.  The decision provides guidance as to what evidence is required to prove discrimination.

In Islam v. Big Inc., 2013 HRTO 2009, the Human Rights Tribunal of Ontario ordered a Toronto restaurant to pay nearly $100,000 in damages to three former kitchen employees.

The former employees alleged discrimination in employment contrary to the Ontario Human Rights Code after their employment ended (two of the employees were dismissed while the third quit). The applicants were immigrants from Bangladesh who spoke Bengali and were practising Muslims. They alleged discrimination by their employer on the grounds of race, colour, ancestry, place of origin, ethnic origin and creed. Their complaints included allegations that the owners mocked them when they spoke Bengali, implemented an “English in the kitchen” rule, insisted that two of the employees taste pork even though it was against their religious beliefs, and forced one worker to taste the food he was preparing while he was fasting during Ramadan.

In its decision, the Tribunal discusses what evidence is required to prove discrimination:

Direct evidence of discrimination, such as testimony from a witness to discriminatory conduct, is not necessary to establish a breach of the Code. The applicant may rely on circumstantial evidence, which may include evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 (CanLII).

In this case, the parties disagreed as to whether many of the alleged incidents had occurred at all. The Tribunal held that “finding that it is more probable than not that a contested event occurred or did not occur is not the same as finding that any particular witness is not speaking the truth”. There is a difference between credibility (i.e. a willingness to speak the truth as the witness believes it to be) and reliability (i.e. the actual accuracy of the witness’s testimony). The Tribunal outlined the following factors to be considered in appraising reliability and credibility of witnesses:

  • The internal consistency or inconsistency of evidence;
  • The witness’s ability and/or capacity to apprehend and recollect;
  • The witness’s opportunity and/or inclination to tailor evidence;
  • The witness’s opportunity and/or inclination to embellish evidence;
  • The existence of corroborative and/or confirmatory evidence;
  • The motives of the witnesses and/or their relationship with the parties;
  • The failure to call or produce material evidence.

Despite the fact that the Tribunal found “[t]here is little uncontested or objectively verifiable evidence available to guide [it] in making findings of fact”, the Tribunal ordered the respondent to pay to the three applicants close to $28,000, plus interest, to compensate for loss of income. In addition, the Tribunal awarded damages to the three employees, in the amounts of $37,000, $22,000 and $12,000 respectively, to compensate for violations of the inherent right to be free from discrimination, and for injury to dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

Islam v. Big Inc., 2013 HRTO 2009

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Direct Evidence of Discrimination not Required: Ontario Human Rights Tribunal

Don’t be “Convicted” of Discriminating based on Criminal Convictions

Picture it: you have the perfect person to hire. You run the background check, and discover a criminal conviction. You are inclined to withdraw the offer, but suddenly you are faced with the question: can I do it?

The answer will depend on which province you are in. Below is a summary of the human rights implications of asking about criminal convictions in Ontario, BC, Quebec, Alberta and Saskatchewan. In addition to the human rights implications, an employer will also have to consider privacy rights in proceeding.

Ontario

In Ontario, there is no protection for applicants for employment against differential treatment based on a conviction, unless the conviction is for (i) a provincial offence or, (ii) in the event of a criminal offence, a pardon has been obtained. This occurs because although the Ontario Human Rights Code does provide protection from differential treatment based on a “record of offences”, it defines “record of offences” as follows:

“a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.”

Given this definition, there is no protection against differential treatment based on a criminal offence (which is a federal statute), unless a pardon has been obtained. Accordingly, an employer can treat a person differently based on an unpardoned criminal conviction in Ontario.

British Columbia

The B.C. Human Rights Code prohibits discrimination in employment on the basis of a summary or criminal conviction where the offence is “unrelated to the employment or to the intended employment of that person”. As such, an employer may not treat a person differently on account of a criminal record unless it is related to the employment. In this respect, the B.C. Code protects a broader range of situations than the legislation in Ontario. The B.C. Human Rights Tribunal and courts have consistently held that whether a conviction is related to employment must be considered in every case with respect a series of factors, including:

  1. whether the behaviour for which the charge is laid, if repeated, would pose a threat to the employer’s ability to carry on business safely;
  2. the circumstances and particulars of the offence, including the individual’s age and other extenuating circumstances; and
  3. the amount of time elapsed since the charge and the individual’s activities or rehabilitation efforts since that time.

Given these provisions, employers in BC must be cautious in asking for information concerning a criminal record; depending on the type of job for which the person is being hired, even asking for this information may expose an employer to a human rights or privacy complaint.

In B.C., if an employer asks a job applicant whether he or she has a criminal record, and the applicant answers “yes” to the question, the employer may not disqualify the person simply on that basis without exposing itself to a human rights complaint. From a practical perspective, it may be difficult to defend such a complaint if the person is otherwise qualified for the position. An employer would have to demonstrate that the particular offence is related to the person’s employment by obtaining more information about the offence and the circumstances surrounding it, including considering the above factors. If it can demonstrate that the conviction is related to the person’s employment – for example, an applicant for a controller position has a fraud conviction from six months ago – then it may be able to disqualify the applicant on that basis.

Quebec

The Quebec Charter of Human Rights and Freedoms (the “Charter”) prohibits discrimination in employment on the basis of a penal or criminal conviction where the offence is “in no way connected with the employment or if the person has obtained a pardon for the offence”.

Accordingly, in Quebec, if an employer refuses to hire an applicant because of his/her criminal record or dismisses an employee for the same reason, it must be able to demonstrate that there is a connection between the criminal record and the employment. The question of the connection to the employment is examined on a case-by-case basis, considering factors similar to those outlined in respect of the B.C. legislation above. In general terms, the greater the degree of integrity and trust that the position requires, the easier the connection may be to establish because the expectations of an employer in such a position will be higher.

 Alberta

Alberta does not have “criminal convictions” or something similar as one of the prohibited grounds in its Human Rights legislation. There is therefore always an argument that a refusal to hire someone due to a criminal record is not discriminatory in Alberta with respect to human rights. That said, employers should be careful when making a hiring decision based on information or a conviction that is not related to the position for which the person is being hired. The employer should also obtain consent to conduct these searches and procedures should be put in place to satisfy any privacy obligations with respect to the disclosure of this personal information (i.e. only limited personnel in Human Resources should view the results and the information should be kept in a secure location, etc.). Alberta’s Personal Information Protection Act may also place restrictions on what personal information an employer may gather in the course of background-checking a job applicant.  B.C. and Quebec also have their own provincial personal information protection legislation that should be considered in those provinces.

Saskatchewan

Similar to Alberta’s legislation, The Saskatchewan Human Rights Code does not list “criminal convictions” or anything similar as one of its prohibited grounds. It appears that the Saskatchewan Human Rights Commission conducted an extensive review of its Code in 1996 and recommended that the list of prohibited grounds be expanded to protect people from discrimination if they have been charged with or found guilty of a criminal or summary conviction offence that is unrelated to their employment or intended employment. However, this recommendation still does not appear to have made its way into the current version of the Saskatchewan Code. As a result, asking this type of question should not be considered discriminatory in Saskatchewan because it is not a protected ground. Nevertheless, similar to Alberta, employers should be cautious in proceeding with such checks and in relying on such information.

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Don’t be “Convicted” of Discriminating based on Criminal Convictions

Compliance Reminder – Accessibilty for Ontarians with Disabilities Act

The Accessibility for Ontarians with Disabilities Act (“AODA”) has been around for a while.  So what’s the big deal now?

For starters, recent Freedom of Information Act requests have demonstrated that about 70% of Ontario private sector employers with 20 or more employees have not yet complied with required self-reporting requirements to demonstrate that they are compliant with the AODA.  Perhaps more importantly, most private sector employers with 20 or more employees don’t even realize that they have certain obligations under the AODA as of January 1, 2014.

While reference should be had to the legislation for particulars as to the imminent requirements, the following should serve as a high level overview of what needs to be done by certain employers.

1.  Public sector employers with 20 or more employees are to file a compliance report with the Ontario government by December 31, 2013, confirming that they are currently compliant with the Accessibility Standards for Customer Service.  The filing can be done online.

2.  By January 1, 2014, those same employers must also develop policies governing how they will meet their requirements under the Integrated Accessibility Standards.   In addition, a multi-year accessiblity plan must  be developed, posted on the organizations’ websites, and provided in an accessible format upon request.

3.  For employers with 50 or more employees in Ontario that are launching a new website or undertaking a significant website refresh after January 1, 2014, the website is required to conform to the World Wide Web Consortium Web Content Accessbility Guidelines 2.0 Level A unless an exception applies or the company can demonstrate that meeting the guidelines is not practical.

Because most Ontario businesses are not compliant with the AODA, the Ontario government has begun issuing notices of non-compliance and has indicated that it intends to pursue businesses which are non-responsive.

For further information, see the Ontario government’s website on AODA requirements: http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/

 

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Compliance Reminder – Accessibilty for Ontarians with Disabilities Act

Human Rights claims in the Ontario courts – Now What?

Way back in 2008, the Ontario Human Rights Code was amended to permit human rights claims to be piggybacked onto wrongful dismissal actions in the Ontario courts.  Prior to that time, the only recourse for an employee with a discrimination claim was to make a complaint to the [then] Human Rights Commission.  Some 5 years later, the Ontario Superior Court of Justice has recently released its very first decision in a joint wrongful dismissal/discrimination action.

The case in question was the September decision of Justice Grace in Wilson v. Solis Mexican Foods Inc.  Patricia Wilson was a 16 month employee at the time of her termination, and off work due to back problems.  The reason given for Ms. Wilson’s termination was a corporate reorganization, but the court found that reasoning “[defied] common sense” as Ms. Wilson was never told about the impending reorganization while it was taking place.  The court looked closely at the communications between Ms. Wilson’s doctor and employer, and found that the only conclusion that could be drawn was that the employer was not happy with Ms. Wilson’s ongoing back problems and absences from work, or her requests for accomodation.  Justice Grace reiterated that as long as an employee’s disability is a factor in the decision to terminate, there will be a finding of discrimination.  That is the case whether the disability is the sole factor or simply one small factor in the decision-making process.  In this case it was clear to the judge that Ms. Wilson’s back problems were a significant factor in the decision to terminate, but the result would have been the same even if her back problems were but one factor along with the reorganization.

Having determined that Ms. Wilson had been discriminated against, the court awarded her $20,000 due to the fact that she “lost the right to be free from discrimination” and experienced “victimization”, and due to the fact that the employer orchestrated her dismissal and was disingenuous both before and during the termination.  That amount was in addition to the damages received in lieu of notice of termination.

Interestingly, the court did not comment on whether or not reinstatement of employment was an option, thereby leaving that issue to another court on another day.  While employees pursuing complaints at the Human Rights Tribunal can seek reinstatement, and while the Human Rights Code appears to permit courts to make similar orders, we still have no guidance as to whether reinstatement will become a tool used by our courts.

To view the decision, click here:  http://canlii.org/en/on/onsc/doc/2013/2013onsc5799/2013onsc5799.html

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Human Rights claims in the Ontario courts – Now What?

Reinstatement of Employment Ordered – a Decade after Disability Leave Commenced

In a March 2013 decision that is likely to be challenged in the courts, the Ontario Human Rights Tribunal has ordered the reinstatement of an employee a decade after she went on disability leave, together with loss of wages from June 2003 until the date of reinstatement.

In a 2012 decision in  Fair v. Hamilton-Wentworth District School Board, adjudicator Joachim found that the respondent school board had discriminated against the employee by failing to accommodate her disability.  In particular, in 2001 she developed an anxiety disorder as a result of the highly stressful nature of her job, and went on long-term disability.  She was subsequently assessed as capable of gainful employment in 2004.  From mid 2003 onwards however, the school board failed to take any steps to offer her available alternative work, even though similar jobs were advertised and the employee underwent job hardening in positions for which the employer was seeking employees.

In March 2013, adjudicator Joachim rendered her decision in relation to the remedy for this case of discrimination.  She found that because: (i) the employee had commenced her initial complaint with the Ontario Human Rights Commission only 4 months after her employment was terminated; (ii) the delay was largely at the hands of the Commission; and (iii) the employee had confirmed that she was seeking reinstatement when her application was subsequently filed with the Tribunal, there was no good reason to not order reinstatement due to the passage of time.

As a result, the employer was ordered to reinstate the employee despite her absence from work for almost a decade.  In addition, the employer was ordered to pay the employee’s lost wages, benefits, expenses and pension contributions over that period of time, which amounted to over $400,000 (subject to any employment insurance and related deductions).  Finally, adjudicator Joachim awarded the Applicant $30,000 as compensation for the injury to her dignity, feelings and self-respect.

Despite the likelihood of an appeal, this is an important decision as it illustrates the potential liability associated with a failure to return an employee to work after his or her disability leave.

Hamilton-Wentworth District School Board, 2013 HRTO 440 (CanLII)

 

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Reinstatement of Employment Ordered – a Decade after Disability Leave Commenced

Former Employee’s Facebook Post about Settlement Breached Confidentiality Provision in Settlement Agreement: Tribunal Reduced Employee’s Monetary Award

Trish-Ann Tremblay had entered into a settlement agreement with her former employer, 1168531 Ontario Inc., on September 13, 2011, with respect to the Human Rights Application she had filed against 1168531 Ontario Inc.. The settlement agreement contained a standard confidentiality provision requiring parties to maintain the confidentiality of the terms of the Minutes of Settlement.

The next day after the mediation, Ms. Amy Lalonde, manager with the Respondent Company, was informed by a colleague that Ms. Tremblay had posted messages on Facebook about the mediation and settlement. In fact, the first message was posted during the mediation session itself:

“Sitting in court now and _______ is feeding them a bunch of bull shit. I don’t care but I’m not leaving here without my money…lol”.

After the Minutes of Settlement were signed, Ms. Tremblay posted the next message as follows:

“Well court is done didn’t get what I wanted but I still walked away with some…”

Shortly thereafter Ms. Tremblay posted the following message:

“Well my mother always said something is better than nothing…thank you so much saphir for coming today…”

While Ms. Tremblay argued that there was no proof that she was talking about the Respondents as she did not mention them by name, the Tribunal held that it was clear from the date of the postings and the comments made that she was referring to the mediation. The Tribunal found that Ms. Tremblay had breached the confidentiality provision of the Minutes of Settlement. However, the Tribunal found that the Respondent Company had also breached the Minutes of Settlement by not paying Ms. Tremblay the settlement amount.

The Tribunal ultimately ordered that the amount owing to Ms. Tremblay under the settlement agreement be reduced by $1,000. In determining the appropriate remedy, the Tribunal took into account that Ms. Tremblay did not disclose the amount of the monetary settlement in her Facebook posts. The Tribunal also considered the relatively public nature of Facebook, especially in the small community in which the applicant and respondent company resided.

When mediating issues of a sensitive nature, employers should consider including confidentiality provisions in settlement agreements that specifically prohibit disclosing terms of settlement on social media sites, including Facebook, Twitter, LinkedIn, etc.

Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939 (CanLII)

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Former Employee’s Facebook Post about Settlement Breached Confidentiality Provision in Settlement Agreement: Tribunal Reduced Employee’s Monetary Award

Social Media & Employees: When Every Little Thing Is Searchable

The scope of an employer’s right to discipline and terminate an employee for indiscreet or inappropriate remarks in social media is far from settled. Given that an employee’s social media activities have the potential to “go viral” (or at least be seen by hundreds, if not thousands of people), organizations must assess whether the activities of employees outside of work have the potential to negatively affect, even transiently, the reputation and goodwill of the organization.

Currently, the legal battle over an employer’s legitimate interest in an employee’s use of social media is being played out among employees who are relatively junior within organizations and may, justifiably or unjustifiably, believe that their actions are not under the gaze of their employers.

This post compares two recent cases from the United States and the United Kingdom with an earlier case from Canada.

Don’t Make Fun of the Customers

In a recent U.S. National Labour Relations Board (NLRB) decision, Karl Knauz Motors, Inc. (Re), the NLRB considered whether a car dealership could terminate a salesperson for comments on Facebook about an accident that involved a customer of the dealership. The customer had driven into a pond and the salesperson posted photos on Facebook with sarcastic comments. The employer argued that the comments violated employee handbook rules that required employees to be “courteous, polite, and friendly to our customers, vendors and suppliers, as well as to their fellow employees” and which prohibited conduct that was “disrespectful” or involved the “use of profanity or other language which injures the image or reputation” of the employer. In addition, not long before the post about the customer, the same salesperson had posted photos and comments criticizing food that had been served at a sales event at the dealership. The tenor of the earlier post was that the dealership should have served better food given the profile of the sales event.

The salesperson claimed that he was terminated in violation of the protections afforded by section 7 of the National Labor Relations Act (NLRA), which, among other things, provides rights to participate in concerted activity for the purpose of collective bargaining or other mutual aid or protection. The NRLB has previously issued decisions and guidance documents this year warning that social media policies must not stifle workers from communicating about workplace conditions as this would offend section 7 of the NLRA.

An administrative law judge concluded that the postings about the car accident did not fall within section 7 of the NLRA because it was posted by the employee on his Facebook page and not discussion took place on Facebook about the post. By contrast, the comments about the food at the sales event were made in the context of an exchange among employees on Facebook. The administrative law judge concluded that the comments were related to the dealership’s image at the event and this could affect the working conditions of the employees by affecting sales.

In a split decision, the NLRB upheld the decision of the administrative law judge. The employee’s termination for the comments about the customer was not protected by the NLRA. However, the NLRB ordered that the employee handbook rules were overbroad and not enforceable.

The dissenting NLRB member concluded that the requirement to be courteous did not violate section 7 of the NLRA and held that:

“[r]easonable employees know that a work setting differs from a barroom, room and they recognize that employers have a genuine and legitimate interest in encouraging civil discourse and non-injurious and respectful speech.”

Say What You Will About Gay Marriage

In the Smith v. Trafford Housing Trust, a housing manager of the Trust read a news article online regarding gay marriage and posted the link to his Facebook account with the comment “an equality too far”. The manager’s Facebook privacy settings had been set so that his posting could be viewed by his “Friends” and also “Friends of Friends”. This prompted an exchange with one of the employee’s colleagues at work, which was quite tempered but suggested that those gays and lesbians “have no faith and don’t believe in Christ”. The employee was suspended and subjected to a disciplinary proceeding that resulted in a finding of gross misconduct. The employee was offered a demotion to a non-managerial position in view of the length of his service.

According to the decision of the English High Court of Justice (Chancery Division), the Trust had over 300 employees. The court found that at the material time, the employee listed that he was a manager at the Trust. His profile stated “What can I say – it’s a job and it pays the bills”. He described his religious views as “full on charismatic Christian.” His profile and wall pages also listed that he was a manager at the Trust. In putting the post into context, the court held that it was one of a number of posts about “sport, food, motorcycles and cars.”

The court concluded that a reasonable reader of the manager’s wall would not have understood him to be a spokesperson for the Trust. The court rejected that any loss of reputation by the Trust would arise in the mind of a reasonable reader. The manager’s Facebook wall “was primarily a virtual meeting place at which those who knew of him, whether his work colleagues or not, could at their choice attend to find out what he had to say about a diverse range of non-work related subjects.” The court minimized the broader access to his wall by “friends of friends” by stating that “actual access would still depend upon the persons in that wider circle taking the trouble to access it.” The court found that the manager did not thrust his views onto colleagues at the office. The medium and context was not “inherently” work related. In the result, the court concluded that the manager had been constructively dismissed.

Don’t Diss and Threaten Other Employees or Your Employer

The problems for the employees in Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518 started when one of the employees posted on Facebook a post that could be interpreted as threatening: “Sometimes ya have good smooth days when nobody’s [expletive] with your ability to earn a living … and sometimes accidents DO happen, its [sic] unfortunate but thats [sic] why there [sic] called accidents right?” Another employee also was posting derogatory comments about managers.

The employees had close to 100 and 377 “friends” respectively. Significantly, the posts were escalating in tone and extreme enough that one person “de-friended” and even the girlfriend of one of the employees commented that ”[s]omethings just shouldn’t be broadcasted on facebook, especially when you still work there.”

The employer terminated the employment of the two employees. The union grieved but lost. In an interesting counterpoint to the Trafford Housing Trust case, the British Columbia Labour Relations Board concluded that there the comments on Facebook had sufficient proximity to the employer’s business. The comments had been used as a “verbal weapon”. They went beyond shop floor comments to insubordination in front of employees who were friends of the employees by degrading a manager and referring to discipline. The comments also counselled Facebook friends not to shop at the employer. In the result, the termination was upheld.

Substance, Purpose and Context

One should be careful to draw conclusions from a handful of cases in multiple jurisdictions with different approaches to employment and privacy laws. However, one theme that emerges in all three cases is that, in addition to the substance of the social media posts, the purpose and context for those postings are important considerations in concluding whether the employer has a legitimate interest in the activity of the employee’s social media activities.

 

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Social Media & Employees: When Every Little Thing Is Searchable

Employee with “Anger Management Issues” was not Disabled

A police officer who “suffered from bad temper and anger management problems” but said he was able to perform his job duties, was not disabled under the Ontario Human Rights Code, an Ontario court has decided.

Because the employee had failed a “use of force test”, he was required to surrender his weapon.  His “temper erupted”.  Four police officers were called to a domestic incident later that day at his home.  He assaulted all four officers and threatened to kill two of them.  He was subdued with a taser.  He had abused alcohol and disclosed a twelve-year history of binge drinking.  A psychologist stated that the employee had work-induced post-traumatic stress disorder.

The court stated that is was “not aware of any jurisprudence which established that anger management issues will support a finding of disability.”

The court went on to say:

“Addiction arising from alcoholism and/or drug abuse or post traumatic stress disorder may amount to a disability within the meaning of the Code.  However, the onus on a person claiming a disability is to prove it. There was some evidence that the applicant was addicted to alcohol and some medically prescribed drugs. There was also some evidence that the applicant was suffering from post traumatic stress disorder.  However, there was no evidence that any of those conditions rendered him unable to perform any aspect of his job description.  Indeed, quite the opposite was claimed.  In submitting through his counsel that the appropriate penalty was simply a demotion, the applicant took the position that he was able to perform and carry out his essential employment duties.”

Because the employee was not disabled, the police service had no duty to accommodate him.

This case demonstrates that employees who request accommodation of a disability must prove the disability.  This employee, who claimed to be able to carry out his police duties, was not disabled and therefore was not entitled to accommodation under human rights legislation.

Gulick v. Ottawa Police Service, 2012 ONSC 5536 (CanLII)

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Employee with “Anger Management Issues” was not Disabled

“Canadian Experience” Job Requirement: Ontario Human Rights Commission Conducting Survey

The Ontario Human Rights Commission (“OHRC”) is conducting a survey on “Canadian experience” requirements for jobs.

The OHRC has prepared two surveys – one for employers and one for job seekers who have faced “Canadian experience” requirements in job ads or in interviews.  You can fill out the survey without giving your name, or you may decide to give your contact information so the OHRC can ask you more questions if they are needed.

The OHRC intends to use what they learn from these surveys to assist job seekers to understand their rights and to help employers to understand their obligations under the Ontario Human Rights Code.

Requiring “Canadian experience” can hurt the chances of those who have not worked in Canada.  Concerns have been raised that “Canadian experience” requirements create barriers for newcomers and others who have only worked in other countries.

There are a variety of reasons why some employers believe they are justified in choosing only applicants who have worked in Canada.  Some use “Canadian experience” rules out of habit or because it is easier to track down references. Others use it because experience with and understanding of the Canadian context may be important to the job.  In any case, employers requiring “Canadian experience” should consider whether the requirement is justified, and should be aware of the risk of a human rights complaint.

For more information or to complete the OHRC survey, please see:
https://fluidsurveys.com/s/canadianexperience/

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“Canadian Experience” Job Requirement: Ontario Human Rights Commission Conducting Survey

Accommodation is a Two-way Street

What is an employer to do with an employee who demands changes to a job, without ever having done the job? A recent arbitration decision, Child Development Institute and the Canadian Union of Public Employees, local 2132 (June 21, 2012), unrep. (Charney), considered this issue.

The grievor succeeded in her application for a full-time family violence clinician position. Prior to being awarding the job, the grievor had worked for the employer in a part-time capacity. She expressed great enthusiasm and no reservations when she accepted the job. Almost immediately thereafter though, she requested changes to the job’s design. These changes initially were expressed as a preference and were not supported by medical documentation. The grievor seemed to think her changes would be a better way to run the program. The employer disagreed.

Shortly before commencing the job, the grievor raised a concern as to trauma and then provided documentation that she was suffering from serious depression. Her psychiatrist recommended that the employer implement all of the job design changes identified by the grievor.

Although the arbitrator queried, “why one would apply for a job and then without ever trying to do it, decide that it needs to be accommodated”, given the psychiatric evidence that doing the work, as constituted, would either continue or worsen the grievor’s depression, the arbitrator found that she required accommodation. After a few months – which the arbitrator excused as a reasonable period of time – the employer offered the grievor her choice of two possible reintegration plans. The grievor refused both on the basis they did not exactly fit with the accommodation she required. The employer’s third offer of accommodation also was refused.

The arbitrator was critical of the grievor’s intransigence finding that she had a duty to explore the possibilities of the accommodation offered by the employer. According to the arbitrator, “What works and what doesn’t work is an inexact science and to be able to forecast that nothing will work except the exact accommodation that the grievor has sought is a difficult proposition …. It would be more understandable to me that if she attempted the work hardening process and then if it didn’t work she continued to be unable to function, that could be dealt with.”

Given the employer’s limited funding and the funding required to achieve the grievor’s preferred accommodation, the arbitrator found ”a classic example of undue hardship”. He also concluded that the employment relationship had completely broken down and it was inconceivable she could return to work. Accordingly, the arbitrator dismissed the grievance.

This decision is a good reminder that there, in fact, are limits to the duty to accommodate and that employees must work with their employers as part of the accommodation process, not simply make unreasonable demands.

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Accommodation is a Two-way Street

Ontario Human Rights Commission’s “Policy On Competing Human Rights”

An employee’s guide dog causes a severe allergic reaction for co-workers.  A religious employer requires employees to sign a faith-based code of conduct as a term of their employment. These are examples of cases where competing human rights may exist in the workplace.

In order to assist organizations working through disputes which pitch competing human rights against one another, the Ontario Human Rights Commission developed a policy earlier this year which is meant to be a tool for resolving those disputes.  Although any dispute which pits competing human rights against one another will inevitably be determined based on the specific facts involved, the Commission’s policy has created a framework to assist with resolving those disputes before they become the subject of litigation.

The process for addressing competing human rights claims is as follows:

STAGE ONE: Recognizing competing rights claims:

Step 1: What are the claims about?

Step 2: Do the claims connect to legitimate rights?

(a) Do the claims involve individuals or groups rather than operational interests? (b) Do the claims connect to human rights, other legal entitlements or bona fide reasonable interests? (c) Do the claims fall within the scope of the right when defined in context?

Step 3: Do the claims amount to more than minimal interference with rights?

STAGE TWO: Reconciling competing rights claims

Step 4: Is there a solution that allows enjoyment of each right?

Step 5: If not, is there a “next best” solution?

STAGE THREE: Making decisions

- Decisions must be consistent with human rights and other laws, court decisions, human rights principles and have regard for Ontario Human Rights Commission policy

- At least one claim must fall under the Ontario Human Rights Code to be actionable at the Human Rights Tribunal of Ontario

It is important to note that the Commission’s policy is not “law”, but rather is the Commission’s recommended approach.  The Commission does not have the legal authority to require employers to follow the policy.  In any event, employers should take proactive steps to address competing rights by being familiar with caselaw and considering the Commission’s policy.  A full copy of the Commission’s policy can be found at the following link:

http://www.ohrc.on.ca/sites/default/files/policy%20on%20competing%20human%20rights_accessible_2.pdf

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Ontario Human Rights Commission’s “Policy On Competing Human Rights”

Ontario Human Rights Commission Releases Report on Mental Health and Addiction Consultation

The Ontario Human Rights Commission has released its report entitled Minds that matter: Report on the consultation on human rights, mental health and addictions

Minds that Matter reports the findings from the OHRC’s province-wide consultation on the human rights issues experienced by people with mental health disabilities or addictions, summarizing the insights gleaned from more than 1,500 individuals and organizations across Ontario that it surveyed.  The report also sets out recommended actions for government, housing providers, employers, service providers and other parties, as well as a series of OHRC commitments towards eliminating discrimination based on mental health and addictions in Ontario.

 Employers will be most interested in chapter 12, “Employment”, which sets out a number of experiences from individuals with mental health or addiction issues.  In brief, many individuals with mental health and addiction issues expressed concerns that they continue to experience discrimination in the employment hiring process and discrimination and harassment in the workplace in the course of employment.  Some of the specific experiences noted included the following:

  •  Gaps in employment history due to periods of disability may be hard to explain during the employment process and may create a barrier to being hired.
  •  Systemic barriers to employment were created by having non-criminal contact with police relating to mental health or addiction issues recorded and disclosed as part of a police record check.
  •  The rules around workplace violence risk assessments and the disclosure of personal information about employees under the Bill 168 amendments to the Ontario Occupational Health and Safety Act may negatively affect people with psychosocial disabilities if they are applied improperly, especially if employees with past, present or perceived mental health issues are assumed incorrectly to be a danger to other workers.

 In response to these experiences and others, the OHRC made the following recommendations to employers:

  •  All employers should develop human rights policies and procedures outlining their organization’s obligations under the Human Rights Code, including the duty to accommodate people with psychosocial disabilities to the point of undue hardship.
  •  Employers should ensure their human rights policies identify that people with mental health issues and addictions are protected under the ground of disability, and eliminate systemic barriers in the workplace (such as in their organizational culture) that may exclude or disadvantage people with mental health issues and addictions.
  •  All employers should train their employees and managers on their responsibilities under the Code regarding the human rights issues that affect people with mental health disabilities and addictions. This training should address preventing and responding to discrimination and harassment, systemic issues affecting people with psychosocial disabilities and the duty to accommodate. 

 The OHRC committed to discuss with the Ministry of Labour the impact of disclosure requirements under the OHSA on people with mental health issues, and consider how this issue could be monitored and addressed.

To read the report in its entirety, please see http://www.ohrc.on.ca/en/minds-matter-report-consultation-human-rights-mental-health-and-addictions

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Ontario Human Rights Commission Releases Report on Mental Health and Addiction Consultation

Balancing Rights of Privacy with Accommodation of Invisible Disabilities: Employers Have Rights and Employees Have Obligations Too

An employer’s duty to accommodate employees with disabilities to the point of undue hardship is well known and particularly challenging when it comes to accommodating employees with invisible disabilities, such as mental illness. What has been less thoroughly canvassed are the obligations of employees seeking accommodation, particularly when it comes to the disclosure of medical information that would otherwise be private. A recent arbitration board decision: Complex Services Inc. (c.o.b. as Casino Niagara and Niagara Fallsview Casino Resort) v. Ontario Public Service Employees Union, Local 278, 2012 CanLII 8645 thoroughly and thoughtfully considers these very thorny issues and how they must be balanced.

At issue in the case were two competing grievances: a union grievance alleging discrimination and harassment in the accommodation process including the employer’s imposition of an unpaid medical leave of absence and an employer grievance alleging failure on the part of the grievor to provide medical evidence to support her accommodation demands. The grievor, a security associate, claimed two disabilities: one physical with respect to which the employer had implemented accommodation requirements and one mental that was the source of the dispute. The grievor advised the employer of the accommodation she required for her mental illness (which included certain shift times and days worked and “to only deal with one matter at a time” with respect to certain managers only and with union representation present), but, in no uncertain terms, refused to provide medical documentation in support for confidential medical privacy reasons.

In a unanimous decision, the chair of the arbitration panel, George Surdykowski, succinctly sets out each party’s respective rights and obligations in the accommodation process. His findings include the following:

  • “In the purely technical sense of the term, an employee has an ‘absolute’ right to keep her confidential medical information private. But if she exercises that right in a way that thwarts the employer’s exercise of its legitimate rights or obligations, or makes it impossible for the employer to provide appropriate necessary accommodation, there are likely to be consequences, because an employee has no right to sick leave benefits or accommodation unless she provides sufficient reliable evidence to establish that she is entitled to benefits, or that she has a disability that actually requires accommodation and the accommodation required. Although an employer cannot discipline an employee for refusing to disclose confidential medical information, the employee may be denied sick benefits, or it may be appropriate for the employer to refuse to allow the employee to continue or return to work until necessary such information is provided.” [para. 86]
  • “The Human Rights Commission’s Policy indicates the employee has an obligation to ask for accommodation and to provide sufficient information, including necessary otherwise private confidential medical information, to establish the accommodation required, and to participate in and facilitate both the search for and implementation of accommodation – whether or not the accommodation available is ‘perfect’ from the grievor’s subjective perspective. The employer has a legitimate need for sufficient information to permit it to satisfy its accommodation obligations. An employee can neither expect accommodation if she withholds the information to establish that she requires it, nor dictate the accommodation required.” [para. 88]
  • “Accommodation is a matter of equal treatment required by the Code. It is not intended to be, and no employee is entitled to, a superior working arrangement merely because that is what she wants or thinks is best.” [para. 89]
  • “The cases demonstrate that the following otherwise confidential medical information will generally be required for accommodation purposes:

1. The nature of the illness and how it manifests as a disability (which may include diagnosis, particularly in cases of mental illness).

2. Whether the disability (if not the illness) is permanent or temporary, and the prognosis in that respect (i.e. the extent to which improvement is anticipated, and the time frame for same).

3. The restrictions or limitations that flow from the disability (i.e. a detailed synopsis of what the employee can and cannot do in relation to the duties and responsibilities of her normal job duties, and possible alternative duties).

4. The basis for the medical conclusions (i.e. nature of illness and disability, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes in that respect).

5. The treatment, including medication (and possible side effects) which may impact on the employee’s ability to perform her job, or interact with management, other employees, or customers.” [para. 95]

  • “It is cases of invisible disability, particularly mental illness, that questions most often arise about an individual’s request for particular accommodation and the adequacy of supporting information. The employer is entitled to seek confirmation or additional information from an appropriate medical health professional to obtain further information if there is a reasonable and bona fide basis for doing so. … Although an [Independent Medical Examination] is a resource of last resort, there are cases in which one is necessary and appropriate. An employee who exercises her right to refuse the incontestably intrusive IME when one is objective justified may find herself unable to continue or return to the work.” [para. 118]

The decision is a balanced consideration of what is required to make the accommodation process succeed in cases of invisible disabilities. To the extent that it thoroughly outlines both the employer and the employee’s role in this process, it provides welcome guidance for employers.

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Balancing Rights of Privacy with Accommodation of Invisible Disabilities: Employers Have Rights and Employees Have Obligations Too

Wither ‘Big Brother’? B.C. Privacy Commissioner Reins-in Government of British Columbia Criminal Record Checks

In keeping with her stance on overly-invasive employee background checks, British Columbia’s Information and Privacy Commissioner, Elizabeth Denham, has issued her findings and recommendations with respect to the B.C. Government’s policies, as an employer, for employee criminal record checks.

Finding that the government’s polices resulted in the unnecessary or overbroad collection of personal information, the Commissioner issued a number of recommendations aimed at limiting the amount of data collected by the provincial government, as well as the instances in which collection would be justified. The report also contains 16 recommendations for “Best Practices for Public Sector Record Checks”.

A “Best Practices” for private sector employers will be released at a later date.

The Privacy Commissioner’s July 25, 2012 Report can be accessed at: http://www.oipc.bc.ca/orders/investigation_reports/InvestigationReportF12-03.pdf

The Privacy Commissioner’s guidelines on social media background checks can be accessed at:

http://www.oipc.bc.ca/pdfs/private/guidelines-socialmediabackgroundchecks.pdf

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Wither ‘Big Brother’? B.C. Privacy Commissioner Reins-in Government of British Columbia Criminal Record Checks

Hip Replacement Surgery and Recovery Time Were Factors in Termination, Ontario Human Rights Tribunal Rules

Employers should proceed cautiously in terminating the employment of an employee that they know will be imminently undergoing a  major medical procedure and requiring time off work.  Even if the medical procedure and time off are not the primary reasons for the termination, they may be found to be  factors in the termination.

Timothy Pritchard began employment with the Commissionaires Great Lakes (the “Commissionaires”) on March 10, 2008 as a Director of Professional Services. 

Pritchard was diagnosed with severe arthritis. On May 6, 2010, he informed his employer that he would be having hip replacement surgery on June 16, 2012 and that he would require eight to twelve weeks off work to recover.  Pritchard proposed that his time off be funded by 23 days of accumulated sick time, two weeks of accumulated vacation, and an advance on his annual vacation time. 

On June 7, 2010, Pritchard was asked by a member of the Commissionaires’ executive team to review a copy of his offer of employment. When Pritchard asked if his employment was being terminated, he was advised that it was not, but that his role was being reviewed at the next executive meeting. 

On June 9, 2010, the Commissionaires advised Pritchard that his employment was being terminated effective immediately.  As the Chief Executive Officer was away at that time, Pritchard did not receive a termination letter until June 22, 2010.  In accordance with the terms of Pritchard’s offer letter, the Commissionaires provided him with three months’ salary in lieu of notice.  Pritchard was not, however, paid out any sick days as, according to the Commissionaires’ policy, sick days have “no monetary value” after the end of employment.  Several months later, on September 28, 2010, the Commissionaires posted for a “Manager, Sale of Training” position, which was similar to Pritchard’s position. 

Pritchard brought a human rights application claiming discrimination on the basis of disability in the termination of his employment. 

At the hearing, Pritchard questioned the timing of his termination, asserting that his direct manager and everyone around him knew his surgery was coming.  Witnesses for the Commissionaires testified that when business declined, the Commissionaires needed to reduce overhead in the London region, where Pritchard was employed.  The Commissionaires admitted that they were aware of Pritchard’s hip replacement surgery and his need for time off, but denied that it was a factor in their decision to terminate his employment.  Finally, the Commissionaires noted that the new position posted in September 2010 was for Toronto, not the London area.

Vice Chair  Brian Eyofson of the Ontario Human Rights Tribunal held that Pritchard’s medical condition, severe arthritis requiring a hip replacement and absence from work for approximately 2.5 months, constituted a disability under the Human Rights Code.  The Tribunal also found that Pritchard’s pending disability-related absence from work was a factor in the termination of his employment: the termination of Pritchard’s employment occurred with considerable haste, five business days before his scheduled hip replacement surgery.  The Commissionaires were aware of the timing of Pritchard’s surgery and the time off he required.  Moreover, while the Commissionaires paid Pritchard three months of salary upon termination in accordance with his offer letter, by terminating Pritchard’s employment when it did, the Commissionaires avoided paying him the over four weeks of accumulated sick days that he would have received had he remained employed.

As Pritchard reemployed following the Labour Day weekend, the Tribunal ordered the Commissionaires to pay Pritchard the difference between his salary at the Commissionaires and his new salary  from the date upon which he reemployed until the date that this new employment ended in January 2011.  The Tribunal also awarded Pritchard $10,000 for injury to dignity, feelings, and self-respect, citing the embarrassment Pritchard experienced when his employment was terminated, the stress of losing employment five days before hip replacement surgery, and the impact on his recovery from surgery of having to look for new employment.

Pritchard v. Commissionnaires Great Lakes et al., 2012 HRTO 1466 (CanLII).

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Hip Replacement Surgery and Recovery Time Were Factors in Termination, Ontario Human Rights Tribunal Rules

The Sweet Smell of Human Rights: Tribunal finds Employee Not Discriminated Against Due to Scent Sensitivities

The Human Rights Tribunal of Ontario has ruled that an employee with a hypersensitivity to certain scents did not experience discrimination in employment as a result of her employer’s inability to snuff out all smells in the workplace.

Susan Kovios has a scent and fragrance sensitivity. By all accounts it is severe. On January 14th, 2010, Kovios commenced employment with call center operator, Inteleservices Canada Inc. On January 18th, Kovios left Inteleservices’ office for good after experiencing severe reactions to the perfumes and colognes worn by her colleagues. In the human rights application that followed, Kovios alleged that Inteleservices had failed to accommodate her disability by failing to enforce its fragrance-free policy.

While it was unclear from the medical evidence whether Kovios’ scent sensitivity constituted a disability under the Human Rights Code, noting that Inteleservices was prepared to treat it as such, the Tribunal proceeded on the assumption that Kovios did in fact have a disability within the meaning of the Code. That said, given Kovios’ hypersensitivity, the Tribunal held that a more rigid enforcement of Inteleservices’ fragrance-free policy would have made little difference in the circumstances. In the Tribunal’s view, Kovios ”…required not only an environment free of noticeable scents, but an environment free of scents that were not detectable to others but affected her because of her ‘hypersensitivity.’”

In any event, apart from the strict enforcement of its fragrance-free policy, Kovios never explained to Inteleservices what accommodation she was seeking. As a result, the issue of whether Inteleservices had met its duty to accommodate was never engaged. On that basis, the Tribunal determined that Kovios had not been discriminated against. 

Kovios v. Inteleservices Canada Inc., 2012 HRTO 1570.

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The Sweet Smell of Human Rights: Tribunal finds Employee Not Discriminated Against Due to Scent Sensitivities

Human Rights Tribunal Has No Jurisdiction to Hear Equity Partner’s Human Rights Complaint in British Columbia

 The British Columbia Court of Appeal has unanimously held that the British Columbia Human Rights Tribunal did not have jurisdiction under the BC Human Rights Code to hear an age discrimination complaint filed by a lawyer against a national law firm – a limited liability partnership – in which he was an equity partner.

As part of the law firm’s partnership agreement, there was a mandatory retirement age of 65. The partner filed a human rights complaint on the basis that he was discriminated against by the partnership on the basis of age. The Court of Appeal rejected the argument that a partner could be “employed” for the purposes of the BC Human Rights Code and found that there was no “employment” relationship between the law firm and its partner.  As such, the partner could not advance a human rights complaint that he was discriminated against in “employment”.

The Court of Appeal set aside the decision of the Human Rights Tribunal and the BC Supreme Court, both of which had held that the partner was employed, for the purposes of the BC Human Rights Code, and thus was entitled to advance the age discrimination complaint.

A copy of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/CA/12/03/2012BCCA0313.htm

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Human Rights Tribunal Has No Jurisdiction to Hear Equity Partner’s Human Rights Complaint in British Columbia

Ontario Human Rights Code to protect transgendered individuals

Ontario’s Human Rights Code, which is celebrating its 50th anniversary on June 15th, is being amended to protect transgendered people after a landmark vote in the Ontario legislature yesterday.  The amendment will prohibit discrimination in employment and other areas, on the basis of gender identity and gender expression.

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Ontario Human Rights Code to protect transgendered individuals

Un mot de passe Facebook ne constitue pas un outil de vérification approprié, prévient la Commission ontarienne des droits de la personne

Au cours des dernières semaines, plusieurs postulants à des emplois aux États-Unis ont déclaré s’être fait demander leur mot de passe Facebook par des employeurs qui souhaitaient obtenir des renseignements personnels sur eux. Peu après, les médias regorgeaient de récits où des employeurs auraient demandé à des candidats d’ouvrir leur page de profil Facebook ou autre sur un ordinateur se trouvant dans la salle d’entrevue ou alors où des gestionnaires auraient exigé que le postulant devienne leur ami sur Facebook durant le processus d’entrevue.

Assurément, de telles tactiques visant à obtenir des renseignements personnels sur les candidats à partir de réseaux sociaux sont beaucoup moins fréquentes de ce côté-ci de la frontière. Le Toronto Star a néanmoins rapporté qu’un candidat à un poste de policier dans la région de Toronto s’était fait demander durant une entrevue de fournir son nom d’utilisateur et son mot de passe Facebook. Dans la foulée de la publication de l’article, la Commission ontarienne des droits de la personne s’est penchée sur la question à savoir si cette pratique d’embauche est acceptable.

En gros, selon la Commission, la réponse est « non ». La raison : cela pourrait contrevenir au Code des droits de la personne de l’Ontario. Voici un extrait du texte que la Commission a affiché sur sa page Facebook :

« Un profil sur Facebook pourrait contenir des renseignements directs ou indirects sur l’un des motifs interdits par le Code ou sur tous ces motifs : la race, la couleur, l’ascendance, la croyance (religion), le lieu d’origine, l’origine ethnique, la citoyenneté, le sexe (y compris la grossesse, l’identité sexuelle), l’orientation sexuelle, l’âge, l’état matrimonial (y compris le partenariat de même sexe), l’état familial, le handicap et l’état d’assisté social. Ces renseignements peuvent être publiés sous forme de texte ou être déduits de photos.

…les employeurs ne devraient pas demander aux candidats à un emploi l’accès à de l’information stockée dans un média social ou sur un site en ligne. Si un employeur le fait, il prend le risque de faire l’objet d’une requête pour discrimination en vertu du Code. »

La Commission a en outre conseillé aux chercheurs d’emploi de faire preuve de discernement lorsqu’ils mettent de l’information en ligne sur un forum public. Si l’employeur est en mesure de voir les renseignements sans avoir à demander au candidat la permission d’y accéder, ceux-ci pourraient être utilisés à des fins discriminatoires.

La présence d’une personne sur les réseaux sociaux peut donner un aperçu de sa personnalité, mais elle peut aussi dévoiler de l’information (p. ex. état matrimonial ou croyances religieuses) qui normalement demeurerait inconnue de l’employeur, ce qui dans certains cas pourrait inciter des candidats à prétendre être victimes de discrimination de la part de l’employeur potentiel.

Références : http://www.thestar.com/business/article/1148973–would-you-reveal-your-facebook-password-for-a-job (article en anglais)

http://www.facebook.com/the.ohrc (page Facebook de la Commission)

Site Web de la Commission ontarienne des droits de la personne

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Un mot de passe Facebook ne constitue pas un outil de vérification approprié, prévient la Commission ontarienne des droits de la personne