Please note: This policy statement reflects the Newfoundland and Labrador Human Rights Commission’s interpretation of the provisions of the Newfoundland and Labrador Human Rights Act, 2010 (“the Act”) relating to Special Programs. It is subject to decisions by Boards of Inquiry and the courts and should be read in conjunction with those decisions and with the specific language of the Act. If there is any conflict between these guidelines and the Act, the Act prevails. Any questions regarding these guidelines should be directed to the Commission’s staff. Additionally this policy should not be substituted for legal advice.
What is Discrimination in Employment?
Discrimination is prohibited in every aspect of employment including: advertising; applications; interviews; hiring; wages; benefits; conditions of employment; promotion; and dismissal. Employers are also prohibited from discriminating against employees/potential employees because of:
- a criminal conviction unrelated to the employment, or
- the fact that an individual’s wages are being/have been subject to attachment/garnishment, etc.
Discrimination is a distinction or differential treatment of an individual on the basis of a prohibited ground, whether or not the differential treatment is intentional.
Discrimination is prohibited on grounds of:
- race
- colour
- nationality
- ethnic origin
- social origin
- religious creed
- religion
- age
- disability/perceived disability
- disfigurement
- sex (which includes pregnancy)
- sexual orientation
- marital status
- family status
- gender expression and/or gender identity
- source of income
- political opinion
What does “duty to accommodate” mean?
Employers are required to accommodate (i.e. support) employees who have special requirements based on any of the grounds listed in the Act. This means eliminating or changing rules, policies, practices and behaviors that have a discriminatory effect on persons as a result of their differences or needs that are related to protected areas under the Act. Employers have a duty to accommodate employees to the point of undue hardship.
What is undue hardship?
Undue hardship describes the point beyond which employers are not expected to accommodate. What constitutes undue hardship will depend on a number of factors, and is fact-specific to every situation. It generally means that an employer must exhaust all reasonable means to try to accommodate an employee with special needs. Undue hardship is usually reached at the point at which an employer cannot sustain the financial or efficiency costs of the accommodation and will be different for every employer depending upon its specific circumstances.
What is the employee’s duty to ask for accommodation?
It is the responsibility of the employee to communicate their need for accommodation to their employer. An employee cannot assume that an employer knows about their needs/limitations. However, if an employer does suspect that an employee needs accommodation (i.e. the employer sees the employee struggling, etc), the employer has a positive duty to raise the issue with the employee, and to try to address any special needs, even if the employee has not requested accommodation. It is the employer’s duty to investigate the proper types of accommodations to meet the employee’s needs/limitations.
Do employees have to tell their employers about why they require accommodation?
An employee must provide to their employer sufficient information to support the request for accommodation, but this does not necessarily mean that an employee must disclose everything about their condition/reason for requiring accommodation. The focus should be on the functional limitations of the employee in relation to specific job duties, rather than on the medical or other condition itself.
Doesn’t accommodation amount to special treatment for some employees? Why is that fair?
Equal treatment does not always mean identical treatment. In order to achieve equal access to employment, some employees may require different treatment, but this doesn’t mean that these employees are receiving “special treatment”. Rather, the duty to accommodate is intended to remove barriers to full participation in the workplace. Employees who are concerned about a co-worker’s “special treatment” in the workplace may be referred to the employer’s accommodation policy, if applicable, or an employer, supervisor or union representative may discuss the employer’s legal duty to accommodate to the point of undue hardship with those concerned.
What is a good faith occupational requirement?
The Human Rights Act, 2010 prohibition against discrimination will not apply if the employer can show that the limitation, specification, or preference that is alleged to be discriminatory is a good faith occupational requirement.
A good faith occupational requirement (“GFOR”), also referred to as a “bona fide occupational requirement,” is a work-related requirement that is integral to carrying out the duties of a specific position. When an employer can establish that a standard or requirement is a GFOR, the employer will not be expected to change it to accommodate an employee. However, in the interests of being as inclusive as possible, an employer should still explore whether some other form of accommodation is possible.
For example:
Not hiring a woman for a labour job simply because she is female IS discrimination.
Not hiring an individual who is blind to be a pilot IS NOT discrimination, since having good vision is a good faith occupational requirement for a pilot.
Equal Pay for Equal Work
Employers must pay equal wages and give equal opportunities to all employees who are performing the same or similar work. It is acceptable (i.e. not prohibited by the Act) to pay employees different wages where payment is increased based on a merit or seniority system.
Harassment
Harassment under the Human Rights Act, 2010 is a course of vexatious (upsetting) comments, or conduct that is known or ought to reasonably be known to be unwelcome. Individuals cannot harass others in places of employment on the basis a ground of discrimination as described above.
Sexual harassment is also prohibited. The Act prohibits a person who is in a position to confer a benefit upon another from engaging in sexual solicitations or advances that the person knew or ought reasonably to have known would be unwelcome.
Employer Liability for Harassment in the Workplace
Employers, because they have the authority to prevent or discourage harassment in the workplace, may be held liable if one of their employees is harassing another and the employer does not take steps to stop the harassment. Employers should take steps to ensure that employees know about the provisions in the Human Rights Act, 2010 and should investigate and address all claims of harassment in the workplace.
Protection of Complainants from Retaliation
Employers may not discriminate or retaliate against a person because he or she has filed a complaint with the Human Rights Commission or has given evidence or helped with the initiation or prosecution of a complaint under the Human Rights Act, 2010.
Drug Testing
Are employers allowed to insist employees take random drug tests?
Yes, but only if the employer can establish the drug testing as a good faith occupational requirement, or for post-incident assessment. For example, trucking companies may be able to successfully argue that random drug testing for drivers may be a good faith job requirement. However, it would be difficult for a restaurant operator to insist that it is a good faith occupational requirement for waiters to be tested for drugs. Random drug testing is a complex legal issue, and we encourage employers to seek legal advice before instituting any type of drug testing.
NOTE: The Human Rights Commission is always pleased to give presentations on these and other issues for any interested organizations, groups, and individuals. If you would like to discuss scheduling a presentation, please contact the Human Rights Commission.