Unfair access to opportunities could be discrimination
Question: We have performance benchmarks for merit salary increases, but some employees with disabilities may not be able to achieve those benchmarks because of their limitations. Is there a risk of discrimination if they have the same base salary and basic raises but little chance of getting the performance-based raises?
Answer: If an employer has performance benchmarks for merit salary increases, then there is a risk of discrimination against an employee who may not be able to achieve those objectives, particularly if merit is based on seniority or hours worked. It should be noted that the law in this area is unsettled.
Depending on the contract or collective agreement in place, seniority accrual is generally based on an employee’s time in active service or actual hours worked. It is regarded as an objective and fair system for determining pay increases, job opportunities and recall to work. It follows, then, that if an individual is unable to work or is absent, she will be unable to accrue the hours towards seniority and the benefits which flow from that achievement.
When the absence from the workplace is due to a prohibited ground of discrimination under human rights legislation — typically including but not limited to religion, age, sex, sexual orientation, marital status and disability — it raises the question as to whether an agreement which allows for merit based benchmarks to achieve seniority or fiscal reward is discriminatory.
However, there is an important distinction to be drawn here, based on whether we are looking at situations of “competitive seniority” or “benefit seniority.” Seniority in a competitive sense occurs when two or more employees compete for a limited number of jobs, in the context of a promotion, layoff or recall, and preference is accorded based on length of service. In these settings, seniority determines who holds which particular job, who is employed at all or possibly both. In other words, competitive seniority can be a prime determinate of a person's participation in the workplace. In contrast, benefit seniority determines a person's level of entitlement with respect to paid vacations or some other element of compensation.
The prevailing Canadian jurisprudence currently holds that it is not discriminatory for an employer to apply requirements that an employee must have active service in order to qualify for certain types of remuneration and benefits, as long as it is applied consistently to all employees. A number of cases have found there is no discrimination in the application of an active service standard for entitlement to benefits, participation in a pension or RRSP plan and vacation pay.
However, the issue of competing seniority rights was addressed by the Saskatchewan Court of Appeal, which affirmed the Queen's Bench decision and a tribunal decision in Regina (City) v. Kivela. This case involved the impact of the duty to accommodate on seniority in the case of an employee who suffered from a disability. The Human Rights Tribunal ruled that the seniority provisions in the collective agreement (an hours-based seniority system) discriminated against the employee on the basis of disability. Because he could not work extended hours that required physical exertion, the employee continually fell behind on the seniority list, which effectively made it impossible for him to ever accrue enough seniority to obtain a permanent position through competition. The tribunal also held that there was no evidence that granting the employee additional seniority credits or changing the system would have caused undue hardship. The employee’s inability to accrue seniority affected his ability to participate in the workplace.
The primary principle emanating from this discussion is that accommodation is about participation, not compensation. For example, it is flawed to argue that reasonable accommodation requires the employer to allow an employee to work part-time, while providing her with the compensation she would receive if she was working full-time. The duty to accommodate does not extend so far as to oblige an employer to provide better salary and benefits to a disabled employee than to non-disabled employees working the same number of hours. However, the employer may be obligated to ensure its system allows a disabled employee to accrue the appropriate seniority to be able to actively “compete” in the workplace. See Regina (City) v. Kivela, 2006 CarswellSask 162 (Sask. C.A.).
