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The discriminating implications of uninformed assumptions

Ontario call centre worries about blood-borne pathogens with insulin testing
employment law
An arbitrator found there was no evidence diabetes self-care kits presented any risk of transferring blood-borne pathogens or otherwise to other employees in the workplace. Shutterstock

By Jeffrey R. Smith

You may have heard the colloquial definition of “assume” – to make an “ass” out of “u” and “me.” For employers, an assumption can also raise a legal mess of discrimination when it comes to protected characteristics of employees.

Discrimination doesn’t always come from malicious intent. Sometimes, it’s an uninformed or hasty decision that’s made without proper consideration that can create an unfair disadvantage to someone because of a personal characteristic over which the individual has no control.

The default response to a lack of information too often is fear – fear of the unknown, fear of imagined consequences or scenarios, or fear of incorrect knowledge. It’s a fear that has led to ostracizing people for no good reason or denying people something to which they might be otherwise entitled.

It’s not fair to the individuals who are on the receiving end of this treatment, but it can also get employers in legal trouble if they act in a discriminating way without any real basis for it.

Human rights legislation across Canada prohibits employers from taking action with respect to someone’s employment directly or in part because of any characteristics of that person that falls within certain protected grounds – for example, the grounds in the Canadian Human Right Act are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, and conviction for an offence for which a pardon has been granted or a record suspension has been ordered – unless there is a legitimate reason for which the discrimination is necessary, such as a particular job requirement that the characteristic prevents the employee from performing and the employer can’t accommodate.

It may be that in certain circumstances, the employer has a legitimate concern about an employee’s characteristic that necessitates discrimination. However, that concern can’t just be an assumption – there have to be hard facts supporting the argument in favour of discrimination against the employee.

If an employer worries about the safety of its employees and its workplace due to an employee’s medical condition, it had better know for sure that there is a safety risk.

This very situation happened to an Ontario call centre recently. The call centre featured an open-concept workplace where all employees worked at whatever workstations were available, rather than having their own workstations.

One employee had diabetes, so he had to test his blood glucose level and inject insulin during the course of his workday. At first, the call centre was fine with it, until a union steward raised a concern that it may not be safe for the employee to be drawing blood and using needles in an open workspace with others around.

The call centre was worried about other employees being exposed to blood-borne pathogens and biohazardous testing kits, so it told the employee to test his blood and inject his insulin in an empty office away from the main working area.

The employee filed a discrimination complaint, saying he felt alienated and that his disability was “unwelcome” for his co-workers. Having to leave his workstation to perform his self-care also unfairly disrupted his work, the employee said.

Unfortunately for the call centre, it didn’t do its homework on whether there was an actual safety risk. Of course, it had to address the concern brought to its attention by the union steward, but instead of finding out if there was a risk, it assumed the employee’s self-care presented a risk to his co-workers.

However, an arbitrator found there was no evidence the self-care kits the employee used presented any risk of transferring blood-borne pathogens or otherwise to other employees in the workplace. The belief that there was a danger was the result of an uninformed assumption that created fear over what some people didn’t understand – fear that stigmatized the employee because of his medical condition and took him away from his work for a procedure that only took a few minutes to do.

The call center was ordered to stop the discriminatory requirement for the employee to go to an office to perform his diabetes self-care and to pay the employee $1,000 in damages for injury to his dignity: See IBEW, Local 636 and Tyco Integrated Fire and Security Canada Inc. (Busbridge), Re, 295 L.A.C. (4th) 75 (Ont. Arb.).

It’s important for employers to be aware of concerns in the workplace dealing with issues such as health and safety. But they also have to foster an inclusive environment that doesn’t exclude or create a disadvantage to some employees if it’s not necessary. An uninformed assumption can be just as bad as a malicious act of discrimination.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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