Workplace discrimination prohibited — and that includes training

Refusing training on a prohibited ground could lead to a human rights complaint

A decision not to provide training for an employee, even when the employer believes it has a bona fide reason, could draw the employer into a human rights contest.

While not discriminating against an employee appears to be such a simple and obvious thing to do, some employers fail to grasp this concept. Two cases highlight how some employers have tried to rely on having what they believed was a bona fide reason in not providing training to employees.

Green v. Canada (Public Service Commission) was an application by the Attorney General of Canada for judicial review of a decision by the Canadian Human Rights Tribunal that both the Treasury Board and Public Service Commission discriminated against Green.

Nancy Green was a member of the Public Service of Canada who was denied entry into its full-time French language training program. She was denied because testing and evaluation revealed she had a learning disability (dyslexia) in auditory processing.

Because Green had failed to gain entry into the training program, she was not appointed to the bilingual non-imperative position of manager (a job classification in the public service) and was instead placed in a consulting role.

The tribunal concluded that “the almost exclusive use of auditory discrimination testing to determine aptitude to learn another language inadvertently created a discriminatory practice” and found Green would have received a positive prognosis if the testing process had not been discriminatory.

The tribunal ordered systematic discrimination remedies including Green’s immediate appointment to the position of manager and a lump-sum for lost wages and pension. It also ordered $5,000 for special compensation interest and legal costs.

The Federal Court of Canada upheld the tribunal’s finding that legal justification based on a bona fide occupational requirement was immaterial in a case of adverse effect discrimination because of the consequences to the particular group, in this case Green.

The court further found there was evidence from experts upon which the tribunal could find discrimination and that access to the language training program should not have been closed to Green on the basis of a learning disability where further testing showed she could learn a second language subject to adaptations to learning methods.

In Vancouver Rape Relief Society v. Nixon, Kimberley Nixon was a transsexual. She was born a man, but had a sex-change operation, something which was noted on her birth certificate. The society was a non-profit rape victim’s counselling service for women.

Nixon was initially accepted as a volunteer but, when the society learned of her previous life as a male, she was told she could no longer participate in its training program because “men were not allowed in the training group.”

It restricted its volunteer counsellors to those who had been women from birth, based on its belief that clients would not accept males or transsexuals as confidants.

Nixon filed a complaint of discrimination under British Columbia’s Human Rights Code. The Human Rights Tribunal ultimately ruled the respondent had discriminated against the appellant by denying her a service and employment on the basis of her sex and awarded her $7,500 in damages.

The society applied for a judicial review, and the reviewing judge quashed the tribunal’s decision and set aside the award for damages. In his view, the exclusion of Nixon from the volunteer training was not discriminatory. He found that sex is a continuum, and the community of women served by the society is at the “far female end.” Nixon, as a transsexual, was not included in that community.

This case is currently on appeal to the British Columbia Court of Appeal and ultimately it will make a decision as to whether or not the society discriminated against Nixon.

While both of these cases raise some controversial issues, both demonstrate the pitfalls employers will befall even when it comes to an issue as simple as training.

Fortunately, through its jurisprudence, the Supreme Court of Canada has developed a unified approach which requires employers setting workplace rules to accommodate affected employees as much as reasonably possible. But at the same time it permits employers to maintain discriminatory rules which are reasonably necessary to achieve legitimate work-related objectives.

For an employer to justify a discriminatory workplace rule or standard, it must meet a three-step test:

•the policy’s objectives must be legitimate and rationally connected to the performance of the job;

•the employer must have adopted the policy in an honest and good-faith belief; and

•it must be impossible to accommodate individual employees without imposing undue hardship on the employer.

If an employer believes it has a good reason for a discriminatory workplace rule or standard, it must run it through this test, keeping in mind that the standard of “undue hardship” has been set very high. If not, the employer could find itself at the heart of a human rights battle where no one really wins.

For more information see:

Green v. Canada (Public Service Commission) [2000] F.C.J. No. 778

Nixon v. Vancouver Rape Relief Society, 2003 CarswellBC 3140, 2003 BCSC 1936, (sub nom. Vancouver Rape Relief Society v. Nixon) 2004 C.L.L.C. 230-018, 22 B.C.L.R. (4th) 254 (B.C. S.C.)

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected]. Look for her next column in the Dec. 6 Guide to Recruitment and Staffing.

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