FTR Quarterly

FTR Quarterly – Issue 6

FTR Quarterly

FTR Quarterly – Issue 6

Date: June 28, 2017

In This Issue

Featured Articles

Gender Identity and Gender Expression: Best Practices for Employers and Service Providers

By: Hicks Morley

The federal government recently amended the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination. The increased focus on issues of gender identity and gender expression at all levels of government has brought greater awareness of a person’s right to be accommodated, and of the importance of ensuring employers/service providers create an atmosphere conducive to the promotion and productivity of – and delivery of service to – all persons, regardless of gender identity and gender expression.

Legislative Background

Gender expression and gender identity have been protected in Ontario under the Human Rights Code (Code) since 2012, when all three parties of the Ontario Legislature co-sponsored Toby’s Act. This legislation added gender identity and gender expression as prohibited grounds of discrimination under the Code. Currently, almost every province and territory has amended their human rights legislation to provide gender identity and gender expression protections. Manitoba, Saskatchewan and the Northwest Territories have only added gender identity, while the Yukon has yet to add either term.

Recent Legislative and Policy Initiatives

In early 2016, the Ontario Human Rights Commission released its Policy position on sexualized and gender-specific dress codes, which led to significant discussion across Ontario on the utilization and legitimacy of gender-specific dress codes, the role of the protections of gender expression and the effect of gender-specific dress codes on staff and patrons of restaurants.

In March 2017, the Ontario Human Rights Commission published Not on the Menu, its Inquiry Report on sexualized and gender-based dress codes in restaurants. In the Inquiry Report, the Commission notes that throughout 2016, it worked with the Ontario Municipal Human Resources Association (OMHRA) and many large restaurant/hospitality chains to discuss and address gender-based dress codes. The Inquiry Report indicates that the reaction to its Policy was largely positive and many large chains implemented the changes identified by it in a move to create more gender inclusive workplaces.

Best Practices for Employers and Service Providers

With greater societal awareness of gender identity and expression issues, and changes to human rights legislation, we encourage employers and service providers to adopt the following best practices in supporting trans employees, students, customers and those individuals accessing services:

  1. Revise policies: Review your organization’s discrimination and harassment policies to ensure they include “gender identity” and “gender expression” as protected grounds.
  2. Review Human Resources forms and documents: Gender identifiers on application forms, benefits enrolment forms, communications forms, including employee work records, identification cards, email accounts and office directories, should be updated to ensure options are provided for employees, service recipients and job applicants who do not exclusively identify as either male or female (e.g. “X”), and gender identifiers should be eliminated where they are not required.
  3. Ensure compliance: Ensure managers, supervisors, coworkers and/or service providers comply with discrimination and harassment policies, and provide training. This may be particularly important when someone has transitioned or realigned their gender after becoming an employee or customer. While mistakes happen, condoning the intentional or careless misidentification of a trans person may constitute discrimination.
  4. Ask for input: As gender identity and expression are deeply personal and can change over time, it may be necessary and appropriate to ask people which pronouns they use, how they would like to be addressed, or what type of accommodation(s) they need.
  5. Use chosen names and pronouns: People’s preferred names and pronouns may not match their given names or assigned sex. While some people prefer the pronouns she/her or he/him, others opt for gender-neutral terms such as they/their or zhe/ze/hir. Chosen names and pronouns should be used in conversation and communications including employee work records, identification cards, email accounts and office directories.
  6. Take an intersectional approach: Gender identity and gender expression do not exist in a vacuum. When providing accommodations on this basis, consider whether other grounds under the Code might apply and may also require accommodation.
  7. Provide suitable accommodations: Allow employees, service recipients and customers who have realigned their gender to access corresponding gender-specific accommodations, such as restrooms and change rooms. In certain circumstances, it may be appropriate to offer gender non-specific, single-stall or single-occupant facilities.
  8. Review your dress code: Assess existing dress codes to determine whether they are gender-specific (e.g. require men and women to wear different uniforms). If you have a gender-specific dress code, consider whether it is reasonable and justified by workplace requirements. Keep in mind that employees and customers have the right to dress in conformance with their gender identity.
  9. Protect privacy: Review your document retention and access policies to ensure that the privacy of employees, service recipients, and customers who have realigned their gender is adequately protected.

FTRQ&A – Bill C-45, the Cannabis Act

With: Hicks Morley

As we previously reported, the federal government introduced Bill C-45, the Cannabis Act on April 13, 2017.

What changes will the legislation bring?

Once the Cannabis Act  comes into force, Canadians will be able to access marijuana for recreational use – not just for medicinal purposes. Amounts will be restricted (i.e. you can possess or share up to 30 grams, or cultivate up to four plants not exceeding one metre) and only those over the age of 18 may access non-medicinal marijuana. This age limit may be higher depending upon the province. Details regarding availability and access are still in the works.

Does this affect an employer’s existing duty to accommodate the use of medical marijuana?

No. The duty to accommodate will continue to apply when marijuana is used to treat an illness and/or injury falling under the definition of “disability” within the applicable provincial/federal human rights legislation. There is no obligation, however, to accommodate non-medical marijuana use.

When will the Cannabis Act come into force?

The Act is expected to come into force on or before July 1, 2018.

Our company is provincially-regulated – will the changes apply to us?

Yes. Provincial governments can adopt certain regulations under the Cannabis Act, but once the legislation passes, recreational marijuana use will be available across the country. Certain portions of the Criminal Code will also be amended to address impaired driving and related issues.

We already have to accommodate medicinal use of marijuana, what does the legislation bring to the mix – anything that we need to do differently?

Employers should review their workplace policies. Amendments may be required for policies strictly prohibiting the use of recreational marijuana. Marijuana will soon be treated much like alcohol – off-duty use is permissible, but on-duty impairment is not.

As always, employers should be vigilant regarding issues of impairment in the workplace to ensure the safety of their employees and others within the workplace.

We encourage employers to be proactive. Your Hicks Morley lawyer would be pleased to assist you in auditing your existing policies or updating them as necessary.

Quick Hit – Changing Workplaces Review: A Bill 148 Timeline

Date Developments
February 17, 2015 The Ontario government announces the launch of public consultations on the changing nature of the modern workplace.
May 14, 2015 The Ontario government formally commences the Changing Workplaces consultations first announced in February. Government-appointed Special Advisors – Mr. Justice John Murray and Mr. Michael Mitchell – are appointed to undertake the Changing Workplaces Review (Review) to consider the changing nature of the workplace, the causes behind those changes, and whether the Labour Relations Act, 1995 (LRA) and the Employment Standards Act, 2000 (ESA) need to be amended to meet challenges created by the changes. In particular, the Special Advisors are tasked with considering non-standard working relationships, the expanding service sector, globalization and trade liberalization, technological change and workplace diversity.
July 27, 2016 The Special Advisors release the Interim Report, a wide-ranging document over 300 pages in length. The Interim Report does not generally identify specific recommendations as a result of the Review. Rather, it serves several purposes:

  • identify the substantive areas of the LRA and ESA that are being considered as part of the Review
  • outline the current state of the law and employee entitlements in each of those areas, drawing on context from other jurisdictions within Canada, as well as differing approaches in foreign jurisdictions, including the United States, the European Union and Australia
  • summarize the submissions made to the Special Advisors, identifying areas where submissions may have been lacking
  • identify the key options for recommendations that the Special Advisors are considering
  • seek further input on those key options.

The Interim Report identifies potential changes to:

May 23, 2017 The Final Report is issued, containing:

May 30, 2017 The Ontario government announces a package of pending legislative measures in response to the release of the Final Report, including specific proposals relating to the ESA and LRA. While that response incorporates some of the recommendations of the Special Advisors, it also includes proposals that were not addressed in the Final Report or, in some cases, the Interim Report. It also introduces changes that were outside the mandate of the Special Advisors.
June 1, 2017 The Ontario government introduces Bill 148, the Fair Workplaces, Better Jobs Act, 2017. It contains:

Bill 148 passes first reading and is referred to the Standing Committee on Finance and Economic Affairs.

The Legislative Assembly rises for the summer.

July 10 – 17, 2017 The Committee announces public hearing dates in Thunder Bay, North Bay, Ottawa, Kingston and Windsor-Essex during the week of July 10, 2017; and in London, Kitchener-Waterloo, Niagara, Hamilton and Toronto during the week of July 17, 2017.
September 11, 2017 The Legislative Assembly is scheduled to resume sitting.
Fall, 2017 Hicks Morley will hold an Advantage session for clients to discuss Bill 148 and its potential impact on your workplace.

The Dos & Don’ts of Employment Reference Letters: Best Practices for Employers

By: Amy L. Sherrard

It can be difficult to determine what to say when providing a reference for a past employee – especially when their performance was below average or they were dismissed from their employment.

Employers often struggle to find the appropriate balance between their desire to be truthful in their review of the employee’s performance, and their desire to assist – or at least not interfere with – the employee’s efforts to become re-employed. Here is an overview of the legal framework for providing references, and some best practices to follow.

Legal Framework for Providing References

Employment references are one of the most useful tools in the hiring toolkit: they provide prospective employers with candid and unbiased evaluations of a candidate’s qualifications and job performance. However, over the years, boilerplate “name, rank and serial number” confirmations of employment have become the norm.

The shift from substantive commentary to boilerplate confirmations of employment can be attributed, in part, to the perceived risks associated with reference checks. Most of the risks associated with reference checks are incurred by the employers who provide them and typically occur in cases where the reference was negative. The principal risks are outlined below:

(a) Defamation

A negative reference may be defamatory in nature. However, as discussed in our recent Case in Point article, The Truth Hurts: Employer Not Liable In Defamation For Bad Reference Because It Was True, employers who provide negative references may be protected if the reference is substantially true or if the reference was honestly believed to be true and was provided in good faith (e.g. no malice).

(b) Negligent/Fraudulent Misrepresentation

Employers should be cautious when gathering background information in support of the reference; negligently collected information can result in an inaccurate reference and may result in liability for negligent misrepresentation.

In addition, intentionally withholding damaging information about a former employee to a prospective employer could result in a claim for negligent misrepresentation by the prospective employer. For example: your employee was fired for theft, that information was withheld in the reference, and then the new employer suffers damages because that employee stole from them.

(c) Bad Faith Conduct and Interfering with Mitigation Efforts

Refusing to provide references for an employee whose employment was terminated also has risks. We all know that an employee terminated without cause has a duty to mitigate their damages. Where an employer refuses to provide a reference, a court may find that this conduct interfered with the employee’s ability to mitigate their damages. The result? A potentially longer notice period.

Furthermore, when an employer refuses to provide a reference (or provides a malicious or untrue reference), and that refusal is found to be tied to the employee’s decision to commence a lawsuit, a court may also award additional damages for bad faith conduct.

Minimizing Risks When Providing Employment References

References are a critical part of the hiring process. Without them, potential employers are deprived of critical information and it is unfair to potential employees who would benefit from a positive reference.

In light of the risks, what can you do to provide meaningful and candid references? Here are some best practices that can help.

  1. Be clear about your reference policy – and apply it consistently

Decide whether it will be your policy to give:

(a) “confirmations of employment” – basic employment facts such as the employee’s date of hire, date of termination, their job title and a description of their job duties and responsibilities; or

(b) “employment references” – qualitative references which provide information about the employee’s qualifications, performance, leadership style, personality, etc.

Regardless of the style you choose, use it consistently.

  1. Centralize the reference process

Decide who has the authority within the organization to approve and provide references. If managers and supervisors are responsible for providing substantive references about former employees, consider having a centralized approval process through the Human Resources Department to ensure all staff are providing consistent references.

  1. Do your due diligence

Before providing a reference, you should consider the following:

  • Consult with the former employee’s managers, supervisors and employment file for details on performance, gather relevant background information, and document it in the file.
  • Review the employee’s file to determine if there are any documents, such as minutes of settlement, which could restrict the type of information that may be provided about the former employee to a prospective employer.
  1. Follow these DOs and DON’Ts for content

If you choose to provide substantive employment references, there are steps you can take to help protect yourself. Below are some DOs and DON’Ts for providing references:

✓   Keep a file with detailed records of the questions asked and answers provided X    Discuss or disclose the contents of the reference outside of the reference check process
✓   Ensure negative references are supported by the facts X    Give a bad reference because you dislike the employee
✓   Take steps to verify information, especially if it is not firsthand knowledge X    Guess or rely on hearsay to respond to reference questions
✓   Provide a work reference if you have direct knowledge of an employee’s performance X    Provide information about an employee that is not directly work-related
✓  Be consistent in the application of your reference policy to all employees and former employees X   Answer questions if you don’t know the answer or feel uncomfortable answering
✓   Provide candid and truthful references X    Disclose protected information (such as sensitive medical information or information about a protected ground under the Human Rights Code)

Employers may also want to consider how to handle references for employees terminated for cause. If litigation has commenced, consider consulting legal counsel or providing the letter on a “without prejudice” basis. If serious misconduct was involved, consider whether it would be appropriate to refuse a reference.

For private sector employers in British Columbia, Alberta and Québec, and federally regulated employers, always consult relevant privacy legislation.

When in doubt about whether to provide a reference or what to include, your Hicks Morley lawyer would be pleased to provide you or your organization with more information or assistance.

Featured Lawyer

Simon Mortimer

Simon Mortimer thumbnail Toronto partner Simon Mortimer’s practice is focused on the strategic management of workplace conflict and change. He consults with federally and provincially regulated employers to proactively manage issues without litigation or work disruption, and regularly appears before labour boards to ensure due process and democracy in certification applications, and to respond to allegations of unfair labour practices. Simon is the PROUD Chair of the Hicks Morley Pride Resource Group, which provides firm members with mentorship and support resources to assist with professional and career goals. The Pride Resource Group provides members of the firm with education and current awareness around legal issues, policy issues, diversity and the evolution of language and societal responses to sexual orientation and gender identity.

Read More

Featured Group

Pay Equity

pay equity Hicks Morley has extensive expertise in assisting employers achieve and maintain pay equity under both the Ontario Pay Equity Act and the federal Canadian Human Rights Act. We advise and guide our clients in the development of pay equity plans that meet the requirements of the legislation. We provide a full range of pay equity services – including conducting compliance audits to determine whether pay equity was originally achieved and whether it has been maintained to date, developing strategies to deal with identified vulnerabilities and acting on behalf of employers in respect of any active files with the Pay Equity Commission and litigation before the Pay Equity Hearings Tribunal. We also provide strategic advice during collective bargaining where pay equity liabilities may be impacted.

Learn more about how we can help measure and minimize your potential liability.

The articles in this Client Update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©