Alberta Human Rights Information Service July 12, 2006
In this issue:
- The Commission regularly updates its website with panel decisions as they become available. Here are summaries of selected panel decisions that have recently been posted:
Kim Baker v. Crombie Kennedy Nasmark Inc. (May 10, 2006; Beth Bryant, Panel Chair)
Pregnancy cannot be a factor in deciding whether to terminate an employee, and employers cannot raise family planning issues at the time of hiring:Ms. Baker alleged that the employer discriminated against her based on gender/pregnancy. Ms. Baker's employer terminated her employment after learning that Ms. Baker was pregnant.
The issues that were raised and became significant in the case were:
(1) The proximity of the termination to the time when management learned that the complainant was pregnant.
(2) The documentary evidence from the job interview that the employer had inquired about Ms. Baker's plans to have a family.
The panel noted that after the complaint was filed, the employer produced material that was meant to exonerate them from liability. These documents were specifically created to respond to the human rights complaint and were not given significant weight in the analysis of the facts in relation to the complaint.
The panel found merit and awarded approximately $9,000 as a remedy which included general damages, lost wages and lost maternity benefits.
Franklyn Kuehn v. Town of Granum (April 26, 2006; Lori G. Andreachuk, Q.C., Panel Chair)
Employers must try to accommodate employees with disabilities:
Mr. Kuehn was hired full time as town foreman for the Town of Granum. About three months into the job, he slipped in a darkened stairway and broke a vertebra in his back. After the injury, he worked part time, and, at first, medical information indicated that he would be back to work full time in six weeks, and then later in three to four months. About six weeks after the fall, Mr. Kuehn was still working part time, and the Town terminated his employment and told him not to return until he could fulfill all of his job requirements. No accommodation was really explored until after Kuehn was terminated.
The panel held that the Town had not fulfilled its duty to accommodate and ordered damages that included lost wages for nine months and general damages of $3,000.
- The Commission has also recently updated its website with these additional panel decisions:
Giuseppe Gariano v. Fluor Constructors Canada Ltd. (May 30, 2006; Diane Colley-Urquhart, Panel Chair)
Sonia Jacknife/Cassandra Collins v. Elizabeth Métis Settlement (May 11, 2006; Brenda F. Scragg, Panel Chair)
Darren Lund v. Stephen Boissoin and the Concerned Christians Coalition Inc. (Prehearing May 4, 2006; Lori G. Andreachuk, Q.C., Panel Chair)
Kenmore Pryce v. I.G. Machine & Fibers Ltd. (Severance Agreement, March 27, 2006; Brenda F. Scragg, Panel Chair)
- Important court decisions related to human rights:
Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company 2006 ABQB 302
Court of Queen's Bench holds pre-employment drug testing policy of KBR breaches Human Rights, Citizenship and Multiculturalism Act:
When Mr. Chiasson was interviewed for employment as a receiving inspector at the Syncrude plant in Fort McMurray, he was told that as a non-unionized employee, he was required to take and pass a pre-employment drug test. He took the required urine test, began work, and worked for approximately nine days, when his employer learned that he tested positive for cannabis and immediately terminated his employment. Mr. Chiasson complained to the Commission, and the matter was referred to a human rights panel. The panel determined that because Mr. Chiasson did not suffer from a disability or a perceived disability, the complaint must be dismissed. The Court of Queen's Bench overturned the panel decision and held that:
(1) KBR's drug testing policy is prima facie discriminatory as it combines mandatory pre-employment testing, automatic termination for a positive result, and no accommodation. "By purpose and effect it screens individuals from the work force based on a risk assessment that a positive drug test increases the chance an individual may be impaired at work some time in the future . . . In relying on general statistics to weed out a particular person, the policy relies upon presumed personal traits and does not take into account the capacity, needs, merits and circumstances of the individual job applicant."
(2) The policy discriminates against both drug-dependent individuals as well as recreational users. The Court relied heavily on Entrop and stated that recreational users are adversely affected by the KBR policy. "The policy not only treats all prospective employees who test positive for drugs the same, it treats them as if they were drug-dependent and further assumes that they are likely to report to work impaired. Even though Mr. Chiasson may not be drug-dependent, the policy operates to treat him as such, and the requirement that he be tested for drugs with an automatic sanction for a positive test is prima facie discriminatory."
(3) The policy does not pass the tests set out in Meiorin, as KBR failed to demonstrate compliance with the procedural or substantive components of the duty to accommodate. Further, the policy fails because urine testing cannot measure present impairment, and there are other more direct, effective and individual methods for employers to monitor impairment at work.
"Accordingly, the policy, which applies pre-employment testing to all covered employees and provides for automatic termination without accommodation, breaches section 7(1) of the Act and is not justified under the available standards."
In terms of remedy, the Court ordered that KBR cease the contravention of the Act and retained jurisdiction to order damages for Mr. Chiasson if agreement could not be reached between the parties.
Alberta (Minister of Human Resources and Employment) v. Director of Human Rights, Citizenship and Multiculturalism Commission, 2006 ABCA 53
Court affirms paramountcy of human rights legislation:
Mr. Weller filed a complaint in the area of services under the ground of family status, as he was denied a shelter allowance while living on social assistance because he was living with his mother. He would have received a shelter allowance had he lived with a stranger. The human rights panel (June 9, 2004) and the Court of Queen's Bench (May 18, 2005) both found discrimination. The Minister of Human Resources and Employment appealed the Queen's Bench decision to the Court of Appeal. The full argument on the discrimination was heard on April 5, 2006. The decision was reserved and will be rendered at a future date.
A preliminary argument was heard at Court of Appeal on January 26, 2006 and a decision rendered on February 10, 2006. The Minister of Human Resources and Employment asked Court of Appeal to reconsider its decision in Gwinner v. Alberta Human Resources and Employment (2004) 354 AR 91, which gives paramountcy to human rights legislation. The Court said this was squarely argued before the Court of Appeal in Gwinner, and also before the Supreme Court of Canada when they refused leave to appeal in Gwinner. The Court said it does not encourage re-argument of recent precedents.
- Letter from the chief commissioner:
The chief commissioner of the Alberta Human Rights and Citizenship Commission has written a letter to the editor of the Calgary Herald regarding Global TV's coverage about alleged racism and discrimination in Calgary nighclubs and bars.
- Human rights in the workplace public workshops:
The Commission has updated its Human Rights in the Workplace public workshop schedule for 2006-2007.
- Update on Canadian Coalition of Municipalities Against Racism and Discrimination:
The Regional Municipality of Wood Buffalo is one of four Canadian municipalities that have joined the Coalition of Municipalities Against Racism and Discrimination, and several other Alberta municipalities are considering joining. They are among the 60 municipalities in contact with the Canadian Commission for UNESCO about the Coalition. With support from the Human Rights, Citizenship and Multiculturalism Education Fund, the Alberta Urban Municipalities Association is developing an on-line resource toolkit to support municipalities undertaking action to reduce racism an discrimination. Learn more about developments in Alberta.
City of Calgary Aldermen Joe Ceci, Diane Colley-Urquhart (also a commissioner for the Alberta Human Rights and Citizenship Commission) and Bob Hawkesworth (left to right) seeking input on the Coalition from Calgary stakeholders in May, 2006. Discussion centered around ways to reduce racism, eliminate barriers and encourage full participation of city residents. Also at the table: Elisabeth Barot (left), Canadian Commission for UNESCO and Cassie Palamar, Alberta Human Rights and Citizenship Commission.
PLEASE NOTE: In the following sections of the newsletter, we publish news and information provided by other organizations. We also link to other websites related to human rights and diversity. The Commission provides this information as a service and is not responsible for the content provided by other organizations on their websites or by other means. Please direct comments or inquiries regarding these organizations or their websites to the organization in question.
- Significant days:
August 7 is Alberta Heritage Day: Celebrated annually on the first Monday of August, Alberta Heritage Day recognizes and celebrates the province's cultural heritage. This special day has been recognized since 1974, when legislation was passed to dedicate the first Monday of each year as Alberta Heritage Day.August 9 is International Day of the World's Indigenous People:
From the UN website: "The date marks the day of the first meeting, in 1982, of the UN Working Group on Indigenous Populations of the Subcommission on the Promotion and Protection of Human Rights." Read more about the day and about the first and second International Decades of the World's Indigenous people.
September 21 is International Day of Peace:
United Nations member countries are calling for worldwide observance of a 24-hour cease-fire and a day of non-violence on September 21. Read more. Various events and observances are planned around the world. See http://www.internationaldayofpeace.org/.
September 30 is the deadline for Persons Case Scholarship applications:
Students whose studies and career goals will ultimately contribute to the advancement of women, or who are studying in fields where members of their gender are traditionally few in number are encouraged to apply for the Persons Case Scholarship. Applications are available online.
Read about the Persons Case. Persons Day is celebrated on October 18. It marks the anniversary of women being declared "persons" under Canadian law.
See the list of significant days on the Help Make a Difference website.
- The Human Rights, Citizenship and Multiculturalism Education Fund:
Increase in funding
The Human Rights, Citizenship and Multiculturalism Education Fund received a $200,000 increase in funding in the 2006-2007 fiscal year. The fund provides financial support to community organizations that are undertaking human rights and diversity initiatives that lead to change. Read the news release.
Grant application deadline
The next deadline for grant applications for the HRCM Education Fund is October 1, 2006.
Ten Alberta organizations recently received over $350,000 from the HRCM Education Fund to develop education materials, host workshops and pursue partnership projects that help build skills related to diversity and human rights in the province. The grants help organizations foster equality, promote fairness, and encourage the inclusion of all Albertans in the economic, social and cultural life of the province. Read the news release and complete list of awarded grants and read about other projects that the HRCM Education Fund has funded.
With funding from the HRCM Education Fund, Alberta Committee of Citizens with Disabilities has developed educational materials that will assist persons with disabilities to learn more effective communication strategies to help them discuss their accommodation requirements and assist them to build strong and effective relationships with an employer, or a post-secondary institution. As stated in the Letter of Introduction to the curriculum, the Negotiating for the Future: Accessing Workplace Accommodations training materials build on the Commission's publications Duty to accommodate and Duty to accommodate students with disabilities in post-secondary educational institutions. The materials can be used in self-directed study or participatory workshops.
A PhD candidate was granted the Alberta Award for the Study of Canadian Human Rights and Multiculturalism for his current and future work in creating safe, caring and inclusive schools. The annual $10,000 scholarship was created to advance knowledge in the areas of human rights and/or multiculturalism. The HRCM Education Fund provided funds to create an endowment for this scholarship. Read the news release.
Eight graduating high school students were awarded the Queen's Jubilee Citizenship Medal and Scholarship for their outstanding contribution to their community through their citizenship, leadership, community service and volunteerism. The 2006 recipients each received a medal and a $5,000 scholarship. The scholarship is supported by the HRCM Education Fund through an endowment administered by Alberta Scholarship Programs. Read the news release.
- Stand Up and Stop Bullying: Stand Up and Stop Bullying, launched in May 2006, is part of a three-year, province-wide bullying prevention campaign that is working to change the perception that bullying is a normal part of growing up. The campaign includes a 24-hour helpline operated by trained counselors. The helpline (1-888-456-2323) is intended to help youth who are struggling with bullying, are in need of help, and feel they have nowhere else to turn. A new teen-focused website includes information about bullying and how to make it stop. Read the news release.
- National Aboriginal Day: Alberta celebrated the 10th National Aboriginal Day on June 21. Events included a traditional "Smudging the Streets" cleansing ceremony, Aboriginal dancers and drummers, and a tipi village. Read the news release.
- Foreign students have additional work opportunities: For the first time, under a new federal-provincial agreement, the Off-Campus Work Permit Program for International Students makes it easier for non-Canadian students to apply for work permits. This program will help address Alberta's labour shortage and provide opportunities for international students to gain work experience in Alberta. Read the news release.
- The Youth Guide to the Canadian Charter of Rights and Freedoms: The John Humphrey Centre for Peace and Human Rights developed a bilingual guide and poster interpreting the Canadian Charter in child-friendly plain language, targeting youth 12 to 16 years old. This resource is useful for teachers and trainers and can be downloaded.
- The Gay-Straight Student Alliance Handbook: A Comprehensive Resource for Canadian K-12 Teachers, Administrators and School Counselors: The Canadian Teachers' Federation published a handbook designed to assist in understanding the educational, health and safety needs of those students who are or are perceived as being bisexual, gay, lesbian, trans-identified and two-spirited. You can purchase the handbook online for ten dollars.
- Becoming a Parent Saskatchewan-style: Saskatchewan Labour and Saskatchewan Human Rights Commission used Alberta's Becoming a Parent as a prototype to publish Pregnancy, Parenting and the Workplace Handbook. The handbook provides information on labour standards, human rights, employment insurance benefits and work-family issues. Read the news release.
- Improving relations between Aboriginal and ethnocultural communities and the police: The Law Enforcement and Aboriginal Diversity (LEAD) Network is extending an open invitation to participate in its first national consultation with Aboriginals and ethnocultural/ethnoracial communities. A variety of ways to participate are outlined on their website.
- World Day for Cultural Diversity for Dialogue and Development: The General Assembly of the UN proclaimed May 21 as World Day for Cultural Diversity for Dialogue and Development. The Day provides opportunities to appreciate and understand the values of cultural diversity and learn to "live together" better. UNESCO invites submissions of initiatives and original ideas to celebrate this World Day.
- Call for nominations for UNESCO Prize for Human Rights Education: UNESCO is accepting applications for the 2006 Human Rights Education Prize. The $10,000 (US) prize is to encourage individuals and organizations that have made outstanding contributions to the advancement of knowledge of human rights. The successful candidate will be announced on December 10, 2006, Human Rights Day.
- The World Programme for Human Rights Education: The UN High Commissioner for Human Rights and the Director-General of UNESCO addressed a joint letter to all Ministers of Education encouraging the national implementation of the Plan of Action for the first phase of the World Programme for Human Rights Education. This phase focuses on the integration of human rights education into the primary and secondary school systems.
- Immigrants volunteering: Making Connections: Social and Civic Engagement Among Canadian Immigrants, a research report released by the Canadian Council on Social Development, examines immigrants' contributions to Canada through volunteering, charitable giving and participation in community organizations. Read the report.
Due to confidentiality concerns, the Commission cannot reply to complaints of discrimination using the Internet. Please contact the Commission by telephone or regular mail if you have a specific complaint.
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