Human rights legislation plays a significant role in employment law and can become a costly factor when it comes to termination in particular. Employers must ensure that any termination based on an employee’s inability to perform their job duties meets the requirements of the Alberta Human Rights Act. Otherwise, they may face substantial fines and damages from the Alberta Human Rights Tribunal.
Employers are prohibited under the Alberta Human Rights Act from terminating an employee due to a protected ground unless the termination is “reasonable and justifiable” and based on a “bona fide occupational requirement”.
Breaking this down further, let us examine each component of this mandate for clarity.
What is a “protected ground”?
The Act protects Albertans from discrimination based on several specific grounds, which include:
- Religious beliefs
- Gender (includes pregnancy and sexual harassment)
- Gender identity (defined as a person’s internal experience of gender)
- Gender expression (defined as a person’s outward expression of gender)
- Physical disability
- Mental disability
- Age (applies to individuals aged 18 and over. Minors under the age of 18 are protected from discrimination on all grounds except age)
- Place of origin
- Marital status
- Source of income (includes any lawful source of income that attracts social stigma, including social assistance or disability pension)
- Family status
- Sexual orientation
Defining “Reasonable and Justifiable” Termination
Employers are required to find non-discriminatory ways to meet their business objections, with the recognition that some instances of discrimination may be considered “reasonable and justifiable” to meet necessary workplace standards. This is considered a “bona fide occupational requirement”.
The legal test for a bona fide occupational requirement was originally set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin). The Meiorin case involved a female firefighter who was terminated after failing to meet the requirements of an aerobic fitness test, despite having worked as a firefighter for three years. She grieved her termination on the grounds that the test discriminated against women, who generally have a lower aerobic capacity than men.
The Supreme Court held that once it has been shown that a workplace standard is, on its face, discriminatory against a protected ground (gender, in Meiorin), the employer must prove the following three elements:
- The workplace standard must be rationally connected to the functions of the job performed.
- The standard must have been established honestly and in the good-faith belief that it was necessary to fulfill a legitimate work-related objective.
- The standard is reasonably necessary to accomplish the work-related goal or purpose. To demonstrate this, an employer must be able to show that they accommodated an employee to the point of undue hardship.
Applying the three-part test to the facts of Meiorin, the Supreme Court of Canada found that the government failed to prove that the aerobic standard was reasonably necessary for the firefighter’s role.
An Employer’s Obligation to Accommodate
Employers have a duty to accommodate an employee who, for reasons related to a protected ground under the Human Rights Act, is unable to meet a workplace standard or expectation. The duty to accommodate refers to an employer’s obligation to adjust the conditions of employment to remove barriers that would otherwise be discriminatory.
For example, if a workplace standard requires employees to work at a designated workplace, such as an office, an employee may have difficulty meeting this standard if they have certain physical limitations that render them unable to drive or otherwise transport themselves to and from the workplace. One potential accommodation would be for the employer to allow the employee to perform their role remotely, enabling them to work from home. If this can be achieved, the employer would have an obligation to allow for this accommodation for this specific employee.
Employers must consider any accommodation that would not cause the employer undue hardship. The Alberta Human Rights Commission explains that undue hardship occurs where the required accommodation “would create onerous conditions for an employer such as intolerable financial costs or serious disruption to business”.
The Alberta Human Rights Commission has created a list of factors that an employer should consider when determining whether an accommodation would cause undue hardship. These include:
- Financial costs to the employer
- The size and resources of the employer
- The degree of disruption to the employer’s operations the accommodation would cause
- Morale problems of other employees caused by the accommodation
- Whether the accommodation substantially interferes with the rights of other individuals or groups
- Whether the employer could relocate employees between worksites or positions, temporarily or permanently
- Whether the accommodation would cause health and safety issues in the workplace
What constitutes a reasonable accommodation or undue hardship depends on each case’s unique circumstances and job requirements. For example, the “work from home” accommodation in our example above would not be appropriate if the employee was an automobile mechanic. In such a situation, as the employee would not be able to perform their function remotely, it would be unreasonable to expect an employer to accommodate this request.
Contact DBH Law in Calgary for Experienced Advice on Employment Matters
At DBH Law, our employment lawyers apply a compassionate and common-sense approach to legal disputes. We advise employers and employees on their rights and obligations at the end of the employment relationship, including the intersection between termination and human rights protections.
DBH Law provides trusted, client-focused advice on a range of employment issues, including wrongful and constructive dismissal and termination packages. Contact us online or by phone at 403-252-9937 to discover how we can help you today.