The Commission recognizes the right of the employer to manage its workforce, including relying on discipline when necessary. A progressive performance management approach that takes into account accommodation needs, and is consistently applied and documented, is a best practice.
a) Evaluating and managing performance
It is in an organization’s best interest to follow good human resources practices, such as regular performance appraisals and documented progressive performance management of all employees.
i) Performance appraisals:
Performance appraisals and evaluations provide a tool for employees to know whether or not they are meeting expectations and to have an opportunity to improve. Such evaluations must be conducted regularly, consistently and fairly. The process for, and frequency of, performance evaluation should be set out clearly so that all managers, supervisors and employees know what to expect. This is for the benefit of both the employee and the employer.
When employers do not have good practices in place or do not follow the normal practice of performance evaluations, they leave themselves open to allegations of discrimination within their organization.
Example: An employer rarely does performance evaluations and is somewhat lax about performance management – usually relying only on undocumented verbal warnings. A racialized employee raises concerns about discrimination and shortly afterwards his supervisor begins a process of performance evaluation. He is asked to meet with his supervisor every month to discuss his performance. Although objectively, the employee’s performance is no worse than it has always been, and no different than that of his colleagues, his personnel file suddenly becomes filled with reports of issues with his performance. Ultimately, he receives a letter of termination based on his negative performance evaluations over the previous six months. The employee alleges reprisal. Despite the existence of this “paper-trail,” the employer’s actions will be closely scrutinized in the event of a human rights complaint.
Some performance evaluation systems may have an adverse impact on persons identified by the Code. One example is if an employee is asked to rate him or herself and then discuss this with the manager. This may affect some racialized persons, newcomers, older persons, women or persons with disabilities who may have had past experiences of discrimination or cultural differences that make it more difficult for them to “sell themselves.”
ii) Progressive discipline:
A best practice is for an organization to have clearly defined policies relating to disciplinary processes and outcomes. Discipline should range from verbal warnings to written warnings to termination and be based on objective criteria. The discipline applied in a particular situation should be consistent with the organization’s established policies and history of disciplining employees.
Example: A pregnant employee is not provided with a written evaluation of her performance, is given less time than other employees to meet performance objectives and is demoted before leaving for maternity leave. This could be viewed as sex discrimination.
b) Principles behind discrimination-free discipline
Employers should make sure that performance management, and other forms of discipline, are carried out in a way that is non-discriminatory and is not based on stereotypes or discriminatory criteria. For example, an employer may have breached the Code if an older worker is not given opportunities to improve through performance management because of a perception that the performance is linked to age, or if a worker is subjected to a higher level of scrutiny because of another Code ground, such as sex or sexual orientation.
At the same time, discipline should not be based on or linked to discriminatory assessments or criteria.
Example: A young female account manager is given a written warning and denied a bonus because her performance is not on par with her colleagues. A contributing factor is that she has only been assigned individual accounts rather than the corporate accounts that yield much larger commissions. This is because the company believes that the clients, many of whom refer to her as “the young lady,” would not take her as seriously as her older male co-workers. The disciplinary action could be challenged as discrimination based on age and gender.
Take care to make sure that employees with similar performance problems are subjected to similar types of discipline. Human rights cases before tribunals and boards of inquiry often include situations where individuals identified by Code grounds are treated more harshly than others, and are disciplined or terminated from employment in circumstances where others who were not similarly identified were not disciplined or only received verbal warnings in the past.
Example: Mr. Smith, a white male, is constantly late for work, but his supervisor has never warned him about this inappropriate behaviour. A co-worker, Mr. Lyn, a Chinese male, was late twice and received a warning letter from the supervisor. There may be a perception on the part of Mr. Lyn that the supervisor is treating him unfairly, because Mr. Smith never received a similar letter.
c) Consider whether reasons for discipline or termination are linked to disability
Before terminating or sanctioning an employee for "unacceptable behaviour," an employer might first consider whether the actions of the employee are caused by a disability, especially where the employer is aware or perceives that the employee has a disability. For example, a severe change in an employee's behaviour could signal that the situation warrants further examination. Progressive performance management and discipline and referrals to employee assistance programs should be used before sanctions or termination are considered.
Mental illness should be addressed and accommodated in the workplace in the same way as other disabilities. A recent decision of the Human Rights Tribunal of Ontario has confirmed that an employer is liable if it does not accommodate the needs of an employee with a mental illness, such as bipolar disorder. The employer must go through the process of determining and implementing accommodation options before making the decision that an employee cannot fulfill the essential duties of the position.[74] The remedies for the breach of these rights can be substantial. See also Section 13b(i) – “Firing a probationary employee” and Section 9m (viii) – “Performance managing an employee who is suspected to have a mental health problem.”
In some cases, an employer may need to pay special attention to situations that could be linked to mental disability. Even if an employer has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code. Prudent employers should try to offer help and support to employees before imposing severe sanctions. Also, consider that some mental illnesses may make the employee incapable of identifying his or her needs.
Example: John has severe anxiety and depression, which he has chosen not to disclose to his employer because he is concerned about how he would be treated at work if it were known that he had a mental disability. He experiences a crisis at work and then does not appear at work for several days. The employer is concerned about John's absence and recognizes that termination for failure to report to work may be premature. The employer offers John an opportunity to explain the situation after treatment has been received and the situation has stabilized. Upon learning that a medical issue exists, the employer offers assistance and accommodation.
d) Attendance management programs and policies
Employers need to make sure that any absenteeism policy or attendance management programs in place or contemplated will not have a discriminatory impact on people identified by Code grounds. Such policies and programs must be applied in a way that meets the requirement to accommodate to the point of undue hardship, including individual assessment where appropriate.
A policy or program that provides for counselling, automatic discipline, enrolment in a punitive attendance management program or termination based on a set number of absences may give rise to claims of discrimination based on grounds such as disability, family status, sex and creed.[75] For example, rigidly applying absenteeism policies to a pregnant woman who is experiencing domestic violence could result in disciplinary action that raises human rights concerns.
The Commission has heard that a number of employers have policies that state that any employee who takes more than six sick days off in a year will be enrolled in an attendance management program and performance managed with consequences up to and including termination. Rigidly applying these kinds of policies gives rise to human rights concerns. It would be discriminatory for this policy to be applied equally to all employees, including persons whose absences are linked to Code grounds.
Example: An employer has an absence management policy that is based on the average number of sick days used by employees. Employees who take more than the average number of sick days face disciplinary measures such as interviews, warnings and requests for detailed medical information. An employee with a disability who submitted medical notes justifying each of her absences from work is then subjected to this disciplinary process, and her disability is not taken into account as a mitigating factor. This policy may be found to be discriminatory and requests for medical information as part of a disciplinary process could constitute harassment.
While the employer is entitled to expect that employees attend at work, it is also required to provide accommodation, including individual assessment, in applying its absenteeism policy. Case law has indicated that it is discriminatory to take disability-related absences into account in deciding to terminate an individual’s employment for excessive absenteeism.
Example: Over nine years of employment, an employee misses more than 365 days of work due to various health problems. The employer implements a new attendance management policy that requires the top 25% of employees ranked by number of days absent to attend for an interview. The employee is interviewed by the employer and asked to provide a medical certificate, which she does. Her absences continue over the following month and her employment is ultimately terminated on the basis that there is a poor prognosis for future attendance. A tribunal finds this to be discriminatory, since the employer failed to consider that a number of the absences were disability-related.
At the same time, a rule that employees must bring in a doctor’s note for every absence or face discipline may have a disproportionate impact on employees with disabilities. A policy that does not allow for individualized assessment and accommodation is problematic and may be the basis for a human rights claim.
Policies that provide incentives such as monetary rewards and bonuses may disadvantage persons who may need to be absent from the workplace due to Code-related accommodation requirements.
Employers are not required to indefinitely maintain employees in the workforce who are permanently unable to work or have a record of excessive absences that are not related to Code grounds. An employer should not decide to discipline or terminate an employee because of past attendance or poor prospects of future attendance related to a Code ground, without providing accommodation to the point of undue hardship.
Even where an employee has had a high number of absences in the past, the question is whether the employee’s future rate of Code-related absences would be at a level that the employer could accommodate without undue hardship. This is a judgment call that depends on an objective and individualized assessment of the three factors: cost, outside sources of funding and health and safety. Employers are often too hasty in claiming undue hardship based on an employee’s Code-related absences.
Example: An employee had over 300 full days, and a number of partial days, of disability-related absences over nine years of employment. A termination in this case was viewed as discriminatory.
Example: An employee had been absent for over 160 full days and more than 30 part days in 12 years of employment. The employer was successful in proving undue hardship and the termination of an employee because of his record of absences was upheld.
For information on how to make decisions about undue hardship, see Section IV-8d) – “What is undue hardship?” and Appendix E – “Accommodation Template for Employers.”
i) Accommodate before disciplining for absenteeism:
Before warning or disciplining an employee about the consequences of “excessive absenteeism,” the employer should make sure that it has accommodated Code-related needs that are known, or ought to be known, to the point of undue hardship. Failing this, any letters or discussions suggesting that disciplinary consequences may be applied could be seen to be discriminatory.
Example: An employee asks to use flex-time as an accommodation of her family status – this will help her meet her mother’s age and disability-related needs. This request is granted. Some months later, the employer suspects that the employee is abusing this “privilege” because the employee is increasingly absent from the office during working hours. The employer sends a letter warning that further absences will result in discipline and possibly termination. The employer has taken no steps to determine whether there are legitimate Code-related reasons for the extra absences, nor has it indicated an intention to provide accommodation to the point of undue hardship in relation to such absences. This approach is not consistent with the objectives of the Code and should be avoided.
A best practice is for employers to clearly refer to their willingness to accommodate Code-related needs to the point of undue hardship, and to request relevant information to allow them to provide such accommodation where they have concerns about an employee’s absences. If the employee fails to provide such information and yet the absences continue, the employer may be entitled to take appropriate disciplinary steps.
Example: An employer becomes suspicious about an office worker’s pattern of absences because she often calls in “sick” on Fridays, particularly over the summer and before holiday Mondays. The employer knows that there may be valid health or other Code-related reasons for such absences, and asks the employee whether these absences are linked to a need for accommodation under the Code. The employer makes it clear to the employee that it will provide accommodation for any Code-related needs that may exist. The employee states that she has no accommodation needs and provides various excuses for her absences. The pattern of absences continues and the employer proceeds with progressive discipline. Such an approach likely would not raise concerns about potential violations of the Code.
Employers should make sure they take into account the possibility of undiagnosed mental illness before firing an employee for attendance issues. See also Section IV-9m) – “Mental illness in the workplace.”
Example: An employee with a good attendance record suddenly starts missing whole or partial days of work. The employee quite obviously appears to be unstable when he is at work, and co-workers have said they no longer wish to work with him. The employee has provided no medical information and none has been requested. The manager sends a letter to the worker detailing the dates he was absent and indicating that disciplinary consequences will apply up to and including termination, if such absences continue. The letter does not indicate that the employer is willing to provide accommodation to the point of undue hardship for any Code-related health needs, nor does it request documentation relevant to providing such accommodation. The employee is later terminated due to an escalation in the rate of absences. This scenario could raise an inference of discrimination.
e) Discriminatory treatment leading to performance issues
Employees who face discriminatory treatment may legitimately object to such treatment – a person’s behaviour may itself be a reaction to the experience of discrimination or the existence of a poisoned environment. In some cases, employees who challenge discriminatory treatment are subjected to discipline or other forms of management scrutiny for having engaged in conflicts with their co-workers or supervisors.
If an employee states that his or her behaviour was caused by or linked to discriminatory treatment, an employer needs to investigate the underlying allegations. If the employee’s behaviour can be seen as a response that is linked to discriminatory behaviour that has not been addressed by the company, this should be taken into account in determining what action to take. A decision to proceed with discipline, including termination, without having considered the impact of the poisoned environment may be found to be discriminatory.[76]
f) Extending probation
Extending a probationary period is a common element of claims of discrimination based on race, disability and other Code grounds. When an employer extends an employee’s probation, it must make sure that its reasons for doing so are not influenced by discriminatory considerations. One way to make sure of this is to have clear and objective criteria about what performance is expected of an employee, and to inform the employee of this at the start of the probationary period. A best practice is for the employer to provide feedback during the probationary period to allow the employee an opportunity to work on any areas where their performance appears to be falling short of the stated objectives.
Employers should also be aware that extending a probationary period could either be an indication of discrimination or an appropriate accommodation, depending on the circumstances and the context. Where an employer is considering extending a probationary period, it should be consistent with human rights principles and the duty to accommodate.
Example: An employee is absent from the workplace for one month due to a pregnancy-related illness during her three-month probationary period. Contrary to standard practice, her probationary period is extended for a period of an additional three months even though she was only absent one month. The deviation from standard practice in this case raises concerns about sex discrimination.
Example: An employee with a disability is often absent from work, and although he does not ask for accommodation, it is obvious that his disability is interfering with his ability to do the job. He is told that his employment will end at the end of the probationary period. The employee requests accommodation and extension of the probationary period to prove that he can do the job. In these circumstances, the employer should consider providing the extension unless it can prove that doing so would amount to undue hardship.
[74] Lane, supra note 70
[75] See for example O.P.S.E.U. v. Ontario (Ministry of Community and Social Services), 1996 CarswellOnt 545, 89 O.A.C. 161 (Div. Ct.) leave to appeal refused 1996 CarswellOnt 4378 (C.A.)
[76] See Naraine v. Ford Motor Co. of Canada (1996), 27 C.H.R.R. D/230, [1996] O.H.R.B.I.D. No. 23 (Ont. Bd. of Inquiry); affirmed (1999), 34 C.H.R.R. D/405, 124 O.A.C. 39 (Ont. Div. Ct.); reversed on other grounds, [2001] O.J. No. 4937, 41 C.H.R.R. D/349 (Ont. C.A.); leave to appeal refused [2002] S.C.C.A. No. 69 (Naraine).