Wednesday, 12 July 2017

Supreme Court ruling limits rights of employees in termination for impairment

In Stewart v Elk Valley Coal Corp, the Supreme Court upheld the termination of an employee violated the employer’s drug and alcohol policy, as revealed through post-incident testing.  Even though the employee had addiction issues, the Court found the termination was not discriminatory since the employer could show that the termination was based on a violation of its policy and was not based on the employee’s addiction.
There’s been a longstanding tension between an employer’s interest in using drug and alcohol policies to ensure a safe workplace, and an employee’s human right not to be discriminated against on the basis of a prohibited ground of discrimination. The facts in this case required the Court to wrestle with these tensions and with the human rights implications of employer policies that made mandatory the disclosure of addiction-related issues or drug and alcohol dependence.
The employer operated a mine, in which the employee held a safety-sensitive position. With the stated interest of ensuring safety, the employer had implemented a policy regarding alcohol and both illegal and medicinal drugs. Under the policy, employees were to disclose any addiction-related or dependency issues. If they disclosed before an incident relating to these issues occurred, the employee would be offered treatment. If they didn’t disclose and were then involved in an incident - and after which tested positive for drugs or alcohol - the employee would be terminated.
When the employee in this matter was involved in an accident, the employer conducted post-incident testing. The employee tested positive for cocaine. The employee alleged he was addicted to cocaine. He had not disclosed his dependence on cocaine prior to the accident. He was terminated from employment.
Drug policy cases fall along a spectrum
Since the employee violated the policy by not disclosing his issues with cocaine, the Court found that the employee was terminated for his violation of the policy and not because of his drug dependence. The employee argued that denial was part of his addiction, and so his failure to disclose as required the policy was due to his addiction. The termination, therefore, was based on his addiction, and the disclosure requirement was discriminatory. The court did not agree, stating:
In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. Whether a protected characteristic is a factor in the adverse impact will depend on the facts and must be assessed on a case-by-case basis. The connection between an addiction and adverse treatment cannot be assumed and must be based on evidence
The employee in this case had not made out a prima facie case of discrimination and was found to be capable of complying with the workplace rule. According to the Court, the termination was based on his failure to comply with the policy and did not engage human rights protections. Further, the Court found that if the employer had merely suspended the employee, instead of imposing the serious and immediate consequence of termination, it would have undermined the policy’s deterrent effect. As a result, the Court concluded that incorporating aspects of individual accommodation would result in undue hardship.
A troubling precedent
It has long been settled that the legal threshold for prima facie discrimination is whether the complainant’s protected ground is a factor in the harm they suffer. By that standard, it seems clear that a drug policy that automatically terminates employees who use drugs prima facie discriminates against individuals burdened by drug dependence.
In this case, however, not only did the Court state that addiction could not be assumed to be a cause, it imposed an evidentiary requirement on the employee to prove a connection at the prima facie stage. This essentially shifts the evidentiary burden in cases of prima facie discrimination from employer to employee.
The Court focused on the employees’ presumed choices leading to the harm suffered. As noted by Justice Gascon in dissent, this is problematic for a number of reasons, not least of which is that it requires employees with dependency issues to make prudent choices to avoid discrimination. At its most basic level, this reasoning that complainants be prudent in avoiding discrimination grants employers a sort of contributory fault defence in discrimination cases, which:
  1. places a burden on complainants to avoid discrimination, rather than on employers not to discriminate;        
  2. is irreconcilable with recently recognized statutory grounds that arguably implicate a complainant’s choices that are significant to their identity;
  3. generally contradicts the Court’s rejection of drawing superficial distinctions between protected grounds and conduct inextricably linked to those grounds;
  4. specifically contradicts the Court’s rejection of the view that choice makes drug users responsible for the harms of their drug use;
  5. reinforces stigma by blaming marginalized communities for their purported choices; and
  6. substitutes the proper inquiry (whether drug‑dependent individuals are adversely impacted by the policy) with an improper inquiry (whether drug‑dependent individuals are so overwhelmingly impacted by their addictions that any discrimination they experience is caused exclusively by their addictions).
Also, non-dependent employees and drug‑dependent employees alike, only those who have drug-dependency issues would disproportionately struggle in complying with the terms of the policy.
This decision represents a departure from well-established law and is insensitive to the unique difficulties faced by those suffering from issues of drug or alcohol dependency. We can only hope the Court will reconsider its position in the future. Until then, unions and their member must, as always, be aware of the disclosure requirements in employer policies.

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