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.
Facts
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:
- places a burden on complainants to avoid discrimination, rather than on employers not to discriminate;
- is irreconcilable with recently recognized statutory grounds that arguably implicate a complainant’s choices that are significant to their identity;
- generally contradicts the Court’s rejection of drawing superficial distinctions between protected grounds and conduct inextricably linked to those grounds;
- specifically contradicts the Court’s rejection of the view that choice makes drug users responsible for the harms of their drug use;
- reinforces stigma by blaming marginalized communities for their purported choices; and
- 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.
Conclusion
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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