Membership in trade unions, employers' organizations, or occupational associations: Duty to accommodate
Members have a right to reasonable accommodation based on their needs related to the protected grounds. Accommodation means making changes to certain rules, standards, policies, and physical environments to ensure that they don't have a negative effect on a person because of the person's mental or physical disability, religion, gender or any other protected ground. For more information about the grounds protected under the Alberta Human Rights Act, see the Alberta Human Rights Commission information sheet Protected areas and grounds.
Employers, as well as unions, are expected to accommodate to the point of undue hardship. What constitutes undue hardship for one entity will not necessarily be undue hardship for another. For example, depending on the circumstances of the workplace, certain accommodations, such as creating a new position for a member, "bumping" another member from an existing position, or transferring a member between bargaining units, may not be expected.
This section of the website focuses on the duty to accommodate as it relates to unions. The cases discuss these principles in the context of a union setting; however, the same principles can be applied to employers' organizations and occupational associations. For more information about the duty to accommodate and undue hardship, see the Commission interpretive bulletin Duty to accommodate.
The union's duty to accommodate arises when:
- the terms of its membership are discriminatory;
- it participated in forming a discriminatory work rule, such as a provision in the collective agreement, or it impedes the reasonable efforts of an employer to accommodate a member (see Renaud v. Central Okanagan School District 23 (1992), 95 D.L.R. (4th) 577, Supreme Court of Canada); or
- it is acting as an employer.
The first two items are discussed below. For more information on unions as employers see Human rights in the workplace/Information for trade unions and other organizations that represent employees.
Section 9 of the AHR Act prohibits discrimination against members or any person. It specifically prohibits excluding a person from union membership for discriminatory reasons. Therefore, a union has a duty to accommodate prospective members regarding the terms of union membership. For example, people who have gained professional experience from other countries might apply for membership in a professional association. The union has a duty to accommodate these requests through individual assessment of each prospective member unless they can demonstrate that individualized assessment would create undue hardship. A union that refuses to accept professional credentials from specific countries without an individualized assessment of qualifications may be open to a human rights complaint.
Another example is where a union refuses membership to someone who has a drug or alcohol dependency. Drug and alcohol dependencies-as well as perceived dependencies-are forms of disability under the AHR Act. The union has a duty to accommodate this disability to the point of undue hardship, by providing help, such as time for rehabilitation.
2. Responsibility of unions and employers to address discrimination
A union will share responsibility for a discriminatory rule if it participated in the formation of the rule with the employer. In this instance, failure to accommodate to the point of undue hardship may be grounds for a human rights complaint against both the union and the employer. For example, when the union and employer have negotiated a clause into the collective agreement they will both be responsible for accommodating any discriminating effect the clause has on members.
If the union did not participate in the formation of the discriminatory rule, the employer must first examine all reasonable avenues to accommodate the member. If the only avenue that is reasonable in the circumstances is one that affects member rights under the collective agreement, the employer may request assistance from the union.
The onus would be on the employer to try various means to accommodate the member. If the employer was unable to find an appropriate accommodation, it could then request the union's participation in the process. At this point the union's duty to accommodate would arise.
The following cases are examples of how courts have addressed the responsibilities of unions and employers.
Canada Safeway Ltd. v. Alberta (Human Rights and Citizenship Comm.) (2000), 44 C.H.R.R. D/272, Alberta Court of Queen's Bench (affirmed by Alberta Court of Appeal (2003) 47 C.H.R.R. D/220; leave to appeal dismissed by the Supreme Court of Canada  S.C.C.A. No. 448).
A group of 31 employees argued that they were discriminated against when they were ineligible to benefit from a buy-out package offered by the employer. The package contained an eligibility clause which made it available to full-time and part-time employees whose base rate of pay was greater than or equal to $10 per hour on January 30, 1993, and who had worked a certain number of hours during the prior 52 weeks. The complainant employees were excluded from taking part in the offer because they were on disability leave during the qualifying period and had not worked any hours. The employees argued that they were discriminated against on the grounds of physical and mental disability.
The panel allowed the complaint, which was then appealed up to the Alberta Court of Appeal (United Food and Commercial Workers, Local 401 v. Alberta Human Rights and Citizenship Commission (2003), 47 C.H.R.R. D/220; refused leave by Supreme Court of Canada). The union argued that it should not be equally liable for the discrimination because it had unequal bargaining power and had tried to accommodate the employees who were disabled. However, the Alberta Court of Appeal found that the resulting buyout package was part of equal negotiations between the employer and union. They had both developed the buyout package together and therefore were equally liable for its discriminatory effects.
Office and Professional Employees International Union, Local 267 v. Domtar Inc., (1992), 89 D.L.R. (4th) 305, Ontario Court of Justice (General Division)
Domtar hired Irene Gohm on contract as a laboratory technician. Part of the contract required her to work four-hour shifts on Saturdays. Ms. Gohm was a practising Seventh Day Adventist. She requested that Domtar allow her to work on Sundays so that she could observe her religious holiday on Saturday. Domtar agreed to this as long as the union approved it. The union said that Ms. Gohm could work on Sundays, but that Domtar would have to pay her time and a half as per the collective agreement.
The Ontario Court of Justice agreed with the Board of Inquiry decision, which found that the employer and the union were jointly liable for accommodating Ms. Gohm's religious commitments. While Domtar could have done more to find other accommodations, its request for help from the union was reasonable. The union could have agreed not to grieve Ms. Gohm's work schedule. The union failed to accommodate Ms. Gohm when it refused to allow her to work straight time on Sundays.
The union's duty to accommodate in the Domtar case was triggered by the company requesting help. A union in such a case may assess whether the requested accommodation would create an undue hardship to its members. If so, the union can argue this point with the employer and eventually with a court or human rights panel. However, as is shown in the Domtar case, an effect on the collective agreement will not by itself satisfy the union's duty to accommodate. The union may also argue that a solution that does not affect the collective agreement would better meet the employee's needs. In addition, if the employer chooses to use the least expensive method to accommodate an employee, but the accommodation has an undue effect on other employees' rights under the collective agreement, the employer may not have satisfied its duty to accommodate.
Accommodation in certain instances may involve bypassing seniority provisions in the collective agreement. However the solution in each case will depend on:
- the specific conditions of the case;
- how much the accommodation violates the collective agreement;
- what other alternatives are available; and
- whether the accommodation results in undue hardship to the union and its members.
Factors to consider in these types of cases include the:
- size of the workplace;
- impact on the collective agreement;
- impact on member morale;
- financial cost; and
- interchangeability of work force and facilities.
Simply maintaining the integrity of the collective agreement will not be enough to justify continued discrimination of a member through lack of accommodation.
An employee has responsibilities in seeking an accommodation such as:
- bringing the needed accommodation to the attention of the employer, and possibly the union if it can assist in accommodation efforts;
- allowing a reasonable amount of time for the employer and union to reply to a request for accommodation;
- providing relevant medical documentation as reasonably required;
- exploring several options for accommodation with the employer and union, including the pros and cons of each option;
- accepting reasonable accommodation and not expecting an instant or perfect solution; and
- letting the employer and union know if the chosen accommodation needs to be modified once it is in place.
Refer to the Commission interpretive bulletin Duty to Accommodate for more information about the rights and responsibilities of an employee in an accommodation situation.
Drug and alcohol dependencies
Drug and alcohol dependencies-as well as perceived dependencies-are forms of disability under the AHR Act. A union may be found liable if it fails to accommodate a member who has a drug or alcohol dependency to the point of undue hardship, or if it blocks the accommodation process. For more information on drug and alcohol dependencies in the workplace, see the Commission's information sheet Drug and alcohol dependencies in Alberta workplaces.
Individuals often file a grievance at the same time they make a human rights complaint. In these cases, the arbitration board and human rights tribunal have to decide if they can both hear the complaint, if their powers to hear overlap each other, or if one has the exclusive right to hear the complaint. To determine a question of jurisdiction between competing tribunals, courts will examine all of the facts as they are applied to the legislation. The issue of jurisdiction is considered case by case depending on:
- the relevant statutes; and
- the nature of the dispute and whether the legislation suggests that the issue falls exclusively to either tribunal.
The Alberta Court of Appeal considered the issue of jurisdiction in two cases:
Calgary Health Region v. Alberta (Human Rights and Citizenship Commission), 2007 ABCA 120
Amalgamated Transit Union, Local 583 v. Calgary (City of), 2007 ABCA 121
The Calgary Health Region decision involved a nurse who was laid off from work. She alleged that she was dismissed because of a physical or mental disability. The union filed a grievance on her behalf, while she made a complaint with the Commission. The nurse's grievance focused on workplace events including issues with her supervisor, hours of work and job security.
The Amalgamated Transit Union decision involved the termination of Annette Bracey, a preventative maintenance person, who allegedly used profane language in a discussion with her supervisor. In a subsequent meeting held to discuss the incident, Ms. Bracey became emotional and stormed out of her foreman's office.
The Alberta Court of Appeal reviewed these two decisions and found that the Commission had concurrent jurisdiction with the labour arbitration boards. This means that, in certain circumstances, both the Commission and the arbitration board can hear a dispute that involves human rights issues.
In certain circumstances the Commission may decide to adjourn their investigation until the labour arbitration board has made a ruling. In addition, the Commission will not re-hear human rights disputes which have already been decided upon by an arbitration board.
While a member may make a complaint with the Commission, or request a grievance through arbitration, they still need to inform the employer and the union of the discrimination when it arises. This allows them the opportunity to address the discrimination and provide needed accommodations.
A complaint must be made to the Commission within one year after the alleged incident of discrimination.
Revised: March 28, 2013