Because the human rights process is fairly slow, there is often an attempt to come up with a quick resolution with the company, says Wilkie. This is particularly true when the person is still employed by the firm.
In British Columbia, with Ontario soon to follow suit, a complainant has direct access to a tribunal – there is no initial investigation stage. Wilkie says it’s advisable to have a lawyer for the tribunal process, and Ontario will be making resources available for legal counsel.
Still, “there’s a difference between what you ideally might want and practically what you may get” through the human rights commission, Wilkie warns. That’s because it’s a question of balance between what the employee is seeking, and what is reasonable to expect the employer to do.
Beach at the University of Alberta gives the example of a small auto body repair shop. If there are only a handful of employees, and one begins to have asthma attacks from the paint, it might be considered undue hardship for the owner to find that employee another job within the company. However, if it’s a national chain of auto body repair shops, and the same thing occurs, the company may be expected to find an alternative position for the auto body spray person.
One accommodation that is fairly inexpensive to implement, and which many companies, hospitals and universities have put into practice, is the creation of a scent-free environment. This usually involves either a requirement or a recommendation that employees and visitors not wear perfumes, avoid using scented shampoos and lotions and refrain from bringing flowers, potpourri or other scented items to work. Also, the company may implement a change in the cleaning supplies that they use.
An early leader in the scent-free approach was The Royal College of Physicians and Surgeons of Canada. In 1999, its Ottawa offices instituted a scent-free guideline in response to comments from various employees who said fragrances were giving them asthma attacks or migraine headaches. The guideline, called “No Scents is Good Sense,” is posted widely throughout the building, a former monastery overlooking the Rideau Canal, and also reissued by e-mail regularly as a reminder. The guideline is mentioned to every potential new employee in job interviews, and raised during orientation.
During renovations or maintenance that create strong odours, the college will allow employees to relocate within the building or work from home. In the human resources office, one employee is allergic to flowers – so all plants have been removed from the area.
Although “No Scents is Good Sense” is only a guideline, rather than a policy, director of human resources Bonnie Seidman says it’s followed well. She says the college decided not to implement an enforceable policy, under which disciplinary action could be taken against employees who don’t obey, after consulting other companies with similar rules. One issue was that the college gets many visitors throughout the year, many of whom come to take exams. Although guests to the college are encouraged in letters not to wear scented products, “we cannot control the public coming in,” Seidman says.
Some organizations, however, do strive to make their buildings scent-free by way of policy. Kingston General Hospital banned scents in July 2005 because, as its website states, “we all have the right to breathe clean air and not to suffer unnecessary health problems that are brought on by chemical fragrances.” Offenders will be asked to wash, or to go home if they don’t comply.
Also, many types of flowers, such as lilacs, lavenders and peonies, are no longer allowed in the hospital. “There are signs that are posted throughout the hospital, and they apply to both visitors and to staff,” says Joanna Noonan, manager of occupational health and safety at the hospital.
Wilkie, who recently co-authored a report for the Canadian Human Rights Commission called “Accommodation of Environmental Sensitivities: The Legal Perspective,” says that having a scent-free policy becomes much more complicated to enforce when the company provides services to the public. “How can you require everybody who is buying their groceries to not use scented products, versus a small office where you only have to require the staff not to do it? The issue of what you would require of a customer is still pretty much undetermined,” she says.
But what about the right of a colleague to wear that bold perfume or strongly scented deodorant within the office? Although respecting an employee’s personal desires is obviously going to be a consideration of the employer, Wilkie says that such individual preferences are not taken into consideration when a human rights commission is deciding what is appropriate accommodation for a disability.
“There is no right to wear perfume,” Wilkie says simply. Her research showed that a Canadian employer can be expected to enforce no-scent rules in the same way that a mandatory dress code would be instituted. For example, the first violation would not lead to termination, but perhaps to a warning, or being written up. The second violation might result in a suspension, with the employee perhaps being fired on the third violation.
The issue is more complex, however, when it becomes a balancing of rights such as a blind person having a service animal to help with mobility, and someone being allergic to that animal. In 2004 the Canadian Transportation Agency found that Air Georgian was right to refuse the boarding of three passengers with guide dogs because the pilot had a severe allergy to dogs. Many factors were considered, including the unavailability of other pilots and the small size of the aircraft.
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