In coming up with a resolution to a complaint, a human rights commission will try to balance the interests of the employee and the company. For a better chance of success, employees should request remedies that are reasonable and inexpensive. “There’s a difference between asking them to steam clean all the carpets, versus asking a company to make drastic changes,” says Wilkie. For example, a complete overhaul of the building’s ventilation system is likely beyond a company’s responsibility. “There will be consideration of the cost that’s involved, and the impact it would have on the organization.”
However, there is evidence that an organization will at least have to explore all options to alleviate the employee’s job-related health difficulties, and to prove that any particular accommodation would present “undue hardship” for the company. In the case of the asthmatic cashier versus the Saskatchewan Indian Gaming Authority, the human rights commission initially rejected the woman’s claim that she was discriminated against because she couldn’t work in a smoke-filled environment.
However, the Saskatchewan Human Rights Tribunal later ruled that the commission had been too quick to dismiss the idea of transferring the woman to a job at head office, or of creating a smoke-free area of the casino. It was up to the gaming authority to provide a cost-benefit analysis of these possible solutions before a decision could be made.
In Canada, every province also has an employment standards act, or an equivalent, with a provision that the workplace must be safe. This would refer to things like having safety straps if you’re high up on a building doing external work, or “anything that requires general safety measures when you’re doing an unsafe job,” says Wilkie. A few individuals have tried to use such provisions to argue that the environment of the workplace, coupled with their allergies or asthma, has led to unsafe working conditions. But few such cases have succeeded because there isn’t objective standard of where the line should be drawn, and Wilkie notes that what is an acceptable environment for one individual may not be for the next.
Taking a company to a human rights commission should, of course, only come after more conciliatory approaches have failed. As Haromy at the Ontario Lung Association stresses, education is sometimes the most important strategy. “A lot of people who aren’t affected by something, whether it’s perfume or nut allergies, are often not able to understand it,” he says. The better able an employee is to communicate to his manager, to human resources and to colleagues the severity of his asthma or allergy, and how simple steps such as not wearing perfume or replacing carpets can make a huge difference to his health, the higher the chance that others will comply.
But until the day all companies are as accommodating as S.C. Johnson and Son or The Royal College of Physicians and Surgeons, Canadians with asthma and allergies can at least take comfort in knowing our human rights legislation is there to protect them.
- On the Job with Allergies: In the fast-paced world of the business lunch and the musty office, the allergic employee finds work a risky business.
First published in Allergic Living magazine.
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