What is the connection between environmental sensitivities and human rights?

Transcription

1 Guidelines for Accommodation of Environmental Sensitivities (As of June 15, 2011) Guidelines are not law: These guidelines reflect the Newfoundland and Labrador Human Rights Commission s interpretation of the provisions of the Newfoundland and Labrador Human Rights Act 2010 ( the Act ) and various legal decisions from across Canada with respect to environmental sensitivities. They are subject to decisions by Boards of Inquiry and the Courts and should be read in conjunction with such decisions and with the specific language of the Act. Readers should be aware that this is a rapidly changing area of law, which may evolve as new decisions emerge. If there is any conflict between these guidelines and the Act, the Act will prevail. Any questions regarding these guidelines should be directed to Commission staff. These guidelines should not be substituted for legal advice. Introduction Environmental sensitivities affect a growing number of Canadians. Individuals with environmental sensitivities have a variety of adverse reactions to things in their environment that might not affect others. The term environmental sensitivities encompasses a variety of reactions an individual may have to chemical, biological or electromagnetic agents. The terms Idiopathic Environmental Intolerance ( IEI ) or Multiple Chemical Sensitivity ( MCS ) are also used to describe the constellation of symptoms surrounding environmental sensitivity. There is a very wide range of symptoms that fall into the category of environmental sensitivities and susceptibility varies across individuals. Common agents that trigger adverse reactions in people with environmental sensitivities include, but are not limited to, pesticides; second hand smoke; volatile organic chemicals such as solvents, perfumes, formaldehyde, and petrochemicals; building contaminants, including gases from materials used in construction and finishes and cleaning products; poor ventilation; vehicle exhaust; and biologicals such as mould, pet dander, etc. Some individuals may also have reactions to electromagnetic radiation or currents. What is the connection between environmental sensitivities and human rights? Discrimination In Newfoundland and Labrador, the Human Rights Act protects individuals from being discriminated against in a number of areas of life on the basis of what are called

2 prohibited grounds. Discrimination occurs when a distinction/differential treatment is imposed on a person the basis of one of the prohibited grounds. 1 For example, refusing to hire a person because she is pregnant would be discrimination. 2 One of the prohibited grounds under the Act is disability. 3 Environmental sensitivities have been recognized as a disability in a number of jurisdictions across Canada (and in other countries around the world). Therefore, people who have environmental sensitivities will likely be protected under NL human rights legislation. 4 Human rights legislation specifies that a finding of discrimination does not require intent. 5 That means that a party can be found to have discriminated against someone without doing so on purpose or with the intention to cause harm to that individual. Where are people protected? The Human Rights Act protects individuals from discrimination in a number of different contexts. People with disabilities are protected from discrimination with respect to the provisions of goods, services, accommodation and facilities 6 ; in the right to occupy commercial or dwelling units 7 ; and in the context of their employment. 8 Perceived Disability If a person is treated differently because he/she is perceived to have a disability, this could also be discriminatory. It does not matter if the person does not actually have a problem. For example, where, without further evaluation and investigation about possible accommodations, the employer makes the assumption that a person with environmental sensitivities is unable to work and suggests the employee should look for another job; this is discriminatory conduct. Duty to Accommodate: One rule does not fit all. If a person has environmental sensitivities that constitute a disability and that affect them in areas protected under the Act, they have a right to request accommodation of their 1 Prohibited grounds include: race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability, disfigurement, sex, sexual orientation, marital status, source of income and political opinion. See: Human Rights Act, S.N.L 2010, c. H-13, s.9(1). 2 This is discrimination on the basis of gender. See: Human Rights Act, S.N.L 2010, c. H-13, s.9 (2). 3 Human Rights Act, S.N.L 2010, c. H-13, s.9 (1). 4 See Brewer v. Fraser Milner Casgrain LLP (2008) ABCA 435, CHRR Doc (A.C.A.), Hemingway v. Regina School Div. No. 4, (2006) CHRR Doc (S.H.R.T.), or Hutchinson v. Canada (Minister of the Environment) 2003 FCA 133 (F.C.A.). 5 Human Rights Act, S.N.L 2010, c. H-13, s Human Rights Act, S.N.L 2010, c. H-13, s Human Rights Act, S.N.L 2010, c. H-13, s Human Rights Act, S.N.L 2010, c. H-13, s. 14.

3 needs. It is the responsibility of the person/business who is the recipient of the request to make all reasonable efforts to accommodate the person with environmental sensitivities, whether the recipient is a landlord, employer, or service provider. That person must then explore and assess all options available to see if the individual can be accommodated without undue hardship. What is Accommodation? Accommodation means making changes/adaptations to meet an individual s needs. It may mean, for example, implementing a no-scent policy in a place of business, making changes to the ventilation system in an apartment building, or removing carpets in an employee s office. Other examples are provided below. The individual requesting accommodation also has responsibilities. A person requesting accommodation has a duty to provide relevant information about their specific needs. Where an option for accommodation is presented, the person requiring accommodation does not have a right to refuse an option that reasonably meets his/her needs. The accommodation need not be the person s first choice of available options in order to be considered reasonable under human rights legislation 9. Accommodation is required to be reasonable, not perfect. Accommodation is best served where parties communicate their needs effectively and cooperatively. Compromise is necessary on both sides so that parties can achieve their objectives. Undue Hardship: What is the Extent of the Duty to Accommodate? The duty to accommodate persons with disabilities continues up to the point of undue hardship. Undue hardship is a legal term, the threshold of which varies depending on the facts of the particular situation. Accommodation to the point of undue hardship means that the party making the accommodation will be expected to absorb some hardship. A party will generally not be able to justify refusal to accommodate a person simply because there will be some cost associated with doing so. Undue hardship arises at the point where the extra cost or safety risk is so high that the business cannot reasonably bear it. 10 What constitutes undue hardship is different in every situation. A court or board of inquiry will usually look at a number of factors, including how much the accommodation will cost, the size of the enterprise, what effect the accommodation will have on other employees or the collective agreement, whether restructuring is viable, and whether other 9 See Hutchinson v. Canada (Minister of the Environment) 2003 FCA 133 (F.C.A.). 10 In Hemingway v. Regina School Div. No. 4, (2006) CHRR Doc (S.H.R.T.), the Tribunal found that the substantial costs for construction of a separate eco classroom for a teacher with environmental sensitivities would be undue hardship.

4 alternatives are available. 11 When determining whether a request for accommodation is reasonable or will constitute undue hardship in a specific circumstance, it is advisable to seek legal advice. Accommodating Environmental Sensitivities Because environmental sensitivities can be so wide-ranging and specific to each individual, what constitutes reasonable accommodation will be different in virtually every case. Individualized evaluation will be necessary, and the individual may be asked to provide medical information to support the need for accommodation. However, case law and literature surrounding this issue has included discussion of the following attempts to accommodate persons with environmental sensitivities: The establishment of no-idling policies, scent-free policies, and non-smoking policies Carpet-free work spaces or apartments Moving an employee s office to reduce exposure The agreement of a condo-board to allow renovations contrary to condo board rules (i.e. not requiring wall to wall carpet for a owner with severe allergies) Choosing eco-friendly or low-scent cleaning products for common areas or workplaces Flexible work arrangements (i.e. allowing the individual to work from home or work different hours to limit exposure to the public) Elimination/reduction of chemical spraying, or notification of the individual beforehand to allow them to avoid the area Providing air filters or other air-purification devices Windows that open to allow fresh air Providing personal protective equipments (masks, gloves, etc.) Additional Challenges Accommodating environmental sensitivities may be more challenging than accommodating some other disabilities, because in many cases where environmental sensitivities are involved there is the potential to impact on, and require the cooperation of, other people or groups. For example, a no-scent policy in a workplace would require the cooperation of coworkers and members of the public who visited the workplace, and a nosmoking policy in an apartment/condo would require other tenants and their visitors to refrain from smoking. Education of third parties will be central to obtaining cooperation. The question that most often arises in situations like those above is what happens where voluntary participation is unsuccessful (i.e. where a coworker continues to wear scented products or another tenant continues to smoke). The answer is usually dependent 11 See Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 (S.C.C.).

5 on the particular circumstances of the case, but there is case law to support the idea that a service provider/employer/landlord will have to take steps to address the 3 rd party s noncompliance or face reprisal 12, 13, 14. In a landlord-tenant case 15, the Ontario Rental Housing Tribunal ruled that another tenant s smoking prevented the complainant landlord from reasonable enjoyment of her property. The Tribunal ordered the tenant to cease smoking or face eviction. Relevant Provisions, Newfoundland and Labrador Human Rights Act Definitions s. 2 (c) disability means one or more of the following conditions: i) a degree of physical disability ii) a condition of mental impairment or a developmental disability, iii) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or language, and iv) a mental disorder; Prohibited grounds s.9 (1) For the purpose of this Act, the prohibited grounds of discrimination are race, colour, nationality, ethnic origin, social origin, religious creed, age, disability, disfigurement, sex, sexual orientation, marital status, family status, source of income and political opinion. (3) Where this Act protects an individual from discrimination on the basis of disability, the protection includes the protection of an individual from discrimination on the basis that he or she a) has a disability; b) is believed to have or have had a disability; or 12 In Brown v. Strata Plan LMS 952 [2005] B.C.H.R.T.D No. 137 the issue of whether a condo board had to enforce a no-smoking policy upon condo owners and guess was considered, but not decided upon. 13 In Ontario (Ministry of Correctional Services) and O.P.S.E.U. (Hyland) (Re), 115 L.A.C. (4 th ) 289 (Ont. Cr. G.S.B.), the board held that the employer failed to accommodate the grievor by not enforcing the nosmoking policy and by requiring the grievor to identify other employees who were violating the policy. 14 In Maljkovich v. Canada, [2005] F.C.J. No (F.C.), the Court held that CSC s failure to ensure the applicant was not exposed to second-hand smoke violated s. 70 of the Corrections and Conditional Release Act, given his allergy to tobacco smoke. The Court ordered financial compensation. 15 Feaver v. Davidson, [2003] O.R.H.T.D. No. 103.

6 c) has or is believed to have a predisposition to developing a disability. Goods, services, accommodation, and facilities 11. (1) A person shall not, on the basis of a prohibited ground of discrimination, (a) deny to a person or class of persons goods, services, accommodation or facilities that are customarily offered to the public; or (b) discriminate against a person or class of persons with respect to goods, services, accommodation or facilities that are customarily offered to the public.... Right to occupy commercial and dwelling units 12. (1) A person, directly or indirectly, alone or with another, by himself or herself, or by the interposition of another, shall not, on the basis of a prohibited ground of discrimination, (a) deny to a person or class of persons occupancy of a commercial unit or a self-contained dwelling unit; or (b) discriminate against a person or class of persons with respect to a term or condition of occupancy of a commercial unit or a self-contained dwelling unit. Discrimination in employment s.14 (1) An employer, or a person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment on the basis of a prohibited ground of discrimination Human Rights Act, S.N.L 2010.