This week, the Centre for Addiction and Mental Health (CAMH) launched its awareness campaign aimed at addressing mental health in the workplace, and urging corporations to champion this pressing issue. With the release of its Workplace Mental Health Playbook for Business Leaders http://www.camh.ca/en/health-info/workplace-mental-health-playbook-for-business-leaders, CAMH hopes to provide a path to more effective solutions and better outcomes for employees and for businesses. Based on its research, the Centre found that by the age of 40, half of Canadians have – or have had – a mental illness, 30% of disability claims in Canada are due to mental illness, and the cost of disability leave for mental illness is about double the cost of leave dur to physical illness.
One of the many challenges in addressing mental health at work, is the difficult conversations that must take place when the employer suspects that an employee is experiencing mental health struggles. The continuing social stigma associated with mental health issues will often prevent an employee from disclosing her disability, and makes these conversations between the employer and employee difficult to navigate. In its Playbook, CAMH states that “three-quarters of working Canadians say they would either be reluctant to admit or would not admit to a boss or co-worker that they were experiencing a mental illness.” The top reason for such reluctance is fear – of being judged or facing negative consequences, including losing their job.
Additionally, due to the nature of some mental illnesses, an employee may be unable to identify that she has a disability or requires support. The question arises then, if the employee does not speak up and disclose a mental illness, does the employer have a duty to accommodate?
Generally, in order to trigger the duty to accommodate, the disabled employee is expected to inform the employer that she has disability-related needs and cooperate in providing as much information as possible in order to arrive at an appropriate, reasonable and respectful accommodation. However, recent arbitral and human rights tribunal decisions have held that there will be situations where, even in the absence of any direct indication from the employee that accommodation is needed, the employer may have a “duty to inquire” into whether the employee has a disability. One of the questions that then becomes the subject of litigation is whether the employer ought reasonably to have known that the employee had a disability that may have affected her work performance. If the answer to this is “yes”, then the employer will be expected to make inquiries of the employee before taking any adverse action.
In a recent arbitration decision involving an Ontario nurse who had her employment terminated for theft of drugs and gross misconduct, Arbitrator L. Steinberg addressed the employer’s duty to inquire. (The Regional Municipality of Waterloo (Sunnyside Home) and ONA (DS), 2019 CarswellOnt 443 (Ont Arb). The Union argued that the Employer had failed to make the necessary inquiries into the Grievor’s health in the weeks and months prior to her dismissal. In this regard, it pointed to concerns that had been raised by the nurse’s co-workers regarding changes in her appearance (weight loss, wearing the same uniform for 5 days), her interactions with co-workers (using profanity with staff) and other odd behavior.
Arbitrator Steinberg adopted the Union’s argument and held that the Employer had breached its procedural duty to accommodate the Grievor. Aside from finding a failure on the part of the Employer to give any thought or consideration to accommodation issues, he also noted:
 … The procedural duty to accommodate was also violated when the employer failed to take any steps or make any inquiries of the grievor, in the face of some obviously troubling observations of and reports about the appearance and behaviour of the grievor, which should have caused the employer to perceive that a disability of some kind might be present.
While this was the extent of Arbitrator Steinberg’s analysis on the duty to inquire, his reference to the Ontario Human Rights Commission’s Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions is instructive. He also cited the Ontario Human Rights Tribunal decision in Sears v Honda of Canada Mfg 2014 HRTO 45, at, wherein the Tribunal stated:
the procedural duty to accommodate indicates that an employer cannot passively wait for an employee to request accommodation where it is aware of facts that indicate that the employee may be having difficulties because of disability; there is a duty to take the initiative to inquire in these circumstances.
Finally, Arbitrator Steinberg referred to two Ontario arbitral decisions which touch on the duty to inquire: Hamilton Health Sciences v ONA (Pinsonneault) 2013 CarswellOnt 17006 (Ont Arb) (Herman) and Direct Energy v CEP, Local 975  OLAA No 216 (Ont Arb) (Burkett).
While employers are not expected to be mind-readers, recent cases illustrate that there is a developing expectation that they not be passive recipients of information that is very often difficult and painful for employees to disclose. This is consistent with the growing recognition that employers need to take active steps to ensure that their workplaces are safe in all respects, including creating an environment which minimizes the stigma associated with such disclosures. According to the CAMH, “giving people the feeling that the workplace is a safe and supportive environment goes a long way to more open conversation.” Given that leaders are essential agents of change in the workplace, the CAMH is calling for mandatory mental health training at the leadership level, including middle management. Given the developments in the accommodation law regarding an employer’s duty to inquire, such training should also address the need to be reasonably attuned to changes in employees’ behavior, stressors in their lives, references to substance use, and concerns raised by their co-workers. And perhaps most importantly, mental health training should assist leaders in creating work environments that are conducive to having open conversations with highly vulnerable employees.
In December 2015, the Ontario Human Rights Commission launched its new Policy (click for link) on preventing discrimination based on Creed.
In it, the Commission sets out several “overlapping and mutually reinforcing principles” that make up the ubiquitous duty to accommodate. One of these principles is Integration and Full Participation. This is particularly important when considering accommodations within the public school system given that public education in a multicultural and multi-faith milieu is thought of as an effective tool for integration. That is, in accommodating a student, it makes intuitive sense to craft an accommodation that maximizes her continued participation and integration within the school community, as opposed to isolating or singling her out among her peers. In its Policy, the Commission provides an example of a student who, for religious reasons is not able to participate in music instruction. The Commission offers a number of examples of ways in which the student can continue to take part in the music program through providing individualized accommodations short of a full exemption. For example, the student could take part in the non-performance based aspects of the music curriculum, such as music history, theory and critical analysis.
While the goal is certainly full participation and integration, the Commission also recognizes that in some circumstances, exempting individuals with a creed based claim from an activity, or in this case a lesson – is what it takes to achieve and experience equality. Put another way, full equality in some situations, cannot be be achieved through forced participation. In this way, the OHRC Policy recognizes the possibility that creed based exemptions may in fact be a form of required accommodation. The Supreme Court of Canada in Eaton v. Brant Board of Education  1 SCR 241 put it this way: “While integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality…..Integration can be either a benefit or a burden depending on whether the individual can profit from the advantages that integration provides.” (para 69)
Is exposure to divergent views an adverse impact?
Of course the starting point for any accommodation analysis is asking whether the student will in fact be adversely affected based on her or his creed due to an organization’s rule or policy – in the context of this discussion- a mandatory course of study. Setting aside the issue of whether we are talking about the student’s creed or that of her parents’ for the moment – and assuming that the school instruction is in direct contravention with religious values and teachings held by the “family”, does this translate automatically into adverse impact for the student? That is, when a student is faced with views that are divergent from those being taught at home or within his or her religious community, is this necessarily an infringement on her freedom of religious belief and practice or even those of her family? This seems to be the crux of the issue.
The Supreme Court of Canada addressed a similar issue in S. L v. Commission scolaire des Chene  1 SCR 235. In that case, two sets of Catholic parents sought an exemption for their children with respect to Quebec’s newly introduced Ethics and Religious Culture Program that had become mandatory in 2008. The Program sought to teach students about the beliefs and ethics of different world faiths in a neutral manner and became mandatory for both private and public schools. The ERC Program was meant to be a bridge builder, facilitating understanding and creating safe spaces for all students. The parents in S.L. however, felt otherwise, arguing that there was nothing neutral about teaching world religions to students who were being raised in faith based homes. After the parents’ request for an exemption was denied by the School Board’s Council of Commissioners, they turned to the courts.
In considering the parents’ claim that their religious freedom had been infringed by the Board’s denial of their request, the Court held that, “…it is not enough for a person to say that his or her rights have been infringed. The person must prove the infringement on a balance of probabilities. This may of course involve any legal form of proof, but it must nonetheless be based on facts that can be established objectively.”(para 23) Although the parents sincerely believed that they had an obligation to pass on the precepts of the Catholic faith to their children, they needed to go one step further and show, based on objective proof, how exposing their children to the ERC instruction interfered with their ability to do so.
The parents also argued that exposing children “to various religious facts is confusing to them.” (para 38) But according to the Court, “[t]o claim that the general presentation of various religions may have an adverse effect on the religion one practices, it is not enough to state with sincerity that one is a practicing Catholic.” (para 27)
Requiring the parents to show actual proof that the course caused harm or infringed upon the parents’ religious freedom effectively cuts short or shuts down the essential conversation, which is more about values than legal proof. The essence of the issue is not about a balance of probabilities. After all, what possible evidence could a parent put forward to show that what her son or daughter was exposed to at school is impeding her ability to essentially parent? Its hard to imagine what such evidence would look like. Its not so hard, however, to imagine how the opposing side would successfully poke countless holes through it – whatever form it may take.
Now, turning to the potential confusion that may result from exposing students to ideas that don’t align with their families’- what do we make of it and where does such “cognitive dissonance” fit within considering a parent’s request for an exemption from mandatory instruction? Key passages regarding this concept come from a case about whether a school board rightfully disallowed books depicting same sex parented families into its Kindergarten and Grade 1 classrooms.
In Chamberlain v. Surrey School District No. 36 (2002), a Kindergarten teacher sought the consent of the local school board to add three books that depicted same-sex parent families to a list of approved teaching resources. Unless the board approved the books, Mr. Chamberlain could not use them in teaching the Family Life Education curriculum. The board denied Chamberlain’s request because it did not want to delve into the controversy it knew would result, based on the religious views and anticipated objections from some parents. The Board was also concerned that the use of the three books in the classroom might teach values to children divergent to those taught at home, confusing the children with inconsistent values.
The Supreme Court of Canada ruled that the Board’s decision not to approve the proposed books was unreasonable because it had failed to act in accordance with the School Act and considered factors outside of its mandate. Of direct relevance to our case is the Board’s consideration of the children’s exposure to “cognitive dissonance.” That is, the Board’s consideration of whether children should be exposed to information and ideas with which their parents disagree.
Chief Justice McLachlin shows no sympathy for such an argument and doesn’t mince words in saying that not only do children at a very young age need to be aware of the differences around them, but they are also required to learn to respect the rights and values of others. In the Court’s view this is simply part of “growing up.”
Indeed, much emphasis is placed on experiencing difference as a means of teaching tolerance and respect.
“The cognitive dissonance that results from such encounters is simply a part of living in a diverse society. It is also a part of growing up. Through such experiences, children come to realize that not all of their values are shared by others. ….Exposure to some cognitive dissonance is arguable necessary if children are to be taught what tolerance itself involves.” (para 65 and 66)
“Children encounter [some cognitive dissonance] every day in the public school system as members of a diverse student body….The cognitive dissonance that results from such encounters is simply a part of living in a diverse society. It is also a part of growing up. Through such experiences, children come to realize that not all of their values are shared by others.”
“The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the (Quebec) government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s.2(a) of the Canadian Charter and s. 3 of the Quebec Charter.” (para 40)
Not all burdens on religious practices are unconstitutional
Interestingly, the Court also seems to remind us that there is no constitutional guarantee that practising one’s religion will be easy. Quoting from a previous case – “s. 2(a) does not require the legislature to refrain from imposing any burdens on the practice of religion.”(para 25). We know from caselaw that not all burdens will be unconstitutional. Individuals, families and organizations will face obstacles to preserving and practicing their sets of beliefs and not all such obstacles can be called out as unconstitutional. Perhaps they are- put simply – the cost that we all pay in order to practice freely in a pluralistic society.
The Court is quick to point out, however, that such “diversity training” is not a form of indoctrination. That is, teaching tolerance through exposure to differences does not mean teaching children what to believe is correct or moral or right. “..the demand for tolerance cannot be interpreted as the demand to approve of another person’s beliefs or practices. When we ask people to be tolerant of others, we do not ask them to abandon their personal convictions. We merely ask them to respect the rights, values and ways of being of those who may not share those convictions. The belief that others are entitled to equal respect depends, not on the belief that their values are right, but on the belief that they have a claim to equal respect regardless of whether they are right…. Children cannot learn this unless they are exposed to views that differ from those they are taught at home.” (para 66)
But therein lies the rub. At what age are children able to make a distinction between being exposed to different values and being taught that such perspectives are in fact correct and to be adopted? Moreover, how can a parent trust that such a nebulous distinction is being skillfully negotiated by the classroom teacher?
The struggle associated with raising one’s children against a tide of values that do not align with those being taught at home is real. It is incumbent upon schools to open up the necessary conversations with parents, not only about how best to accommodate their children, but also about how to safely and respectfully expose them to the cognitive dissonance that they will continue to face throughout their lives.