Work on construction sites is often physically demanding and frequently poses a risk of injury. In this demanding and potentially dangerous environment, what are the obligations of construction employers to accommodate the physical, mental, religious or cultural circumstances of their employees?
The law imposes on all employers a duty to accommodate employees, meaning the employer must take reasonable steps to accommodate the employee when the employee has suffered or will suffer discrimination from a working rule or condition.
Courts have held that the goal of this duty is achieved by preventing the exclusion of individuals from employment opportunities that are not based on their actual abilities, but on attributed ones.
If an employee is otherwise fit for work, he or she cannot be unfairly excluded where working conditions can be adjusted without undue hardship on the employer.
Failure to meet the duty to accommodate on the part of an employer can result in a civil claim for wrongful dismissal or in a human rights complaint.
Under the B.C. Human Rights Code a person must not without a reasonable justification discriminate against a person or class of persons regarding any accommodation, service or facility, customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.
This means that construction employers need to take care to ensure that any rules, policies or practices they put in place are based on bona fide occupational requirements and do not infringe upon any ground of discrimination.
Employers must also ensure that they are flexible enough with each employee to allow accommodation for the particular circumstances of that individual when discrimination is potentially at issue.
By way of an example, a rule that no weapons or knives are allowed on a construction site may seem uncontroversial.
If however, a Sikh employee wears a Kirpan (a small sword or dagger) during work at a site, there is very likely a duty to accommodate the employee by allowing him or her to wear the Kirpan despite that rule. The reason for this is that the Kirpan is a significant religious symbol, the wearing of which is mandatory for initiated Sikhs.
Accordingly, only if the Kirpan was a danger in relation to the employee’s specific tasks on site would a prohibition on wearing the Kirpan potentially be justified.
Balancing the rights of individuals against the needs of the workplace can be challenging for employers.
Achieving that balance on the construction work site can be especially difficult by reason of the inherent physical demands and safety risks of most construction work places.
In this regard, WorkSafeBC and the BC Human Rights Tribunal provide useful guidance on their websites to assist employers in navigating this difficult area.
Construction employers should be aware of the specific issues that effect construction, tread carefully, and seek advice where appropriate. •
Norm Streu is a former chair of the VRCA board of directors, a lawyer and an entrepreneur. Christopher Hirst is managing partner and leader of the construction and engineering group at Alexander Holburn Beaudin + Lang LLP.