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Printable version
Mandatory drug testing policy ruled discriminatory by Federal Court of Appeal
The Toronto Dominion Bank is the latest major Canadian employer to suffer a legal setback following a complaint against its substance abuse control program. In Canadian Human Rights Commission v. Toronto Dominion Bank (July 23, 1998), the Federal Court of Appeal has ruled that the Bank's policy of requiring newly-hired employees to undergo urine tests constitutes a prohibited discriminatory practice.
THE POLICY
The case dates back to 1991, when the Canadian Civil Liberties Association brought a complaint to the Canadian Human Rights Commission alleging that the policy discriminated on the basis of disability, that of perceived drug dependence.
The principal features of the policy were
- the requirement, referred to in the Bank's employment application forms as a condition of employment, that all new and returning employees submit to a urine test within 48 hours of accepting a job offer;
- dismissal of new and returning employees who refused the test;
- rehabilitation services, paid for by the Bank, for drug-dependent employees who tested positive, with persistent refusal to co-operate in rehabilitation or unsuccessful rehabilitation being grounds for dismissal;
- a risk of dismissal for users of illicit substances after three positive tests.
TRIBUNAL: DRUG TESTING POLICY NOT DISCRIMINATION
The Canadian Human Rights Tribunal dismissed the complaint, holding that the policy did not constitute a discriminatory practice. According to the Tribunal, because the policy was a condition of employment, if an employee refused to submit to the policy and was terminated as a result, the termination was for a breach of a condition of employment, not for perceived drug dependence.
The Tribunal noted that the Bank did not terminate employees who tested positive, but merely required another test. After a second positive test, counselling or treatment was offered. While employees were terminated after the third positive result, this was not because of their perceived drug dependence, but rather for persistent use of illegal drugs.
The Commission applied for judicial review of the Tribunal's decision. A Motions judge set aside the decision, and the Bank appealed the judge’s ruling to the Federal Court of Appeal.
FEDERAL COURT OF APPEAL: POLICY DISCRIMINATES - DIRECTLY AND INDIRECTLY
A majority of the Court dismissed the Bank's appeal. However, the two judges in the majority arrived at their conclusions by different legal routes.
Robertson J. held that the policy was most appropriately characterized as direct discrimination because it directly targeted the protected group of drug dependent persons. In cases of direct discrimination, a practice under challenge can be salvaged as a bona fide occupational requirement if the employer establishes that it was imposed in good faith and that it is reasonably necessary (i.e., that the policy is rationally connected to the work and there are no other less intrusive alternatives available).
The Bank gave three reasons why the policy was necessary: the contention that, since illegal drug use was prevalent in society, it must be prevalent in the banking industry; the correlation between illegal drug use and crime; and the effect of drug use on job performance. Robertson J. rejected all of these claims as unsupported by the evidence. As well, Robertson J. noted, another more reasonable alternative was available to the Bank: simple observation of employees' job performance.
McDonald J. held that the policy amounted to indirect or adverse effect discrimination because, while it applied equally to all new and returning employees, it impacted adversely on drug-dependent employees. As well, the policy was not rationally connected to its objective: it was under-inclusive in that it did not apply to all employees, but only to new and returning employees; and there was no evidence that a trace amount of drugs in one's system meant that one was unproductive or likely to engage in work-related crime. Finally, the policy did not meet the duty of reasonable accommodation. This was because drug testing occurred even when there were no problems with a drug-dependent employee's work performance:
"If an employee is not abusing drugs while at work, and his or her work performance meets the employer’s job requirements, then the disability poses no problem. If, however, an employee exhibits poor performance and the Bank believes it may be related to a drug dependency, then (and only then) should the Bank be able to test the employee and, if necessary, send the employee to some form of rehabilitation or counselling program. To comply with the reasonable accommodation component an employee cannot be tested unless after receiving treatment his or her work performance remains inadequate."
As a result, the Court sent the matter back to the Tribunal on the basis that the policy constituted a prohibited discriminatory practice.
IN OUR VIEW
As in the case of Entrop v. Imperial Oil Ltd.
(see "Key provisions of drug and alcohol policy struck down by Human
Rights adjudicator" on our Publications page), the lack of a clear connection
between a positive drug test and inability to perform one's work played a role in the Court's decision. As well, this policy had the weakness of being both too broad, in that it ensnared drug-dependent people who were capable of performing their duties, and underinclusive, in that it applied only to new and returning employees.
It should be noted that the sort of disagreement that occurred between the
majority judges about whether the discrimination should be characterized as
direct or indirect may soon fade away in the federal jurisdiction. Recent changes
to the Canadian Human Rights Act incorporate the duty to accommodate, which
previously applied only to cases of indirect discrimination, into the bona fide
occupational requirement defence, which applied only to direct discrimination.
(See "Two rulings by Federal Court shut down Bell Canada pay equity case"
and "Bill S-5 to amend the Canadian Human Rights Act"
on our Publications page, and "Two federal labour bills now in force"
on our What’s New page.)
With this, the significance of the distinction between the two categories will diminish in importance.
For more information on this subject, please contact Colleen Dunlop at (613) 563-7660, Extension 222.
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