Appeal examines discrimination claims in workplace requirements
Canada's Federal Court of Appeal recently dealt with a discrimination case where a federal worker raised novel arguments about COVID-19 vaccination policies.
The worker argued that requiring vaccination status disclosure was equivalent to genetic testing and that employer assumptions about unvaccinated individuals created a form of disability discrimination.
The case presents important considerations for human resources professionals about how vaccination policies intersect with human rights protections in the workplace, particularly regarding genetic discrimination and perceived disability.
In response to workplace COVID-19 policies, the worker filed a complaint with the Canadian Human Rights Commission against his employer, Fisheries and Oceans Canada. His complaint centred on being denied workplace accommodations after refusing to disclose his vaccination status.
The employer's response was to place him on administrative leave without pay. The worker based his discrimination complaint on two separate grounds under the Canadian Human Rights Act: genetic characteristics and "partial/perceived disability."
When presenting his genetic characteristics argument, the worker stated in his complaint: "I fear that my genetic characteristics are being used and will be used to discriminate against me now and in the future." He argued that asking about vaccination status was equivalent to requesting genetic test results.
The Commission's human rights officer determined that vaccination status disclosure and genetic testing were distinct matters. The officer referenced section 3(3) of the Canadian Human Rights Act, which defines genetic discrimination as occurring when there is a "refusal... to disclose... the results of a genetic test."
During the investigation, the worker provided scientific evidence showing that COVID-19 tests detect the virus's genetic material rather than human genetic characteristics. This technical distinction played a crucial role in assessing whether the employer's actions constituted genetic discrimination.
The Federal Court initially reviewed the case and upheld the Commission's finding that the complaint was frivolous. The court decision noted clearly: "attesting to a vaccination status is not equivalent to revealing a genetic test."
The perceived disability portion of the complaint took a different direction. The worker argued that COVID-19 could be "considered a partial/perceived disability" and claimed his employer made assumptions about unvaccinated employees posing higher health risks.
The court identified significant issues with the Commission's handling of this aspect. The decision stated: "Rather than addressing whether [the employer's] conduct following [the worker's] refusal to disclose his vaccination status constituted adverse differential treatment on the ground of perceived disability, the Officer asked whether [the worker] had established that he actually suffered from a disability that prevented him from being vaccinated."
While the employer's legal team maintained that the Commission had properly examined all aspects of the complaint, the court disagreed. As noted in the decision: "Far from being silent, the Officer's reasons, adopted by the Commission, indicate that he misconstrued and therefore did not consider [the worker's] perceived disability claim."
The ruling emphasised the importance of thorough investigation in human rights matters. The court stated: "By effectively failing to consider [the worker's] perceived disability claim, the Officer did not conduct a thorough investigation, as required by the jurisprudence of this Court."
This led to the court returning the perceived disability claim to the Commission for fresh investigation. The decision specified: "I would allow the appeal in part and remit the matter back to the Commission for re-determination solely with regards to whether [the worker's] complaint that [the employer] discriminated against him on the ground of perceived disability is frivolous under section 41(1)(d) of the Act."
The case established important distinctions between genetic discrimination and perceived disability in workplace vaccination policies. It also reinforced the requirement for human rights bodies to properly investigate each discrimination ground raised in a complaint, even when multiple grounds stem from the same workplace situation.
