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Could the whole of the U.S. be a hostile work environment for Ontario employers to navigate?

By Jennifer Mathers McHenry

Many years ago the Advocate’s Society booked its annual conference in Jamaica.  When LGBTQ members brought to their attention the fact that Jamaica is not a safe jurisdiction (in law or in practice) for queer people and that the choice of location could, in effect, exclude many of those members, the Advocates Society responded promptly and rebooked in a jurisdiction where homosexuality was not criminalized and where discrimination on the basis of a protected ground was not permitted or anticipated. I think the Advocate’s Society made the right call for its membership, so whether it was legally required to do as it did has never been considered. 

From the perspective of an employment lawyer, I have to consider what the legal obligations of an employer in similar circumstances might be.  If a company hosts its corporate retreat in a jurisdiction where the law is hostile to its LGBTQ employees, are they in so doing discriminating against their LGBTQ employees?  What if they open an office there and require periodic attendance?  What if their training center is located in a jurisdiction where discrimination against an employee is not only legal, but likely (I’m looking at you, Mississippi)?

I have long been of the view that employers in Ontario should tread carefully when sending their employees to jurisdictions which may have laws that are hostile to them or where they are likely to be exposed – as a result of their membership in an identifiable group protected by the Human Rights Code – to discrimination or danger. I think the answer would likely come down to accommodation analysis and whether visiting a particular jurisdiction is a bona fide occupational requirement.

Until very recently this has been a largely academic exercise.  Although there are many countries worldwide where people and groups protected in Ontario – LGBTQ people in particular - do not enjoy the same rights, there are few jurisdictions where most Canadian companies (but for those where travel to countries with laws very different from our own is common and anticipated from the outset) regularly send their employees which would likely expose them to lawful discrimination or danger. 

With the passing of each executive order by U.S. President Trump and the proliferation of “religious freedom” legislation which enshrines and protects a “right” to discriminate if the desire to do so is religiously motivated, the U.S. is, in my view, increasingly becoming a jurisdiction to which Canadian employers have to be careful about sending their employees.  Certainly I would argue that an LGBTQ employee should not, in most circumstances, be required to travel to, for example, Mississippi where discrimination and denial of services on the basis of their sexual orientation or gender identity is entirely lawful. It may be reasonable at the moment for some dual passport holders or Canadian permanent residents whose citizenship belongs to one of the countries targeted by the current administration to refuse to travel to the U.S. for work at all.  Might we get to a point where it would be reasonable for a Muslim Canadian to claim that his or her employer hosting a corporate retreat in Vegas is discriminatory or creating a hostile or unsafe work environment?  I hope not, but it doesn’t seem beyond the realm of possibility any more.

With each passing day and with each enshrinement of discrimination at the State or Federal level, this is more and more likely to become a live issue for Canadian employers. Even a few months ago I didn’t see a day coming when a Canadian executive being sent to the U.S. on business might constitute a human rights problem in Ontario, but here we are, and employers should turn their minds to how to handle it well before it comes up.

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Tags: Executive Employment Law and Litigation Employment Law and Litigation