I got curious about the drug-testing discussion here earlier.
Grannylib was required to pass a drug test as a condition of employment for a job in "HR. Corporate training and development." --
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x91150Here's what the Canadian Human Rights Commission (which is responsible for applying the
Canadian Human Rights Act, the
non-constitutional legislation governing private sector employment in areas under federal jurisdiction, e.g. banking, shipping, railways, broadcasting) has to say about the practice in Canada (boldface the Commission's; boldface italics mine):
http://www.chrc-ccdp.ca/legislation_policies/alcohol_drug_testing-en.asp#Executive Summary
Because they cannot be established as bona fide occupational requirements, the following types of testing are not acceptable:
- Pre-employment drug testing
- Pre-employment alcohol testing
- Random drug testing
- Random alcohol testing of employees in non-safety-sensitive positions.
The following types of testing may be included in a workplace drug- and alcohol-testing program, but only if an employer can demonstrate that they are bona fide occupational requirements:
- Random alcohol testing of employees in safety sensitive positions. Alcohol testing has been found to be a reasonable requirement because alcohol testing can indicate actual impairment of ability to perform or fulfill the essential duties or requirements of the job. Random drug testing is prohibited because, given its technical limitations, drug testing can only detect the presence of drugs and not if or when an employee may have been impaired by drug use.
- Drug or alcohol testing for "reasonable cause" or "post-accident," e.g. where there are reasonable grounds to believe there is an underlying problem of substance abuse or where an accident has occurred due to impairment from drugs or alcohol, provided that testing is a part of a broader program of medical assessment, monitoring and support.
- Periodic or random testing following disclosure of a current drug or alcohol dependency or abuse problem may be acceptable if tailored to individual circumstances and as part of a broader program of monitoring and support. Usually, a designated rehabilitation provider will determine whether follow-up testing is necessary for a particular individual.
- Mandatory disclosure of present or past drug or alcohol dependency or abuse may be permissible for employees holding safety-sensitive positions, within certain limits, and in concert with accommodation measures. Generally, employees not in safety-sensitive positions should not be required to disclose past alcohol or drug problems.
In the limited circumstances where testing is justified, employees who test positive must be accommodated to the point of undue hardship. ...
Of course, this reflects the overall Canadian approach to individuals' rights and freedoms: that equality may not be denied, privacy not invaded, liberty impaired, etc.,
without demonstrated justification.
If private-sector non-discrimination legislation (federal or provincial) permitted discrimination on an unjustified ground, that legislation itself (i.e. the offending part of it, the part that failed to protect against discrimination) would be struck down by the courts as a violation of the Canadian Charter of Rights and Freedoms (Constitution) (or the necessary anti-discrimination provision would be "read into" the legislation).
That's not courts being "activist", by the way. That's courts doing exactly what the courts are required to do: apply the Constitution. The Canadian constitution contains very strong equality rights guarantees, and the courts cannot ignore them.
This is in fact what the Supreme Court of Canada did in a case in which it was argued that, by
not prohibiting discrimination in the private sector (employment, rental accommodation, retail services, etc.) on the basis of sexual orientation -- while prohibiting discrimination on the basis of race, religion, sex, etc. -- the Alberta legislation was unconstitutional. The legislation itself denied gay men and lesbians the right to the
equal protection and equal benefit of the law that the constitution guarantees, and was not
demonstrably justified in a free and democratic society.
Hell, even the Human Rights Commission of Alberta (Neoconland North) says this:
http://www.albertahumanrights.ab.ca/publications/Information_Sheets/Text/Info_Drug_Testing.aspBased on current human rights case law, the Alberta Human Rights and Citizenship Commission (the Commission) takes the following position on drug and alcohol testing:
1.Drug and alcohol testing are only allowable in certain circumstances.
2.It is discriminatory to test potential or existing employees for drug and alcohol use if the testing is not reasonable and justifiable.
3.There is a duty to accommodate persons with disabilities in the workplace, up to the point of undue hardship. Drug and alcohol dependency, whether perceived or real, fall within the meaning of disability under the Human Rights, Citizenship and Multiculturalism Act. For more information about accommodation, see the Commission’s interpretive bulletin Duty to accommodate.
There are of course many nuances to these positions, and the courts will examine individual cases based on their own facts and context.
But I just thought it interesting that the practice to which Grannylib was subjected would, on the face of it (no safety-related considerations, no broader policy issues specific to the employment), be
flat out illegal in Canada, under anti-discrimination legislation enacted by our various governments and interpreted by our various administrative and judicial bodies.
Damn that meddling government, eh?
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