RSS FeedFiring Up Might Not Get You Hired
Employers are prevented in Canada from refusing to hire someone on a number of discriminatory grounds unless they directly relate to the job requirements. These categories include race, religion, gender, or political affiliation.
But what about lifestyle habits? Can employers refuse to hire someone based on the fact that they smoke, concluding that this individual in the long-term will have more sick days, and will have a shorter life expectancy?
Smokers Need Not Apply
It might seem strange, but that’s what is happening in Florida. Sarasota County officials announced that they will no longer hire smokers, who place a burden on taxpayers through health insurance.
The Supreme Court of Florida upheld a similar ban in 1995, when North Miami refused to hire smokers in The City of North Miami v. Kurtz.
Michelle Tyler describes the issues around the case in the Georgetown Law Journal,
…all prospective city employees to sign an affidavit stating that they had refrained from using tobacco products for the prior year.
…the city’s interest in reducing the burden on taxpayers is not only legitimate, but also compelling enough to override the individual’s privacy right, whether considered a fundamental right or merely a protected interest. This holding extends the Grusendorf rule that bona fide job requirements may override a privacy interest in smoking while off duty.
The heavy public costs associated with a smoking workforce support the court’s holding that the city had established a compelling interest sufficient to satisfy a strict scrutiny analysis. Health and productivity costs associated with smoking and borne by the employer are significant. Smokers more often suffer from chronic illnesses and are more susceptible than nonsmokers to acute health conditions. They incur more medical costs, require more hospitalizations, and visit physicians more often than nonsmokers. Productivity costs related to smoking include higher absenteeism; an injury rate double the nonsmoking rate due to loss of attention, coughing, and similar distractions; and lost time in the workday due to “cigarette breaks.” Together, these costs amount to significant losses to employers. For example, in 1992, Banc One reported that each smoking employee costs the company up to $1,100 more annually than its nonsmoking employees. Additionally, when an employer eliminates smoking on company premises, the company decreases structural maintenance and cleaning costs and derives savings from the reduced strain on heating and cooling systems which filter fewer smoke particles.
But could this happen in Canada?
The Canadian Council for Tobacco Control does cite Kurtz on their website.
Where Do we Stop?
The Soapboxblog raises the slippery-slope argument,
…ought we not then exercise this premise for private sector employers who wish to not employ individuals who are overweight?
Maybe said employers wish not to employ individuals with diabetes, a history of high cholesterol, a history of high blood pressure, genetic predisposition to breast cancer or cervical cancer, etc. or, as is more abundantly obvious, individuals who eat their weight in trans-fatty goods on a daily basis.
Maybe those same employers wish not to employ workers who lead “high-risk” lifestyles too. Come to think of it, the aforementioned list might just as well serve as a precursor for the latter argument as well; that being the healthier workforce argument.
And What About the Poor Farmers?
Even more compelling is the plight of tobacco farmers in Ontario, who are hitting tough times. Discrimination against smokers in the workplace would only make the farmers’ financial situation worse.
But tobacco farmers are putting their blame squarely on Conservative MP, Diane Finley. They are joined by residents in Caledonia, who are concerned that Aboriginal land claims will make their property value plummet.
Finley is the Minister of Citizenship and Immigration, and despite the anti-immigration (and potentially discriminatory) orientation of Bill C-50, her residents are not pleased.
What’s interesting is that members of her riding in Haldimand—Norfolk are seem to be taking it out on her gender,
When she runs again, I am going to have a sign on my lawn that says `Never ever vote for this woman again.’
So while the right of smokers to be hired may be scrupulously upheld, advances of women in the workplace (and politics) may take second place.
Hillary would not be pleased.
Online Legal Reporting Trumps CNN
The video is hard to turn away from. A sobbing 16-year-old sits in her bedroom and, staring into a camera, says she has been raped.
This is how CNN covers a story of a 16-year old that posted a video on YouTube after the state attorney in Orange County, Florida dropper her case of being raped. [youtube]http://www.youtube.com/watch?v=N-1iIPiE38g[/youtube] They then go on to warn of the dangers of divulging too much personal information online, and tout the benefits of a counselling service that would probably be more effective. The problem is that the CNN reporter probably did not even bother to read case transcript, available free from the Orange County Clerk of Courts. Instead, the real story broke on The Smoking Gun, which related how the young girl changed her story of a consensual relationship after the case was dismissed, and had cited personal grievances and a break-up as the reason for the complaint. The case sheet itself leads with,
Due to the consensual nature of the sex encounter… I’m using prosecutorial discretion and am not filing the case…
Commentators on the case have wondered if the accused now has a case against her for libel and slander. Others have wondered how a small website could conduct a more thorough investigation than a multi-million dollar international news agency. The power and importance of small media web outlets are only beginning to be felt.
Promoting Access to Justice
Warren Winkler, chief justice of the Ontario Court of Appeal, raises the issue in today’s Star of the problem of access in our justice system due to rising costs and lengthening delays.
He identifies measures already taken to address this, specifically small claims courts, simplified procedures in the Superior Court of Justice and flexible civil litigation case management.
Also applicable but overlooked by Winkler are administrative tribunals, similarly designed to reduce cost and provide quick resolutions to disputes.
But Winkler also proposes reforms to focus litigation so that it is “proportionate to the monetary value, complexity and social impact of the lawsuit.”
Winkler said,
From a systemic perspective, we must keep our legal processes simple and reduce the number of mandatory steps in each lawsuit that drain resources without adding much value. Cases with serious financial and emotional impact (e.g. employment and family) may well require special procedures to reduce litigation costs and expedite resolution, regardless of the amount at issue. Moreover, there is nothing more effective in the court system than a “day of reckoning.” A fair and just system of justice requires a courtroom, a judge and a non-adjournment policy. The certainty of an early trial date will produce fairer settlements or timely adjudication, and prove to be less costly to litigants.
SCC constitutionalizes diminished criminal responsibility for youths
If I have a theme for this week, I guess it would be “implied constitutional principles.” Following up on the California gay marriage ruling, I have another post today, this time from much closer to home.
The Supreme Court of Canada this morning issued a landmark decision on sentencing under the Youth Criminal Justice Act (YCJA). Before I get into the constitutional (and political) implications of SCC’s decision in R. v. D.B., 2008 SCC 25, I’ll start with a bit of background.
The Harper government campaigned on a promise of amending the YCJA to impose tougher sentences on youth. In particular, the Conservatives seem to have taken issue with the Supreme Court’s decision in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 that deterrence and denunciation are not goals of sentencing applicable to youth.
Instead, the court ruled that youth sentences must be aimed at “rehabilitating and reintegrating young persons into society … by holding young persons accountable through the imposition of meaningful sanctions related to the harm done” (para 4).
Beyond the government’s desire to make deterrence a principle of youth sentencing, the Conservatives have also been trying to implement automatic adult sentences for youth convicted of violent crimes or repeat offences.
Today’s ruling in R. v. D.B. will throw a monkey wrench into Harper’s plans. Allow me to explain.
When sentencing youth under the YCJA for so-called “presumptive offences” (e.g. manslaughter), the onus was on the youth to prove why they shouldn’t be treated as an adult. D.B. was charged with manslaughter, and he brought a Charter application claiming that these reverse onus provisions of the YCJA were unconstitutional and should be struck down. The Supreme Court, by a narrow 5-4 margin agreed with him.
So the reverse onus provisions are now unconstitutional. It sounds like a rather unimportant decision that will not have a particularly large practical impact on youth criminal justice in general.
But here’s where it gets interesting.
In coming to its decision, the Supreme Court recognized a new principle of fundamental justice: an implied constitutional principle.
According to Abella J., who wrote for the majority, it is a “principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability” (para 70).
Justice Abella also wrote (at para 68) that:
… a broad consensus reflecting society’s values and interests exists, namely that the principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate.”
Since a new principle of fundamental justice has been implied into our constitution, the courts are now empowered to strike down legislation that violates it. Whatever attempts the government makes to amend the YCJA, they will now have to be consistent with the notion that young people have diminished moral culpability.
Conservative criticism of the decision has been swift and harsh. Check out Colby Cosh’s comments in the National Post Blog, where he says that the Supreme Court:
“… gave a command performance in the role … [of] a gang of aggressive fanatics determined to push the pace of social “progress” to a sprint, thwart the parliamentary balancing of public interests, and permanently enshrine every liberal legislative mistake of the past.”
Snappy!
California becomes second U.S. state to legalize gay marriage
This morning the California Supreme Court ruled that the state’s laws restricting marriage to heterosexual couples were unconstitutional. Following a close 4-3 decision, California has become just the second state in America (after Massachusetts) to legalize gay marriage .
The lengthy (174 page!) decision entitled “In re Marriage Cases” represented a consolidated appeal from six cases. You can read the full text of the decision here.
Californian homosexual couples were already entitled to virtually all of the same benefits available to straight married couples under the Domestic Partnership Act. The court, however, determined that the language and statutes governing “domestic partnerships” did not go far enough. The definition of marriage in California would no longer exclude homosexual couples.
At p. 120, George C.J. (Kennard, Werdegar, Moreno JJ. concurring) wrote:
… [W]e determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.
In an interesting dissenting opinion (for fans of the “legitimacy of judicial review” debate), Baxter J. wrote that the majority had engaged in “legal jujitsu” and had been overzealous in interpreting the constitution. He was of the view that there was nothing implicit or explicit in the constitution which allowed the recognition of marriage between a same-sex couple. Therefore, he wrote, the majority had erred in viewing the progressive changes made by the legislatures in recognizing domestic unions as creating an implicit constitutional principle that marriage should extend to homosexual couples.
At p. 5 of the dissent, Baxter writes:
Recent years have seen the development of an intense debate about same-sex marriage. Advocates of this cause have had real success in the marketplace of ideas, gaining attention and considerable public support. Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should, in civil parlance, include the legal unions of same-sex partners.
But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.
In any event, gays and lesbians in California have won a significant civil rights victory today in California. Following the 30 day suspension period, they will be legally allowed to marry in that state.
Conservative groups must now petition for an amendment to the state constitution if they wish to challenge the court’s decision. According to the New York Times, these conservative groups have already gathered over a million signatures supporting a constitutional ban on gay marriage. The initiative will likely be put to the voters in November. Interestingly, despite vetoing two attempts by the legislature to recognize gay marriage, Gov. Schwarzenegger has said that he will not support the constitutional ban initiative.
Freedom of hate speech
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Mark Steyn Debates Complainants
We’ve all been waiting for this since forever.
The understandably busy articling students from Osgoode Hall make time to debate Mark Steyn on TVO.
A point of note: the poster of the videos introduces them as “sock puppets.” However, they are 3 of the 5 law students that produced the original research leading to the complaint against Maclean’s magazine, and the President of the CIC simply filed it on their behalf. Any assertion to the contrary is simply erroneous.
Updates: Welcome back to the thousands of Steyn fans that have returned to this site. We’ll get to your moderated comments in due time, possible within days or weeks. Our small team of full-time law students can hardly keep up with that horde. And as we’ve said before, we can’t speak on their behalf – we’re glad that they’re speaking for themselves, but we cannot answer any specific questions because we do not have the answers.
We’re finding that many of the comments are by the same posters, using different names and (fake) email addresses, but from the same computer. Some are even having a dialogue with themselves. These comments will be given a lower priority as we sort through them all.
Law School Stressful? Hah!
Congratulations on finishing your year, and remember the best is yet to come.
