Employers utilize many different work schedules. The most traditional work shift is the “fixed” shift. As this term suggests, a fixed shift is a work shift that remains the same or “fixed”. For example, an employee who works “9-5” works a fixed day shift schedule. The term “fixed” simply denotes relative permanence.
Alternatively, many employers in various industries now utilize rotating shift schedules. As this term suggests, rotating shifts alternate between different shifts. For example, a manufacturer who operates its plant continuously (24/7) may use 2 shifts e.g. 6:00 a.m. – 6:00 p.m. and 6:00 p.m. – 6:00 a.m. to maintain round the clock production. A rotational shift schedule requires the employees to alternate or rotate between the alternate shifts. Consequently, a rotational shift schedule that rotated shifts every two (2) weeks would require employees to work one of the above shifts for a 2 week period then they would “rotate” to the alternate shift for the next 2 week period and continue indefinitely to rotate shifts every 2 weeks.
WHO DOES A ROTATIONAL SHIFT SCHEDULE BENEFIT?
Rotational shift schedules benefit employers to the detriment, often profound, of its employees.
Employees who work rotating shift schedules incur significant health, social and economic burdens.
Employees that work rotational shift schedules probably do not need to be informed of the physical toll taken by a rotating shift work schedule. In addition to fatigue, the profound disruption of natural sleep cycles inevitably caused by a rotating shift schedule can cause many serious health problems, including, heart problems and cancer.
The BBC news reports (http://news.bbc.co.uk/1/hi/health) that employees who work rotating shift schedules are at higher risk for heart disease, diabetes and other metabolic disorders. The BBC news also reports that “Japanese scientists found that staff working rotating shifts were four times as likely to develop prostrate cancer as those working [fixed] day or night shifts. According to this report, the researchers suggest that the reduced secretion of the hormone melatonin, which the body uses to induce sleep, may provide a physiological basis for the increased cancer risks incurred by rotating shift workers. Melatonin is considered by many medical professionals to have anti-cancer effects.
The BBC also reports that there have been several reports that disturbances to natural body rhythms might be linked to cancer. Most notable of such natural body rhythms are circadian rhythms which trigger various physiological phenomena, including, the secretion of hormones, which, in turn, result in other physiological changes. For example, diabetics are familiar with a natural body rhythm resulting in the early morning secretion of hormones (growth hormones, cortisol and catecholamines) that causes a rise in early morning blood-sugar levels.
In short, nature has provided the human body certain rhythms that are based on physical and temporal phenomena that have evolved over millennia to facilitate the health and survival of mankind. These rhythms, like the rhythms of the ebb and flow of the ocean’s tides and the solar and lunar cycles which provide us daylight and nighttime, are immutable and, thus, cannot be modified to conform to manmade or artificial constructs. Shift rotation (a man made construct) disrupts these natural rhythms which can (and, often does) result in adverse ramifications for those who ask their body to continually fight its own natural inclinations.
The problems caused to workers on a rotating shift schedule are not limited to serious health and medical problems. Shift rotation reduces both the quantity and quality of time that rotating shift workers may share with their family and friends. Their irregular work schedules inevitably limit and interfere with their ability to be present for daily family life. This is particularly burdensome on families with young children where such workers can be deprived of opportunities to both enjoy and instruct their children and share time with their spouses. In addition to the reduction of time available for family, the sleep problems that inevitably result from shift rotation tend to compromise the quality of the diminished time that such workers can spend with their families. The social damages that result from the diminution of quality time with family, particularly, children, include divorce, isolation (both to the worker as well as his or her family) and child behavioral problems.
In turn, these social problems along with the health and medical problems identified above inevitably result in economic problems for the rotating shift worker, including, costs incurred for medical treatments and medicines. These, initial costs, however, often pale in comparison with future losses sustained by the rotating shift worker in the form of lost wages. Quite often, employees who work rotating shift schedules simply cannot sustain the relentless physical demands imposed by long term shift rotation, and, reluctantly, leave their positions in order to work a more physically sustainable fixed shift schedule. The lost wages and benefits incurred by the exiting rotating shift worker, rather insidiously, benefit the employer by substantially reducing its health care premiums and retirement/pension contributions.
For example, manufacturing giant, Procter & Gamble, who requires its hourly paid employees1 to work rotating shift schedules, has a workforce that, according to the Economist Magazine, has an average age of thirty-eight (38)2 whereas the average age of manufacturing employees in the U.S. is, roughly, fifty (50) 3. Thus, by artificially inducing employee attrition rates far in excess of what they would otherwise be, Procter & Gamble, presumably, enhances its annual profits, at minimum, by millions, and, possibly, by billions. By inducing elevated attrition to its manufacturing workforce, Procter & Gamble, as well as the numerous other companies that engage in this rather insidious practice, fills its pockets by effectively terminating the older and more medically vulnerable employees who can no longer physically sustain the subtly grueling demands of a rotating shift work schedule.
Federal law includes two statutes that employees can potentially use to combat discrimination in employment through the use of mandatory shift rotation, the Americans with Disabilities Amendment Act (“ADAAA”) and the age discrimination in employment act (“ADEA”).
The ADAAA provides legal redress for qualified employees who are disabled and who suffer an adverse employment action from their employer that can be attributed to their disability. In addition to protecting against active adversity imposed by an employer, the ADAAA also affirmatively requires employers to make reasonable accommodations for qualified employees who are disabled. An individual is disabled under the ADAAA if the individual suffers from 1) a medical impairment and that medical impairment 2) substantially limits the individual in the performance of one or more major life activity. Major life activities are activities that are generally regarded as important or central to human life and are activities that the average person in the general population can perform with little or no difficulty. Examples of recognized major life activities include seeing, walking, talking, working and caring for one’s self (this is not an exhaustive list).
The ADEA protects workers age 40 and over from discrimination in the workplace as a result of their age. Adverse employment actions include, termination, demotion, transfer to undesired position(s), or, even not being hired. In short, an adverse employment action is any action instituted by an employer that adversely alters the terms and conditions of employment for the worker.
Employment discrimination can be inflicted upon an individual or a group of employees. For example, an employer that refuses to make a reasonable accommodation and/or adversely treats an employee as a result of an the employee’s disability, discriminates against an individual. However, an employer can also discriminate against whole groups or segments of a workforce. For example, a work schedule that disproportionately impacts older employees (40 and over) may constitute discrimination against that group.
Just as employers can discriminate against either an individual or a group of employees, employee-plaintiffs can proceed against such employers either individually or as part of a larger group or class. For example, an action alleging that mandatory rotating shift schedules disparately effects a company’s older workers (40 and over) would naturally lend itself toward being brought as a class action because all of the claimants or plaintiffs would be raising the exact same claims and allegations, thus, the same issues for adjudication.
Unfortunately, however, while U.S. laws offer theoretical redress for discriminatory practices, as a practical matter, it is well known among legal practitioners in the field as well as legal commentators that U.S. courts are simply not amenable to enforcing such laws against big corporate entities. See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007); Dukes et al. v. Wal-Mart, 131 S.Ct. 2541 (2011; Orr v. Wal-Mart, 297 F.3d 720 (8th Cir. 2002); Rehrs v. Iams and Procter & Gamble, 486 F.3d 353 (8th Cir. 2006); See also, Gould, William B, IV, The Supreme Court and Employment Discrimination Law in 1989: Judicial Retreat and Congressional Response, 64 Tul. L. Rev. 1485 (June, 1990); Colker, Ruth The Americans with Disabilities Act: A Windfall for Defendants, 34 Harv. C.R.-C.L. L. Rev. 99 (Winter, 1999); Colker, Ruth The Mythic 43 Million Americans with Disabilities, 49 Wm. & Mary L. Rev. 1 (October, 2007).
LEGAL REMEDIES IN CANADA
While, unfortunately, older workers and workers with medical ailments that constitute disabilities in the U.S., as a practical matter, have no legal remedy for this type of discrimination4, older workers and workers with medical conditions legally identified as disabilities in Canada may well have a meaningful opportunity for legal redress for the adverse effect 5 discrimination that they experience as a result of having to work a rotating shift work schedule. For example, §5(1) of the Ontario Human Rights Code expressly prohibits discrimination based upon age as well as disability6. Employees that work for private employers can seek redress before the Ontario Human Rights Tribunal7. Generally, in such instances, in order to establish a prima facie case, a worker must offer proof that:
a) The employee is a member of a protected class e.g. older or disabled8 and the employer was aware of it;
b) The employer subjected the employee to adverse treatment with respect to his/her employment or a condition of their employment. (Adverse treatment encompasses both direct and intentional adverse treatment as well as acts, rules or policies that, while neutral on their face, nevertheless, adversely effect the employee; as noted above, this was formerly known as adverse effect or adverse impact discrimination prior to the Meorin case decided by the Supreme Court of Canada in 1999.);
c) A causal link between the identifying characteristic of the protected class i.e. the disability or age of the employee and the adverse treatment/effect experienced by the employee. In other words, does the discriminatory effect or impact result from the employer’s action or failure/refusal to act? The employer’s “action” can take the form of implementing a particular rule, standard or policy and inaction can take the form of failing to positively respond to a request for a reasonable accommodation.
Generally, it is not particularly onerous to establish a prima facie case in such instances. For example, in the case of older or disabled workers being prejudiced by a rotating shift work schedule, they will have to lead evidence that their specifically protected classes e.g. age or disability, is disproportionately (and, adversely) impacted or effected by the rotating shift schedule. One way in which this may be demonstrated is by evidence showing that older and disabled workers are significantly under represented in the company’s workforce compared to a similarly situated company that refrains from using a rotating shift schedule. This may also be proven by comparing the demographic information from the employer's workforce to the demographic data of the local available workforce.
Once an employee establishes his/her prima facie case, the burden shifts to the employer to demonstrate that the rule, standard or policy being imposed upon the employee is a bona fide occupational requirement (“BFOR”) (these may also sometimes be termed BFOQ’s (bona fide occupational qualifications). In order to demonstrate a BFOR (or, BFOQ), an employer must prove:
1) That the employer adopted the standard, rule or policy for a purpose rationally connected to the performance of the job;
2) That the employer adopted the particular standard, rule or policy in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work related purpose; and
3) That the standard, rule or policy is reasonably necessary to the accomplishment of that legitimate work related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing an undue hardship upon the employer.
British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 SCR 3 (“Meiorin”); see also, Hydro-Quebec v. Syndicat des employe-e-s de techniques professionelles et de bureau d' Hydro-Quebec, section locale 2000 (SCFP-FTQ) (2008), 2008 SCC 43 (CanLii II) 2 S.C.R. 561.
In my opinion, the third element of the BFOR defense as set forth in the Supreme Court’s Meiorin -and developed through its progeny, including, arbitral jurisprudence would be very difficult for an employer to satisfy.(see Siemens VDO Automotive Inc. and Canadian Auto Workers, Local 1941 (2006) 154 L.A.C. (4th) 372 (Waters, Ontario) expressly finding that rotating shifts were not a bona fide occupational requirement). As a general proposition, employer(s) can easily maintain round the clock coverage with a fixed shift schedule and the overwhelming majority of companies or employers (if not all) that utilize rotating shift schedules previously performed the very same functions while utilizing fixed shift schedules. It seems to me utterly unassailable that employers can simply accommodate older or disabled workers by simply exempting them from having to work rotating shift schedules or by simply eliminating such work schedules altogether. Indeed, rotating shift schedules have been used for nursing schedules for quite some time and now that medical providers are becoming aware of (or perhaps, finally acknowledging) the deleterious health consequences of rotating shift schedules9 , they are beginning to phase out the use of rotating shifts10. If the Cleveland Clinic or any healthcare institution providing round the clock medical care can dispense with rotating shift schedules for its nursing staff, any manufacturer can just as easily also dispense with rotating shift work schedules, or, at the very minimum, appropriately adapt such schedules so they do not effectively exclude the old and medically vulnerable from the workforce.
Furthermore, an employer may also be hard pressed to establish either of the first two elements of the defense set forth in Meiorin. While, undoubtedly, the employer will posit a facially neutral and plausible legitimate business reason for this practice, evidence of the profound amounts of money saved - and, consequently, corporate profits earned - as a result of this practice's effect of culling the more costly older and infirm workers would probably demonstrate that the employer's posited justification for utilizing a rotating shift schedule is but a pretext. Can employers that utilize these schedules credibly claim that they are unaware of the profound financial benefits that flow directly from this practice? Can they credibly deny that it is not these profound financial benefits as opposed to claims such as rotating shift schedules fostering "employee growth" by exposing employees to alternative workplace scenarios that really motivate their use of these schedules?
1 In P&G’s vernacular, such employees are termed “technicians”.
2 The Economist, April 15 – April 21, 2006)
3 According to the Northeast Pennsylvania Business Journal.
4 The U.S. Judiciary, on whole, interprets employment law and human rights statutes very narrowly. Indeed, it was the U.S. Judiciary’s effective evisceration of the Americans with Disabilities Act (“ADA”) that compelled the Congress to enact the ADA Amendments Act “ADAAA” which took effect January 1, 2010.
5 While the terms “adverse effect” or adverse impact” are no longer used post Meiorin the concepts are still recognized and actionable.
6 This statute generally mirrors §15 of the Charter of Rights and Freedoms.
7 If an employee is wrongfully discharged they may pursue legal remedies in the Superior Courts (§96 Constitution Act, 1867). This, arguably, would include a “constructive” discharge in which the employer knew that the worker was incapable of working rotating shifts without significantly jeopardizing their health, yet, nevertheless, refused to accommodate the worker by adjusting their schedule in a duly responsive manner.
8 As the term “disabled” may variously be defined statutorily and by the common law.
9These health consequences include long term chronic diseases such as gastrointestinal disease, cardiovascular disease, cancer, metabolic diseases, including metabolic syndrome and diabetes as well as reproductive functions. See Canadian Centre for Policy Alternatives – SK, Volume 6: Issue 6 (October, 2007) Shifting Times: The Perils of Shift Work and Science Daily (http://www.sciendedaily.com/releases/2009/12/091217094909.htm). (October 23, 2011).
10 Most notably, the Cleveland Clinic has initiated the phasing out of rotating shift schedules. The Plain Dealer (Brie Zeltner, Shift Workers Struggle with Getting Sleep (June 25, 2011).