LEEL 570 Lecture Notes - Lecture 3: Sexual Orientation, Independent Contractor, Statutory Interpretation
27 Jun 2018
School
Department
Course
Professor
Employment Law
Jan 22 - 24: Recruitment and the Law: the Contractual Relationship in a Public Law Framework
January 22 – Part II: Recruitment and the Law: Situating the contractual relationship in a public law
framework
Public policy contours of the employment relations –e.g. Age
Paradox and reminder: sometimes the best standard is the broader social conditions
s.32 & 33 CCQ- child's right to protection, security; interests and rights, health.., other aspects of
his situation
Is this a Charter question? Art 10 on non-discrim includes "age except as provided by law"
s.84.2, An Act respecting labour standards (LSA) - "disproportionate to the child's capacity or...
likely to be detrimental to the child's education, health or physical or moral development"
s.53, An Act Respecting Occupational Health and Safety – Prohibition of hiring a person who has
not reached the age set by regulation
Norms and Practices vs. Equality Provisions:
Strict framework yet fairly significant breach
Offers of employment (art 11);
The reception, classification or processing of a job application (art 18);
The job application forms and selection interviews (art 18.1);
The hiring, apprenticeship, duration of the probationary period, vocational training, promotion,
transfer, displacement, etc (art 16)
Treatment or equal salary for equivalent work.. (art 19);
Membership in a union, employer's association, professional association, exclusion, etc (art 17)
In juridical acts (K, collective agreement) (art 13)
Protection from previous criminal or penal offences (art 18.2)
Other framing sources
s.46, Charter of French Language
s.243, An Act Respecting Industrial Accidents and Occupational Diseases
s.14 Labour Code
a.9, An Act respecting the Protection of personal info in the private sector
Professional codes
Meiorin (19991) SCC
Unanimous decision
Key decision setting the standard for analyses of systemic discrimination and for BFOR test
This is not a strictly recruitment case but it is pivotal
Facts: M is a frontline forest firefighter. She was part of a 3-person initial attack crew in BC. She
was fired after 3 years b/c BC changed the fitness requirement
JH:
oArbitrator (re: unionized workplace)
No credible evidence presented that M was unable to meet the aerobic
standard
Adverse impact discrimination approach applied
She was reinstated
oCourt of Appeal
find more resources at oneclass.com
find more resources at oneclass.com
Found standard was necessary for safe and efficient work performance
Considered that setting a lower standard for M would constitute "reverse
discrimination"
Did not distinguish btwn adverse impact or direct discrimination
Analysis
oThe test was only tested on 2 women (vs 77 men)
Beyond a conventional analysis of discrimination
oDirect discrim: standard is discriminatory on its face
oAdverse impact discrim: standard is facially neutral but discriminates in its effect
oIf a prima facie case is established, the burden shifts
Direct discrimination defence: BFOR (para 20)
1. Standard was imposed honestly and in good faith and was not designed
to undermine the objectives of the human rights legislation (subjective element)
2. The standard is reasonably nec to the safe and efficient performance of the work and
does not place an unreasonable burden on those to whom it applies (objective element)
Adverse effects discrimination defense: para 22
1. BFOR doesn’t apply, rather:
1. Rational connection btwn the job and the particular standard
2. It cannot further accommodate the claimant without incurring undue hardship
Why was the distinction helpful historically?
1. It moved us away from a solitary focus on direct discrimination
Why was a "new" approach adopted in Meiorin?
1. 7 profound difficulties canvased by McLachlin J (para 27 ff)
1. Perceived artificiality of the distinction itself
2. Different remedies
3. Questionable assumptions linked to demography / size of group affected
4. Difficult practical application of employer defenses
5. ***Legitimizing systemic discrimination: if a standard is considered neutral, when can
we challenge its "legitimacy"? Just saying we will accommodate groups to fit into that standard.
See para 41 & 42 for an important critique of "accommodations" as allowing formal equality
rather than substantive equality to be the norm. What's the starting assumption? Is the
standard necessarily neutral?
6. Dissonance re: express purpose vs precise terms of the Codes
7. Dissonance btwn human rights legislation/codes and Canadian Charter analyses (human
rights touches private actors while Charter targets state action)
Critique of accommodation framework in formal equality
1. We should move away from an approach that assumes the mainstream
2. Para 42: "the right to be free from discrimination is reduced to a question of whether
the 'mainstream' can afford to confer proper treatment on those adversely affected, within the
confines of its existing formal standard. If it cannot, the edifice of systemic discrimination
receives the law's approval. This cannot be right"
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Jan 22 - 24: recruitment and the law: the contractual relationship in a public law framework. January 22 part ii: recruitment and the law: situating the contractual relationship in a public law framework. Public policy contours of the employment relations e. g. age. Paradox and reminder: sometimes the best standard is the broader social conditions s. 32 & 33 ccq- child"s right to protection, security; interests and rights, health, other aspects of his situation. The reception, classification or processing of a job application (art 18); The job application forms and selection interviews (art 18. 1); The hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, etc (art 16) Treatment or equal salary for equivalent work (art 19); Membership in a union, employer"s association, professional association, exclusion, etc (art 17) In juridical acts (k, collective agreement) (art 13) Protection from previous criminal or penal offences (art 18. 2)
