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Chapter #5 Human Rights Issues.docx

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Law and Business
LAW 529
Pnina Alon- Shenker

Chapter 5 Human Rights IssuesOHRC Ontario Human Rights Commissions The HRC requires an ER to maintain a workplace that is free from discrimination and harassmentIt must make all employment decisions including those related to training transfers promotions apprenticeships compensation benefits performance evaluations discipline layoffs and dismissals on a nondiscriminatory basisWHAT CONSTITUTES DISCRIMINATION Term DISCRIMINATION is not defined in the code The courts interpreted it to mean an intentional act of exclusion o for example the placement of an advertisement specifying that individuals of a certain ethnic background need not apply this bhvr is known as direct discrimination and is easy to identifyMany acts of discrimination are hidden or even unintentional o For example the weight and height restrictions formerly attached to some jobs such as firefighter and police officer often had an adverse impact on women and members or certain ethnic groups who on average were unable to meet those job requirementsthis type of discrimination is referred to as ADVERSE IMPACT DISCRIMINATIONWhere a job requirement is justifiable if it affects certain individuals or groups adversely and touches on a prohibited ground of discrimination and ER has an obligation to accommodate that EE or group if possibleThe duty to accommodate requires the ER to modify the rule for those negatively affected unless doing so would create UNDUE HARDSHIP for the ERIn 1985 the Ontario govt amended the Code to expressly include the notion of CONSTRUCTIVE DISCRIMINATION another name for adverse impact discriminationSection 11 provides that a rule that results in discrimination infringes the Code UNLESS it is a bona fide occupational qualification or requirement BFOQ A rule or qualification will not be considered a BFOQ unless it is shown that the needs of that person or group cannot be accommodated without imposing undue hardship on the ERAlthough the duty can arise on several grounds it is most likely to arise in the case of an EE with a disabilityTHE DUTY TO ACCOMMODATE Duty to accommodate has been a part of the ERs obligation under the code for many yearsPrinciple that underlies the duty is the belief that it is unfair to exclude people on the basis of a prohibited ground of discrimination bc their needs are different from those of the majorityThe essence of ACCOMODATION lies in tailoring the workplace to meet the needs of in individual EEAccording to Ontario Human Rights Commissions Policy and Guidelines on Disability and the Duty to accommodate the principle of accommodation involves 3 factors 1 Individualization there is no formula to determine when the duty to accommodate has been satisfied Each persons needs are unique a solution that meets one persons requirements may not meet anothers 2 Dignity people must be accommodated in a manner that most respects their dignity including their privacy confidentiality comfort and autonomy y For example a wheelchair entrance over the loading dock or garbage room is unacceptable 3 Inclusion job requirements and workplaces must be designed with everyone in mind An ER cannot base systems or requirements on normal EEs and them make exceptions as people or groups request themThe ER has primary responsibility for initiating accommodation however other parties have responsibilities as well it is a shared obligationThe Commissions Policy and Guidelines on Disability and the Duty to Accommodate addresses the parties responsibilities o The obligations of the ER are as follows Accept the EEs request for accommodation in good faith unless there arelegitimate reasons for acting otherwiseObtain expert opinion or advice where necessaryEnsure that alternative approaches and accommodation solutions are investigatedKeep a record of the accommodation request and the action takenMaintain confidentialityLimit requests for information to those reasonable related to the nature of the limitation or restrictionGrant accommodation requests in a timely manner unless they create undue hardship even when the request is not made formally
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