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Lecture

MHR 523 Lecture Notes - Canadian Human Rights Act, Canadian Human Rights Commission, Canadian Human Rights Tribunal


Department
Human Resources
Course Code
MHR 523
Professor
Al- Karim Samnani

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MHR Chapter 4: Meeting Legal Requirements
GOVERNMENT IMPACT
The federal and provincial laws that regulate the employeeemployer relationship challenge the methods human
resource departments use. Some laws, such as the Canada Labour Safety Code of 1968, make major demands on
human resource departments. Federal and provincial governments often create special regulatory bodies, such as
commissions and boards, to enforce compliance with the law and to aid in its interpretation.
Regulations: legally enforceable rules developed by governmental agencies to ensure compliance with
laws that the agency administers.
The involvement creates three important responsibilities:
First, human resource experts must stay abreast of the laws, interpretation of the laws by regulatory
bodies, and court rulings. Otherwise, they will soon find their knowledge outdated and useless to the
organization.
Second, they must develop and administer programs that ensure company compliance. Failure to do so
may lead to the loss of government contracts, poor public relations, and suits by regulatory bodies or
affected individuals.
Third, they must pursue their traditional roles of obtaining, maintaining, and retaining an optimal
workforce.
THE CHARTER OF RIGHTS AND FREEDOMS
Canadian Charter of Rights and Freedoms: Federal law enacted in 1982, guaranteeing individuals equal rights
before the law.
Content and Applicability of the Charter
Section 1: guarantees rights and freedoms “subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.”
o Can lead to different interpretations by different judges; every time a court invokes one of the
rights or freedoms, it must determine if the infringement is justified.
Section 2: guarantees freedom of association, a very important aspect in industrial relations, especially for
unions.
o Whether the freedom to associate carries with it the right to bargain collectively and the right to
strike, the main reasons for the existence of unions.
Section 15the equality rights part states in its first paragraph:
o Every individual is equal before the law and under the law and has the right to the equal
protection and benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or
physical disability.
Areas of Application
The Right to Bargain Collectively and to Strike: The court affirmed that Section 2 protects the freedom to work for
the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful
activities without penalty or reprisal. However, it also held that the rights to bargain collectively and to strike are
not fundamental freedoms, but are statutory rights created and regulated by the legislature. Under this ruling,
governments can curtail the collective bargaining process by limiting salary increases, legislating strikers back to
work, and imposing compulsory arbitration.
The Right to Picket: the Supreme Court ruled that the right to picket is not protected under the Charter because it
applies only to situations involving government action. It follows that this right is not available to employees in the
private sector, where the vast majority of workers are employed. Employers can ask for injunctions to restrict the
number of pickets or any other reasonable limitation of picketing activity.
The Right to Work: The court concluded that the objectives of mandatory retirement were of sufficient
significance to justify the limitation of a constitutional right to equality if a province chose to impose one, with the
limitation that this discriminatory practice be reasonable and justifiable.
HUMAN RIGHTS LEGISLATION
Scope
Employment-related laws and regulations are limited in scope; their impact on the human resource management
process is confined to a single human resource activity. Human rights legislation, however, is an exception. Its role
is not limited to a single human resource activity.

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MHR Chapter 4: Meeting Legal Requirements
Overview
Discrimination between workers on the basis of their effort, performance, or other work-related criteria
remains both permissible and advisable.
Human rights legislation does permit employers to reward outstanding performers and penalize
insufficient productivity. Its only requirement is that the basis for rewards and punishments be work-
related, not based on a person's race, sex, age, or other prohibited criteria.
By and large, provincial laws mirror the federal law. The major exceptions are pay equity and employment
equity.
o Provincial human rights laws: All provinces and two territories have their own human rights laws
and human rights commissions, with discrimination criteria, regulations, and procedures.
The Canadian Human Rights Act
The Canadian Human Rights Act: A federal law prohibiting discrimination; was passed by Parliament on July 14,
1977, and took effect in March 1978.
The act applies to all federal government departments and agencies, Crown corporations, and business
and industry under federal jurisdiction. In areas not under federal jurisdiction, protection is given by
provincial human rights laws.
Each of Canada's provinces and territorieswith the exception of Nunavut, which is still under federal
jurisdictionhas its own antidiscrimination laws, which are broadly similar to the federal law.
Discrimination Defined: Webster's New World Dictionary of the American Language defines discrimination as: “a
showing of partiality or prejudice in treatment; specific action or policies directed against the welfare of minority
groups.” Discrimination is not defined in the Charter of Rights and Freedoms, nor in any federal or provincial
human rights legislation with the exception of Quebec.
Direct Versus Indirect (Systematic) Discrimination
Bona fide occupational qualification (BFOQ): A justified business reason for discriminating against a member of a
protected class.
Systemic discrimination: Any company policy, practice, or action that is not openly or intentionally discriminatory,
but has an indirect discriminatory impact or effect.
Canadian Human Rights Commission (CHRC): Supervises the implementation and adjudication of the Canadian
Human Rights Act.
Race and Colour: the discrimination can be intentional or unintentional, subtle or very open
National or Ethnic Origins: illegal for human resource decisions to be influenced by the national or ethnic origins of
applicants or of their forebears. Hence, the discrimination process can be either direct or indirect. The refusal to
hire or promote people because of their national or ethnic origins is a direct and obvious violation
Religion: A person's religious beliefs and practices should not affect employment decisions. An employer must
accommodate an employee's religious practices, unless those practices present undue hardship to the employer
Duty to accommodate: Requirement that an employer must accommodate the employee to the point of
“undue hardship.”
Age: The use of age as an employment criterion has also received considerable attention in the past. Many
employers consider that the laying down of minimum or maximum ages for certain jobs is justified, although
evidence is rarely available that age is an accurate indication of one's ability to perform a given type of work
Sex: prevents discrimination on the basis of an individual's sex (often erroneously referred to as gender, which is a
grammatical term; the act specifically uses the term sex). Not only is it illegal to recruit, hire, and promote
employees because of their sex, it is unlawful to have separate policies for men and women.
The court established three new criteria to assess the appropriateness of a BFOQ:
o Is the standard rationally connected to the performance of the job?
o Was the standard established in an honest belief that it was necessary to accomplish the purpose
identified in stage one?
o Is the standard reasonably necessary to accomplish its purpose?
The new and stricter rules will make it more difficult for human resource managers to establish and
defend BFOQs.
Sexual Orientation: The issue of discrimination against same-sex relationships was effectively addressed by the
Supreme Court of Canada when it decided that same-sex couples must be treated the same way as heterosexual
couples.
Marital Status: The idea of what constitutes a family has undergone considerable changes in Canadian society in
recent years. Non-traditional families, such as those resulting from common-law marriages, or single-parent
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