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HRM 3420 Study Guide - Final Guide: Fide, The Employer

Human Resources Management
Course Code
HRM 3420
Chris Sweeney
Study Guide

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When working on the Human Rights Code, it is useful to consider two questions to determine if
an employer rule or practice violates the Code:
1. Does the Rule or Practice Discriminate, Directly or Indirectly, on a PROHIBITED
Remember that the Code does not prohibit every type of differential treatment of employees. The
Code only governs conduct that falls within one of the grounds that the government has elected
to protect. If the employee’s claim does not fall within one of the prohibited grounds in Section
5, then the Code does not apply. So pay close attention to what those listed grounds cover and
what they do not cover.
2. If the Rule or Practice DOES discriminate against an Employee on a PROHIBITED
ground, then is that Discrimination nevertheless permitted (or exempted) by a special rule
in the Code?
The Code allows for some types of discrimination to occur, even when the discrimination on the
basis of a prohibited ground. The government created these exceptions because it recognizes:
a) That an employer should only be required to go so far in its efforts to overcome barriers in the
workplace; and
b) That sometimes there are public policy reasons that justify the discrimination.
You can think of these exemptions as defences available to the employer who is accused of
discrimination under the Code.
1. 1. Discrimination on the Basis of DISABILITY, when the employee/job applicant is
unable to perform the essential elements of the job. (Section 17)
Pay attention to how this section is worded. It says an Employer can discriminate on the basis of
disability when a disabled worker is unable to perform the essential duties of a job. However, it
then says that a worker won’t be found to be unable to perform the essential duties of a job
unless it is not possible to accommodate their disability so as to enable them to perform the
duties, without the employer suffering undue hardship.
2. Indirect Discrimination that is Reasonable and Bona Fide (Section 11)
This section says that a rule that does not discriminate directly (on its face) is nevertheless
discrimination if it adversely affects an employee who is identified by one of the prohibited
grounds. However, the employer has a defence if the rule is reasonable and bona fide and it is
not possible to accommodate the employee without causing undue hardship.
The remaining 5 exemptions (or Employer Defences) are described clearly on pages 42-43
of the textbook.
3. Bona Fide Occupational Qualification (Section 24(1)(b))
This section overlaps Section 11, but is different in that it allows direct discrimination whereas
Section 11 only deals with indirect discrimination. But note that it only applies to four grounds:
Age; Sex; Record of Offences; and Marital Status. If those four grounds are a Bona Fide
Occupational Qualification (Requirement), then the section says the employer can give
preference to workers on those grounds, but the employer has an obligation first to consider
accommodation to the point of undue hardship to see if people not characterized by one of
those four grounds could perform the job.
An example would be a guard at a women’s prison. The employer may give preference to
females for those jobs and argue that being a female is a Bona Fide Occupational Requirement of
being a guard in a women’s prison because of women’s privacy issues. The male applicant might
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