2BC3-CH3.docx

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11 Apr 2012
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Commerce 2BC3
Chapter 3: Legal Environment of Equal Employment and Diversity
Canada’s Legal Framework
- Has a complex set of laws governing how individuals are to be treated in the workplace and in
society
- 2 sets of laws govern the equal employment opportunity of workers in either the federal or the
provincial and territorial sectors of the country
- The Canada Labour Code and the Canadian Human Rights Act govern the federal sector, which
applies to about 10 percent of the Canadian workforce
- Federal: Includes interprovincial and international services
- Employment equity and pay equity
- Provisions for health and safety and labour relations
- The remaining 90 percent of the workforce is covered under provincial and territorial labour
legislation
The Canadian Charter of Rights and Freedoms
- Federal law enacted in 1982, guaranteeing fundamental rights and freedoms to all Canadians
- The Constitution is a set of laws containing the basic rules about how our country operates
- Is the supreme law of Canada and it can override any laws that are inconsistent with its
provisions
- The courts handle any challenges
- The basic premise of the Charter is that it guarantees the rights and freedoms of individuals
- These rights are guaranteed but can also be limited by Section 1 of the Charter, and can be
temporarily invalidated by the notwithstanding clause of the Charter
- Everyone has the following fundamental freedoms:
(a) Freedom of conscience and religion
(b) Freedom of thought, belief, opinion and expression, including the freedom of the press and
other media of communication
(c) Freedom of peaceful assembly
(d) Freedom of association
- Also have mobility, legal, and equality rights
- Has had a major impact I the promotion and protection of human rights in Canada
- Also possible for governments to pass laws that take away some rights under the Charter
- A law that limits Charter rights under the notwithstanding clause expires after 5 years
- Freedom of Association includes the right to join a trade union
Human Rights
- Adopted legislation that prohibits discrimination on various grounds in relation to employment,
the provision of goods, services, and facilities customarily available to the public, and
accommodation
- It provides protection against discrimination by individuals in the private sector, as well as by
governments
Provincial and territorial human rights legislation: All province and territories have their own
human right laws and commissions prohibiting discrimination in employment
Canadian Human Rights Act: A federal law prohibiting discrimination in employment under
various prohibited grounds
What is Discrimination?
- Means treating people differently, negatively, or adversely without a good reason
- Means making a distinction between certain individuals or groups based on a prohibited group
- Canadian courts have recognized 2 types of illegal discrimination:
1) Direct discrimination
2) Adverse effect discrimination
Direct Discrimination
- An adverse distinction based on a prohibited ground
Bona fide occupational requirement (BFOR): A justifiable reason for discriminating against a
member of a designated group
To be considered, a job requirement that is being challenged must pass the 3-part test set out
by the Supreme Court of Canada
1) The employer must show that it adopted the standard for a purpose rationally connected to the
performance of the job
2) The employer must establish that it adopted the particular standard in an honest and good faith
belief that it was necessary to the fulfillment of that legitimate work-related purpose
3) The employer must establish that the standard is reasonably necessary to the accomplishment
of that legitimate work-related purpose
Undue hardship: Pertains to the significant difficulty or expense imposed on an employer in
making an accommodation for individuals with disabilities
Indirect or adverse Effect Discrimination
- Aka systemic (or constructive) discrimination
- Occurs when a seemingly neutral policy or practice results in unintentional discrimination
- To avoid a complaint on prohibited grounds an employer would be required to prove 2 things:
1) That was a rational connection between the job and the standard or policy
2) That it was not possible to accommodate the specific complainant without incurring undue
hardship
- Unable to prove Policy would fail
- Prove successfully the standard would remain intact and the focus would shift to individual
accommodation
Examples of employment criteria that have an adverse impact on designated group members and
that have been challenged in the courts
- Implementing minimum height and weight standards
- Word of mouth hiring
- Cognitive ability tests
- Seniority-based systems
- Not having selection processes that focus on particular accommodation needs
Duty to Accommodate
- An employer’s legal duty to take reasonable steps, in policies or conditions of work, to
accommodate an employee’s individual needs
- Applies to all prohibited grounds of discrimination
Eg. Religious holidays and physically disabled employees
Prohibited Grounds
Race or Colour
- Racial discrimination means any distinction, exclusion, restriction, or preference based on ace,
colour, descent, or national or ethnic origin that has the purpose of effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural, or any field of public life
- Enable racism prevention officers
Religion and Creed
- The Canadian Human Rights Act prohibits discrimination on the basis of religion
- The Ontario Human Rights Code, prohibits discrimination on the basis of creed
- 2 terms are virtually synonymous
- Usually indirect discrimination
Age
- Ageism as defined by the Ontario Human Rights Commission refers to 2 concepts a socially
constructed way of thinking about older persons based on negative attitudes and stereotypes
about aging and a tendency to structure society based on an assumption that everyone is young,
thereby failing to respond appropriately to the real needs of older persons
- Stereotypes: less productive, less flexible, unable or unwilling to adapt to new technologies,
prone to absenteeism, and less capable of engaging in physically demanding or stressful work
- Not only associated with older workers
Sex
- Discrimination based on sex and on the basis of pregnancy is prohibited across Canada
- The right to equal treatment without discrimination or harassment because of sex extends to all
persons
Sexual Orientation
- The legal rights of lesbians and gay men in Canada have been the subjects of considerable
judicial, political, and legislative activity
- Legal issues relating to sexual orientation relating to sexual orientation has arisen in 2 contexts:
1) The prohibition of discrimination, primarily to ensure that individual lesbians and gay men are
not discriminated against
2) The recognition of same-sex relationships, and the extension to homosexual partners of the
benefits and rights that are accorded to unmarried heterosexual partners
- Issue: individuals who have had or are undergoing sex-change surgery and therapy
- Clarification of HR policies
- Reactions of co-workers
- Continuing acceptance
Marital Status
- Means the status of being married, single, widowed, divorced or separated, and includes the
status of living with a person in a conjugal relationship outside marriage
- Should not be bearing on employment decisions
Family Status
- The Ontario Human Rights Code “currently prohibits discrimination on the basis of family status
in the areas of employment, housing, contracts, vocational and professional associations, and
services, goods, and facilities
Nepotism: Practice of allowing relatives to work for the same employer
- Anti-nepotism policies must allow for exceptions that might lead to conflicts of interest
Disability
- Defined as being either physical or mental, or previous or existing; includes dependence on
alcohol and a drug
- Can be temporary or permanent
- To make reasonable accommodations
Record of Criminal Conviction and Pardoned Conviction
- Ask the question only if it directly affects the job
- Under the Criminal Records Act, a federal government job application cannot ask questions that
could expose a conviction for which a pardon has been granted
- Asked Answer
- Application Ask for a copy of the application and forward it to the Canadian Human Rights
Commission
Filing a Complaint
- The Canadian Human Rights Commission tries to resolve complaints of discrimination filed
against federally regulated employers, unions, and service providers
- To file, an inquiries questionnaire can be completed
Harassment
- Defined as any unwanted physical or verbal conduct that offends or humiliates you
- Is a type of discrimination
Many forms:
Threats, intimidation, or verbal abuse
Unwelcome remarks or jokes about subjects like your race, religion, disability, sex, or age
Displaying sexist, racist, or other offensive pictures or posters
Sexually suggestive remarks or gestures
Inappropriate physical contact, such as toughing, patting, pinching, or punching
Leering or whistling
Outright demands for sexual favours
Physical assault, including sexual assault
Sexual Harassment
- Does one person toward another direct unwanted, often coercive, sexual behaviour
- Can be emotionally abusive and creates an unhealthy unproductive atmosphere in the
workplace
Consensual Relationships and Workplace Romances