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Chapter 2

Law 529 Filsinger Chapter 2.docx

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Ryerson University
Law and Business
LAW 529
Pnina Alon- Shenker

Law 529 Filsinger- Chapter 2: Human Rights Issues Christie v. York Corp (p.30)  In 1936 plaintiff went to a bar and was refused service because he was a coloured person.  At the time refusal to serve individual based on race was legal Human Rights Code: Key Features  Broad Purpose: o Preamble o Remedial legislation (looks to rights a societal wrong, and give effected person or group remedy, not to allocate blame or punish offender) o Quasi-constitutional law (if there is conflict between Code and another Ontario law such as ESA, Code prevails unless other law states it applies despite Code)  Applies to both private and public sector  Code provides civil remedies such as ordering employer to compensate for loss wages or mental suffering NO CRIMINAL PENALTIES)  Human rights statutes apply to actions of individuals and corporations  Even a rule such as all full-time employees should be required to work on Saturdays may infringe code if it negatively effects a person who has religious functions on Saturday  There are 14 prohibited grounds of discrimination in employment: o Race, ancestry, place of origin, colour, ethnic origin o Citizenship o Creed o Sex, sexual orientation, marital status, family status o Record of Offences o Age o Disability  The Code applies to every stage of the employment relationship.  “Employment” includes full and part time employment, contract work, temporary work, probationary periods of employment and in some cases volunteer work.  It includes non-unionized and unionized employees.  Covers five key social areas: o Employment (s. 5) o Housing o Contracts o Goods and services o vocational associations (e.g. trade unions  Bona Fide Occupational Qualification (BFOQ): reasonably necessary qualification or requirement imposed in sincere belief that it is related to job performance 3 part test as in British Columbia v BCGSEU (MEIORIN CASE)** (p.31)  Case involved female firefighter who after 3 successful years on job was terminated when she failed to meet one aspect of new physical fitness test imposed by employer  Test results were modelled on average time of male fire fighters.  Court held that to be a BFOQ rule or requirement must be: 1. Adopted for a purpose rationally connected to performance of a job 2. Adopted in an honest belief that it was necessary t satisfy a legitimate business purpose 3. Reasonably necessary to accomplish that purpose. To establish this, the employer must show that it was impossible to accommodate the individual or group without creating hardship for itself (sets high standard for employers in justifying a discriminatory job requirement or rule) Hydro-Quebec v. Syndicat  The SCC in Meiorin used the word “impossible” to define undue hardship.  In 2008, in the Hydro-Quebec case, the SCC clarified the test.  Laverriere, a clerk with Hydro Quebec, missed 960 days of work over a 7 year period (mental and physical health problems).  She had a personality disorder that made her relationships with supervisors and co-workers difficult.  None of employer’s accommodation attempts (lighter duties, gradual return to work, changing departments) were successful; it was clear that accommodation would have to be constantly adjusted.  Her doctor recommended she stop working until her work-related dispute, which was causing her stress, was resolved.  Five months later, employer fired her and she sued.  The arbitrator held that this degree of accommodation constituted undue hardship.  Quebec Court of Appeal found that frequently changing accommodation requirements was not an “undue hardship” for a large company like this employer because it was not “impossible”.  The SCC found that the employer had shown undue hardship.  The duty to accommodate has limits. Employer is not required to “completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration”.  Where employer has taken all reasonable measures to accommodate an employee and enable her to do her work but the employee still remains unable to do so in the reasonably foreseeable future, the employer has established undue hardship.  The standard remains high. Prohibited Grounds of Discrimination in Employment  S. 5 of Code provides that every person is entitled to equal treatment with respect to employment without discrimination on basis of race, ancestery, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offenses, marital status, family status, or disability Race: not a defined ground, but can often be related to other grounds such as colour or ethnic origin (exemption exists Special service organizations: non- profit social and other organizations that serve a protected group) Colour: skin colour (special service organization exemption) Ancestry: family descent (special service organization exemption) Place of Origin: country or region of birth including region within Canada (special service organization exemption) Ethnic Origin: cultural component. (special service organization exemption) Citizenship: basis of citizenship status, including status as landed immigrant, refugee, or non-permanent resident (exceptions set out in s.16 of Code) Creed: basis of religion or faith, but not based on political convictions  2 protections: prohibits one person from attempting to force another to accept or comply with a particular religious belief or practice may require employer to take positive measures, such as allowing breaks for prayer at certain times (special service organization exemption) Sex: male or female, gender identity, and under pregnancy. Category also protects the rights to breastfeed in public areas (special service organization exemption, and BFOQ’s under s.24(1)(b)) CASE: Mottu v. MacLeod and others (p.36)  Mottu started work at nightclub when she was 21  In april there was fundraisor with beach theme and employer informed her if she wanted to work that night she must wear bikini top and surfer shorts  She decided to work and wore top or bikini  Employer was annoyed with her and cut her hours and made her work in dark corner at back of club  She quit and filed Human Rights Code lawsuit based on sex discrimination  BC Human Rights Tribunal found employers actions constituted for discrimination on bases on sex  Found employers subsequent actions were retaliatory and intented to make Mottu resign  Tribunal rewarded her $3000 for loss wages, and $3000 for injury to dignity and self-respect Sexual Orientation: concerns person’s sexuality including gay, straight, lesbian, bi- sexual, and heterosexual people (no exemptions) Age: defined as 18 years or older. Someone under 18 cannot make an age-based application related to employment but can challenge another area of Code  Age used to be 18-64 prior to 2007 and the ceiling age of 64 was eliminated to ensure no one is forced to retire at 65.  Some discrimination against persons 65 or older is permissible (i.e. health benefit provisions) Record of Offences: means provincial offences or pardoned federal offences  It is legal however, to discriminate on bases of criminal offence for which no pardon has been obtained CASE: Quebec v. Maksteel Quebec Inc (p.38) Marital Status: refers to person being married, single, widowed, divorced, separated, or living in common0law relationship  (special service organization exemption)  Nepotism policies (policies that allow employer to discriminate either in favour of or against specific close relatives of employees) Family Status: The status of being in a parent and child relationship, inclusive of adopted children, stepchildren, and foster children CASE: B v. Ontario(p39) Disability: described in s.10 and covers-  Physical disability or disfigurement caused by injury, illness, or birth defect  Phychiatric disability  Disability for which benefits were claimed or received under workers compensation system  Substance abuse (drugs and alcohol)  A “perceived” disability, CASE: Quebec v. Montreal City (p.40) (employee not hired b/c of POSSIBLE future impairement due to curvature in spine)  Ouimette v. Lily Cups LTD said: disability does not include minor, temporary illness to which general public is susceptible such as flu or common cold  Code recognizes that some disabilities would prevent employee from performing job (i.e. blind person driving school bus) but there are strict limits on employer’s ability to claim that employee is unable to perform job  Under s.17 employer must eliminate the non-essential requirements of the job and modify the existing job requirements to enable disabled persons to carry out the essential job duties unless causes undue hardship to employer Additional Grounds of Discrimination  Discrimination because of Association (s. 12)  Court protects individual from being discriminated against because his relationship with people identified by a prohibited ground  However, if employee associates with particular political party and is discriminated, that is not covered by Code b/c it is not one of prohibited grounds  Reprisals prohibited (s. 8): the employer may not retaliate against someone for: o asserting rights under Code, or o refusing to discriminate based on a prohibited ground o client preference is not a defense (i.e. client’s prefer women servers)  To engage the protection of the Code, the discriminatory treatment must be based on one of the
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