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Chapter 2

CLAW525 Chapter 2.docx

6 Pages
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Department
Law and Business
Course Code
LAW 529
Professor
Peter Wilson

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CLAW525 Chapter 2: Human Rights Issues
Introduction
- Human right statutes apply to applies to actions of all individuals and corporations
- Rules with negative effect on protected group is discriminatory thus illegal
Unless employer can demonstrate Bona Fide Occupational Qualification (BFOQ)
- To be a BFOQ, must meet the Meiorin test. Rule or requirement must be:
Overview of Ontario’s Human Rights Code
- Preamble: Recognize the inherent dignity and equal and inalienable rights of all members of the
human family, and provides for equal rights and opportunities without discrimination to create
climate of understanding and mutual respect
Does not contain specific legislation but affect broadest interpretation of the Code\\
Key feature:
1. Code applies to private and public sector and to conduct of individuals
2. Current Human Rights Code prohibits discrimination in employment on 14 grounds and
sexual/other harassment in workplace
3. The definition of discrimination has expanded to not only the intention but also the effect of
the rule (such as requiring employee who is not available for religious reason). Employer
have to accommodate special needs of protected individuals unless with undue hardship
4. NO one can contract out Code
5. Remedial legislation : exist to right societal wrong and give affected person or group remedy,
not to allocate blame or punish someone (imprisonment)
6. Quasi-constitutional law : When conflict arise, Code always prevails unless specified
7. Applies to every stage of employment
Areas Covered
- 5 areas:
1. Services, good and facilities
2. Accommodations (housing)
3. Contracts
4. Employment
5. Membership in vocational association and trade unions
- Employment covers: full/part time employment, contract work, temporary work, probationary
periods and in some cases volunteer
- Also language is not a prohibited grounf, it can be an element of other grounds such as race, color,
ethnic origin , place of origin and ancestry
1. Adopted for purpose rationally connected to performance of job
2. Adopted in honest belief that it’s necessary to satisfy a legitimate business purpose
3. Reasonably necessary to accomplish that purpose.
Employer must show that is was impossible to accommodate group without creating
undue hardship for itself (but standard is fairly high
Prohibited Ground of discrimination in Employment
- s.5 states that every person is entitled to equal treatment with respect ot employment without
discrimination of the following basis
- See chart for prohibited grounds
Additional grounds of discrimination
Discrimination because of association
- Code also protects individual from being discriminated against because of her
relationships with people identified by a prohibited ground
Discriminating employee because she is associated with someone with a certain belief (NOT
covering political stand)
Discrimination through reprisal
- Right to enforce their rights under Code without reprisal (s.8).
Employer who retaliate against someone for asserting his rights/refusing to
discriminate infringes the code
Discrimination not covered by the code
- Does not protect political conviction or social status, physical appearance unless it touches a
prohibited ground (such as nose ring for fashion VS religion)
- Similar in other provinces, but not identical
Exemptions: Where discrimination is allowed
- Exemptions are of limited application and are interpreted narrowly
- As code restrict types of question to be asked in application, often Employer cannot explore
whether exemption apply until later in hiring process, usually at job interview /after it makes a
conditional offer of employment
1. Special Service Organization (s.24 (1)(a))
- Non- profit religious, philanthropic, educational, fraternal, social organization that primarily serve
people identified by their race, ancestry, place of origin, color, ethnic or origin, creed, sex, age, atrial
status or disability
Must serve and hire people identified by particular enumerated ground. So if you were to
exclude lesbian workers, your clients have to be under the same rule
- Right is not infringed where they give employment preference to members of the group, when
preference is reasonable and bond fide requirement for job in question
- Employers do not have to accommodate
For faith based organization, counselors must be of relevant faith but not for janitors
2. Bona Fide Occupational Qualifications (s. 24 (1)(b))
- Can discriminate on basis of age, sex, record of offences or martial status if these are the genuine
requirements of the job
- Employers must consider whether accommodation could be made under s. 24(2)
You can exclude hiring woman for male attendant in male locker but if it is minor part of the
job, can you to redefine job to accommodate female candidate?
3. Nepotism Policies (s. 24(1)(d))

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Description
CLAW525Chapter2HumanRightsIssuesIntroductionHumanrightstatutesapplytoappliestoactionsofallindividualsandcorporationsRuleswithnegativeeffectonprotectedgroupisdiscriminatorythusillegalUnlessemployercandemonstrateBonaFideOccupationalQualificationBFOQ1Adoptedforpurposerationallyconnectedtoperformanceofjob2Adoptedinhonestbeliefthatitsnecessarytosatisfyalegitimatebusinesspurpose3ReasonablynecessarytoaccomplishthatpurposeEmployermustshowthatiswasimpossibletoaccommodategroupwithoutcreatingunduehardshipforitselfbutstandardisfairlyhighTobeaBFOQmustmeettheMeiorintestRuleorrequirementmustbeOverviewofOntariosHumanRightsCodePreambleRecognizetheinherentdignityandequalandinalienablerightsofallmembersofthehumanfamilyandprovidesforequalrightsandopportunitieswithoutdiscriminationtocreateclimateofunderstandingandmutualrespectDoesnotcontainspecificlegislationbutaffectbroadestinterpretationoftheCodeKeyfeature1Codeappliestoprivateandpublicsectorandtoconductofindividuals2CurrentHumanRightsCodeprohibitsdiscriminationinemploymenton14groundsandsexualotherharassmentinworkplace3ThedefinitionofdiscriminationhasexpandedtonotonlytheintentionbutalsotheeffectoftherulesuchasrequiringemployeewhoisnotavailableforreligiousreasonEmployerhavetoaccommodatespecialneedsofprotectedindividualsunlesswithunduehardship4NOonecancontractoutCode5Remediallegislationexisttorightsocietalwrongandgiveaffectedpersonorgroupremedynottoallocateblameorpunishsomeoneimprisonment6QuasiconstitutionallawWhenconflictariseCodealwaysprevailsunlessspecified7AppliestoeverystageofemploymentAreasCovered5areas1Servicesgoodandfacilities2Accommodationshousing3Contracts4Employment5MembershipinvocationalassociationandtradeunionsEmploymentcoversfullparttimeemploymentcontractworktemporaryworkprobationaryperiodsandinsomecasesvolunteerAlsolanguageisnotaprohibitedgrounfitcanbeanelementofothergroundssuchasracecolorethnicoriginplaceoforiginandancestry
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