The Changing Legal Emphasis Session 2

The Changing Legal
Session 2
The Legal Framework for
Employment Law in Canada
Government – Federal & Provincial Laws
Regulatory Bodies: Commissions/Boards/Tribunals
Human Resources
• Stay current on laws, interpretation of the laws, &
court rulings
• Develop & administer programs to ensure
company compliance
• Obtain, maintain and retain optimal workers
Hierarchy of Employment Legislation in Canada:
• Government sets legislation
Provincial/territorial employment laws
• all other employers (90% of Canadian workers)
Frameworks to abide by
Frameworks to abide by
• Canadian Charter of Rights & Freedoms – guarantees equal
rights before the law
• Human Rights Act – equal employment opportunity without
regard to race, national/ethnic origin, colour, religion, age, sex,
sexual orientation, marital status, family status, disability, or
pardoned conviction
• Employment Equity – remove employment barriers and
promote equality for four designated groups: women, persons
with a disability, Aboriginal people, and members of a visible
• Pay Equity – Equal pay for equal work, regardless of sex
• Collective Bargaining Agreement
• Employment Contract
Legislation Protecting the General
• Tort Law
• Primarily Judge-based
• precedent and jurisprudences set by one judge through his or her
assessment of a case
• establishes how similar cases will be interpreted.
• Intentional – assault, battery, trespass.
• Unintentional – negligence caused by carelessness
• The Canadian Charter of Rights and Freedoms
• Equality Rights (section 15)- right to equal protection and benefit of
the law without discrimination
• Freedoms:
• freedom of conscience and religion
• freedom of thought, belief, expression and opinion
• freedom of peaceful assembly
• freedom of association
Legislation Protecting the General
• Equal employment opportunity without regard to minority
• Act applies to all federal government department & agencies,
crown corporations and organizations under federal jurisdictions
(banks, airlines, etc.)
• Organizations not under federal jurisdiction must oblige
to provincial human rights laws
• Provincial laws very similar to federal laws
Legislation Protecting the
General Population
• Prohibits discrimination: a distinction, exclusion or
preference based on one of the prohibited grounds that
has the effect of nullifying or impairing the right of a
person to fully and equal recognition and exercise of
his/her human rights and freedoms
• Provides equal employment opportunities for members
of protected groups
Necessary Discrimination?
• Bona Fide Occupational Requirement (BFOR)
• Under certain circumstances intentional, direct discrimination is
• For example – Can engage in age discrimination at establishments
that serve alcohol where all employees must be over the legal
drinking age
• How to determine the appropriateness of a BFOR?
• Rationale: Is the policy/procedure that resulted in discrimination
based on a legitimate, work related purpose?
• Good faith: Did the decision makers of the organization honestly
believe that the requirement was necessary to fulfill the
requirements of the role?
• Reasonable necessity: Was it impossible to accommodate those
who have been discriminated against without imposing undue
hardship on the employer?
Examples of Systematic Discrimination
Reasonable Accommodation
Requirement for Reasonable Accommodation
• adjustment of employment policies/practices so that no individual
is denied benefits or is disadvantaged
• based on prohibited grounds in human rights legislation
• e.g. work station redesign for wheelchair
Undue Hardship
• financial costs make accommodation impossible
• Basis determined by courts
• differential treatment
• enumerated ground (protected by legislation)
• substantive sense (is burden imposed or benefit withheld?)
• Accommodation
• respect dignity
• discrimination must be legally defensible
• most appropriate accommodation should be undertaken
Legislation Protecting the General
• direct
• differential or unequal
• indirect (3rd party)
• by association
• constructive or systemic
• embedded in policies with
adverse impact on
specific groups
Indirect discrimination often occurs due to implicit stereotype biases –
making implicit assumptions about someone’s personality, ability, or
skills based on the social group to which they belong (Outcomes are
often the same).
Unintentional Discrimination
• maximum height/weight requirements
• limited accessibility to company premises
• job evaluation systems that are not genderneutral
• lack of a harassment policy or guidelines
Types of Complaints Received by the Canadian
Human Rights Commission in 2016
Implicit biases impact on HR practices
• Ethnicity/Nationality: Identical resumes, half with traditionally
African American names (e.g. Lakisha & Jamal), half with White
sounding names (e.g. Emily & Greg). Resumes with white sounding
names received 30% more callbacks (Bertrand & Mullainthan, 2003);
Similar experiment with Arab sounding names received 50% fewer
callbacks (Derous, Ryan, & Nguyen, 2012)
• Sexual Orientation: When confederates applied for jobs
(unknowingly) portrayed as homosexual or not, those portraying
homosexuals reported poor interpersonal reactions and less
favourable perspectives that they would get hired. (Hebl, Foster,
Mannix, & Dovidio, 2002)
• Sex: Women who are ambitious are more likely to be targeted with
interpersonal harassment and workplace aggression (Berdahl, Bai &
Schiemer, 2014)
Surprising implicit biases impact on HR
Physical Appearance
• Weight: As compared to average weight employees,
overweight employees evaluated more negatively, hired less
frequently (Rudolph, Wells, Wellon, & Baltes, 2009), less likely
to be invited to an interview (Agerström & Rooth, 2011), and
their performance was evaluated as they were less motivated
and had lower work ethic (Shapiro, King, & Quinoeses, 2007)
• Physical Attractiveness: Across a large meta-analysis, physical
attractiveness is positively associated with hiring, promotion,
and performance evaluations (Hosoda, Romero, & Coats,
• Height: Positive relationship between height and income
(Judge & Cable, 2004)
Employment Equity Act
• based on Charter of Rights and Freedoms
• applies to federally regulated employers only
• promotes equality, removes employment barriers
• Four designated groups:
• Women
• Visible minorities
• Persons with disabilities
• Aboriginal people
Why Organizations Should Commit to
• Why bother with diversity management?
• Labour pool is no longer “pale, male, & stale” – Canadian labour
market very diverse
• Need to retain your talent – knowledge workers particularly
• Diversity as a competitive advantage – particularly for
• Increased financial performance – positive relationship
between organizational diversity and book to market equity
(Roberson & Park, 2007), racial diversity and productivity,
return on equity and market performance (Richard, 2000) and
boards with greater gender diversity demonstrate superior
firm performance (Erhardt, Werbel, & Shrader, 2003)
How Organizations can Commit to
• Senior Management Commitment – focus on all aspects of HR
with respect to diversity
• Diversity Committee – serves as the link across employees,
management & union. Should reflect all employee groups
• Education & Retraining – all ranks should receive training
• Communication of changes – must be communicated
throughout organization
• Evaluation of Results and Follow Up – keep metrics, conduct
diversity audits, follow up on necessary actions
What do organizations do?
• Diversity training programs: builds awareness of the
importance of
• diversity and teach employees on how to respond to
• Mentoring programs & Apprenticeships: formal/informal. Be
careful of counterproductive mentoring with females!
• Alternate work arrangements: can be used to accommodate
unique needs
• Support groups: provide support for those who might feel
• Communication: formal protocols for communication
procedures to avoid
• offence (ex – chairperson rather than chairman)
• “Unwelcome behaviour that demeans, humiliates or embarrasses a
person and that a reasonable person should have known would be
• Humiliating an employee in front of coworkers
• Written or verbal abuse
Sexual Harassment
• “Offensive or humiliating behaviour that is related to a person’s sex, as
well as behaviour of a sexual nature that creates an intimidating,
unwelcome, hostile, or offensive work environment or that could
reasonably be thought to put sexual conditions on a person’s job or
employment opportunities.”
• Unwelcome sexual remarks, invitations, or requests
• Employer Responsibility
• protect employees from harassment
• includes harassment by clients or customers
Harassment Policies
To reduce liability, employers should develop and integrate a
policy that includes:
1. a clear workplace anti-harassment policy statement
2. information for victims (definitions, examples)
3. employees’ rights and responsibilities
4. employers’ and managers’ responsibilities
5. anti-harassment policy procedures
6. penalties for retaliation against a complainant
7. guidelines for appeals
8. other options such as union grievance procedures and human
rights complaints
9. how the policy will be monitored and adjusted
Employment Labour Standards
• laws present in every Canadian jurisdiction that
establish minimum employee entitlements and
set a limit on the maximum number of hours of
work permitted per day a week
• establish minimum terms for:
• Wages, paid holidays, maternity/paternity
leave, etc.
• complaints filed with ministry of labour or
Privacy: A Double-edged Sword
• Employer has right to prevent liability to the company
• eliminate time wasted on personal matters
• prevent abuse of company resources
• Employees have right to:
• control over information about themselves
• freedom from interference in their personal life
• Internet/Email/Phone Usage?
• Video Surveillance?
Respecting Employee Privacy
• Respecting Employee Privacy:
• Personal Information Protection and Electronic
Documents Act (PIPEDA):
• Law governs collection, use, and disclosure of personal
• Employers must get consent from employees when
information is collected.
• Electronic monitor of employees is permitted.
• Employers should have written policy.
Respecting Employee Privacy
• Respecting Employee Privacy:
• Video Surveillance:
• Monitor productivity.
• Prevent employee theft and vandalism.
• Employees must be made aware.
• Not advised if reasonable alternatives exist.

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