Discrimination and Human Rights in the Workplace

Understanding Discrimination & Human Rights Complaints

• Employers must maintain workplaces free from discrimination and harassment.
• These obligations apply throughout the entire employment relationship.
• This includes hiring, training, transfers, promotions, compensation, performance evaluations, discipline, termination, and layoffs.
• Relevant legislation includes Alberta’s Human Rights Act and British Columbia’s Human Rights Code.

What is Discrimination?

• Discrimination does not need to be intentional, the outcome matters more than the intent.
• A legal test for discrimination involves determining:
  • If the complainant has a characteristic protected by legislation.
  • If the complainant suffered an adverse impact on their employment.
  • If the protected characteristic was a factor in the adverse impact.
• Systemic discrimination involves neutral policies that result in discriminatory effects.

Overview of the Legislation: Areas Covered

• Legislation covers publications, notices, goods, property, services, and accommodations.
• It also includes tenancies and employment practices, including equal pay and advertisements.
• Most complaints relate to employment: 65% in BC and 85% in Alberta.
• Legislation also addresses membership in trade unions and occupational associations.

Overview of the Legislation: Protected Grounds - Alberta

• Race
• Religious beliefs
• Colour
• Gender
• Sexual orientation
• Physical disability
• Mental disability
• Age
• Ancestry
• Place of origin
• Marital status
• Family status
• Gender identity
• Gender expression
• Source of income

Overview of the Legislation: Protected Grounds - BC

• Race
• Religion
• Colour
• Sex
• Sexual orientation
• Physical disability
• Mental disability
• Age
• Ancestry
• Place of origin
• Marital status
• Family status
• Political belief
• Criminal or summary conviction unrelated to employment

Discrimination in Hiring

• In Morrison v AdvoCare, a male registered care aide was not hired.
• A key question was whether the refusal to hire was discrimination based on sex.
• A test for prima facie discrimination in hiring is to determine:
  • The complainant was qualified for the job.
  • The complainant was not hired, and either:
    • Someone less qualified but lacking the protected characteristic got the job.
    • The employer continued seeking similarly qualified applicants.

Overview of the Legislation: Equal Pay for Equal Work

• Alberta and BC require employees of any sex to receive equal pay for similar work.
• Employers cannot reduce higher-paid employees' wages to ensure equal pay.
• Pay equity comparing dissimilar jobs based on value is not required in Alberta and BC.
• Employment equity, addressing underrepresentation of certain groups, is mainly required in the federal sector.

Overview of the Legislation: Where Discrimination is Allowed

• Discrimination is allowed when based on a bona fide occupational requirement (BFOR).
• It is also allowed when a contravention of the Act is reasonable and justifiable.
• Alberta has special exemptions for age and marital status regarding pension plans/insurance.
• BC has exemptions for non-profit organizational memberships that promote the welfare of an identifiable group.

Overview of the Legislation: Making a Complaint

• Complaints must be filed within a specific time limit.
  • Alberta: 1 year from the incident.
  • BC: 6 months from the incident.
• Applications are reviewed for completeness, jurisdiction, and merit.
• Respondents receive a copy of the complaint and a time limit to respond.
• If there is no response, the complaint may proceed without further input from the respondent.
• Settlement attempts may occur, with investigations possibly occurring in Alberta.
• The case is then heard by a human rights tribunal.

Overview of the Legislation: Remedies

• Remedies include ceasing discriminatory policies or behaviors.
• Refraining from repeating discriminatory acts in the future.
• Providing the complainant with lost opportunities or privileges.
• Compensating the complainant for lost wages, income, or expenses.
• Taking any action to restore the complainant to their rightful position.

Issues in Recruitment, Selection, & Hiring: Essential Requirements of the Job

• Job descriptions should be current, accurately reflect employer needs, and identify essential requirements.
• If an essential job requirement negatively impacts a person on a prohibited ground, accommodation up to "undue hardship" is needed.
• A BFOR (bona fide occupational requirement) must be rationally connected to the job.
• Also, a BFOR must have an honest belief that it is necessary and be impossible to accommodate without causing undue hardship.

Issues in Recruitment, Selection, & Hiring: Use of Employment Agencies

• BC's Section 13(2) prohibits discrimination by employment agencies.
  • Refusing to refer candidates based on a prohibited ground is prohibited.
• In Alberta, "any person" cannot advertise or circulate discriminatory application forms, per s 8(1).
• Agencies cannot accept or act on requests to hire based on prohibited grounds of discrimination.

Issues in Recruitment, Selection, & Hiring: Job Advertisements

• Job advertising methods and location affect equality.
• Alberta’s Section 8(1) and BC’s Section 11 ban job ads discouraging applicants based on prohibited grounds.
• Job ad wording should focus on necessary qualifications and skills for job performance.

Issues in Recruitment, Selection, & Hiring: Job Application Forms

• Job application forms must not discourage candidates.
• Application forms must not elicit information that directly or indirectly excludes indidivuals based on non-job related grounds
• An attestation clause at the end requiring applicant to attest that the facts are accurate must be included.

Conditional Offers of Employment

• No employment contract until the conditions are fulfilled by the candidate after a conditional offer.
• Employers can collect data in recruitment forbidden earlier by the Act.
• It should be requested only after a conditional offer:
  • Copy of driver’s license.
  • Work authorization.
  • Social insurance card.
  • Transcripts.
  • Medical information.

Issues in Recruitment, Selection, & Hiring: Pre-Employment Medical or Fitness Examinations

• Medical testing in any form has to be at the conditional offer stage.
• The testing has to be a BFOR (bona fide occupational requirement)
• The same test has to be given to every candidate
• Confidentiality of the test results has to be maintained by the employer

Issues in Recruitment, Selection, & Hiring: Pre-Employment Drug and Alcohol Testing

• Drug or alcohol dependence is a disability
• While testing in and of itself isn't banned, the best advice to avoid it.
• Pre-employment screening can't measure on-the-job abilities.
• If a result is positive, it triggers responsibility to determine it it's due to a disability, and accommodate it

Issues During the Course of Employment: Duty to Accommodate

• Accommodation in human rights law must be individualized, dignified, and inclusive.
• Accommodation is a shared, ongoing obligation between employer, employee, and union.

Issues During the Course of Employment: What is "Undue Hardship"?

• Undue hardship is not defined in legislation.
• It occurs when accommodation creates difficult conditions, high costs, or serious disturbances.
• Financial cost, employer size/resources, operational disruption, morale problems, and rights interference are factors.
• Weighing interchangeability of workforce/facilities and health/safety concerns is also required.

Issues During the Course of Employment: Fulfilling the Duty to Accommodate Disability

• Employers should gather medical information responsibly, consulting, and modifying requirements.
• Employers must assess undue hardship, implement accommodations, and document the accommodation process.
• Confidentiality must me maintained through out.
• Essex Police Services Board v Essex Police Association: Courts have litigated what constitutes employers duties around what is adequate accommodation.
• _Jodoin v City of Calgary:" Addresses employers duties around what is adequate search for accomodation.

Issues During the Course of Employment: Fulfilling the Duty to Accommodate Substance Abuse

• Substance abuse is considered a disability.
• Purely recreational drug/alcohol use is not a disability.
• Accommodation commonly involves offering rehabilitation programs or time off.
• Consistency is key for rehabilitation.
• Employers don't have to accept long absences unrelated to rehabilitation.
• "Last chance agreements" are also possible.

Issues During the Course of Employment: Fulfilling the Duty to Accommodate Religious Beliefs

• Religion or creed may need accommodation.
• Accommodations include changes to dress codes, religious days off, and work schedules.
• See cases like Central Alberta Dairy Pool and Roosma.
• Break policies are also key, as seen in Friesen v Fisher Bay Seafood, which addressed preaching at work.

Issues During the Course of Employment: Fulfilling the Duty to Accommodate Pregnancy and Family Status

• Pregnancy as a sex includes temporary relocation and modified duties.
• Flexible work schedules and break times are key.
• Assessing accommodation of family status can involve tests for discrimination and eldercare duties. Cases to consider:
  • Health Sciences Association of BC v Campbell River
  • Canada v Johnstone
  • Devaney v SRV Holdings

Issues During the Course of Employment: Fulfilling the Duty to Accommodate Age

• There is a social and legal shift away from age discrimination.
• Older workers need to work for social or financial betterment.
• Older workers make valuable payments through experience.
• Past cases used economic reasons to justify it.
• 2008 saw BC Code banning mandatory retirement. Cases to Reference
  • Association of Justices of Peace of Ontario v Ontario
  • Douglas/Kwantlen Faculty Association v Douglas College
  • Dickason v University of Alberta

Issues During the Course of Employment: On-the-Job Drug and Alcohol Testing

• Pre-employment testing is prohibited.
• On-the-job selective testing is allowed in specific situations, where there is reason for impairment, accident involvement, agreed rehab plan, or employees work for companies operating outside Canada.
• Universal random testing is okay with rampant drug use, and in dangerous (nuclear) zones.
• Post testing, consequences have to fit the scenario.

Issues During the Course of Employment: Harassment

• In AB and BC harassment is prohibited if associated with a protected ground
• The Act also bans any public display likely to expose people to contempt/hatred
• Verbal and physical abuse constitutes prohibited behaviors.
• Other behaviors include derogatory remarks, jokes, racist displays, unwelcome invitations, intimidation, and condescension.
• Avoid unwanted physical contact.

Issues During the Course of Employment: Types of Harassment

• A poisoned work environment comes from comments hurting the workplace.
• Sexual harassment is unwelcome behaviors (verbal or physical), usually repeated, based on sex.
• Sexual Solicitation is where someone requests sexual acts. With the threat of removal or promise of reward.

Issues During the Course of Employment: Harassment

• Harassment has occurred if a reasonable person finds the behavior inappropriate.
• The victim has to inform the harasser their actions are unwelcome.
• Commitment, policies, education, processes, investigation, documentation, and confidentiality are to to happen in harassment workplace.

Issues During the Course of Employment: Employer Liability for Human Rights Violations

• Vicarious liability: the employer is liable for the actions of its agents and employees.
• Direct liability: the employers actions are discriminatory.
• Employers can avoid liability with workplace harassment prevention, and quick action when informed.

Issues During the Course of Employment: Investigating Harassment Complaints

• Investigate in a timely manner
• Ensure the investigator is unbiased
• Give the accused a chance to respond
• Follow the employer's policies and procedures
• Interview witnesses separately
• Do not ask leading questions
• Interview third party witnesses
• Document the investigation
• Keep and open mind
• Consider the entire context