Discrimination & Human Rights

Understanding Discrimination & Human Rights Complaints

• Employers must maintain workplaces free from discrimination and harassment
• Discrimination protections exist for the entire employment relationship
• Protections extends to hiring, training, transfers, promotions, and compensation
• Protections also extend to performance evaluations, discipline, termination, and layoffs
• Alberta and British Columbia have their own Human Rights Acts and Codes

What is Discrimination?

• Discrimination does not need to be intentional to be considered discrimination
• The result of the policy or practice is what matters, not the intent behind it
• A legal test determines discrimination:
  • The complainant has a protected characteristic under the legislation
  • The complainant experienced an adverse impact regarding their employment
  • The protected characteristic was a factor in the adverse impact
• Systemic discrimination involves facially neutral policies with discriminatory effects

Overview of Legislation: Areas Covered

• Legislation covers publications and notices
• Legislation covers goods, property, services, and accommodation
• Legislation includes housing and facilities
• Legislation covers tenancies
• Legislation covers employment practices including equal pay and advertisements
• Employment practices account for 65% of complaints in BC and 85% in Alberta
• Legislation covers membership in trade unions and occupational associations

Overview of Legislation: Protected Grounds

• Protected grounds vary slightly between Alberta and British Columbia

Alberta Protected Grounds

• 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

BC Protected Grounds

• 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

• The Morrison v AdvoCare case involved a male registered care aide who was refused employment on two occasions
• The key question in this case was whether the refusal to hire was discrimination based on sex
• Tests for prima facie discrimination in hiring include:
  • The complainant was qualified for the job
  • The complainant was not hired
  • Someone less qualified but lacking the protected characteristic got the job OR the employer continued seeking applicants with similar qualifications

Overview of the Legislation: Equal Pay for Equal Work

• Alberta and BC require that employees of any sex be paid the same rate for the same or substantially similar work
• Alberta and BC employers may not reduce the pay of higher-paid employees to ensure equal pay
• Pay equity, which requires comparing totally different jobs for equal value, is not required in Alberta and BC
  • Pay equity is currently required only in Ontario and Quebec
• Employment Equity, which addresses underrepresentation of certain groups, is also not generally required
  • This is currently required in the federal sector

Overview of Legislation: Where Discrimination is Allowed

• Discrimination is allowed when based on a bona fide occupational requirement (BFOR)
• Discrimination is permitted when an alleged contravention of the Act is reasonable and justifiable
• Alberta has special exemptions on age and marital status for pension plans and insurance
• BC has special exemptions when the organization is not for profit and promotes the interests/welfare of an identifiable group

Overview of the Legislation: Making a Complaint

• In Alberta, complaints must be filed within 1 year of the incident
• In British Columbia, complaints must be filed within 6 months of the incident
• Applications are reviewed for completeness, jurisdiction, and initial merit
• Respondents receive a copy of the complaint and a time limit to respond
• If there is no response, the complaint proceeds and orders may be made against the respondent
• Settlement attempts are made, and investigations may occur in Alberta
• Cases are heard by a human rights tribunal

Overview of the Legislation: Remedies

• Remedies involve the cessation of the discriminatory policy or behaviour
• Refraining the discriminatory behavior in the future is a remedy
• Awarding the complainant opportunities or privileges that were lost is another remedy
• Compensation for lost wages, income, or expenses is a remedy
• Taking any other action the tribunal considers proper to restore the complainant's position

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

• Employers should ensure job descriptions are current
• Ensure job descriptions accurately reflect employer needs and expectations
• Ensure job descriptions identify essential requirements
• If an essential job requirement negatively affects a person on a prohibited ground, the employer must accommodate to the point of undue hardship

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

• For a standard to be a BFOR, it must be necessary despite being discriminatory
• BFOR standards must be rationally connected to the job's purpose
• BFOR standards must be adopted with the honest belief that it fulfills a legitimate business
• BFOR standards must be reasonably necessary, with no accommodation possible without undue hardship

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

• BC Section 13(2) prohibits discrimination by employment agencies
  • Specifically, this includes refusing to refer a candidate on a prohibited ground
• Alberta prohibits advertising or circulating discriminatory application forms, but does not expressly define employment agencies
• Agencies cannot accept requests or act on requests to hire people based on discriminatory preferences

Issues in Recruitment, Selection, & Hiring: Job Advertisements

• Job advertisement placement and content are important
• Section 8(1) of the Alberta Act and Section 11 of the BC Code prohibit job ads that discourage applicants based on prohibited grounds
• Job ad wording should focus on qualifications and skills required for job performance

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

• Job application forms should avoid discouraging candidates
• Job application forms should not elicit information that excludes individuals on non-job-related grounds
• An attestation clause at the end of the form requires applicants to attest to the accuracy of the facts stated

Conditional Offers of Employment

• No employment contract exists until conditions of the conditional offer are met
• Conditions allow employers to gather information otherwise forbidden earlier in recruitment
• Information to request only post-offer:
  • Driver's license copy
  • Work authorization from immigration
  • Social insurance card
  • Transcripts or professional credentials
  • Medical or health information

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

• Any form of medical testing must be left to the conditional offer stage
• Any form of medical testing must be a bona fide occupational requirement (BFOR)
• The same test must be performed on every candidate
• The employer must maintain confidentiality of test results

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

• Drug or alcohol dependence is a disability
• Testing itself is not prohibited
• The best advice is not to conduct these tests
• Pre-employment screening does not measure on-the-job impairment or predict job ability
• If testing is positive, it triggers the duty to determine disability and accommodate to the point of undue hardship

Issues During the Course of Employment: Duty to Accommodate

• Fundamental principles of accommodation in human rights law include:
  • Individualization
  • Dignity
  • Inclusivity
• Accommodation is a shared and ongoing obligation by:
  • Employer
  • Employee
  • Union

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

• Undue hardship is not defined in legislation
• Undue hardship occurs when accommodation creates onerous conditions, intolerable costs, or serious disruption
• Factors considered in undue hardship:
  • Financial cost
  • Size and resources of employer
  • Disruption of operations
  • Morale problems of other employees
  • Substantial interference with rights of other individuals or groups
  • Interchangeability of workforce and facilities
  • Health and safety concerns

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

• Employers should gather medical information (with consent) to determine functional abilities
• Employers should consult with the employee, supervisor, and union
• Employers should modify job requirements when possible; if not, assess other available jobs
• Assess undue hardship for proposed accommodations
• Implement accommodations
• Monitor accommodations frequently
• Document all facets of the accommodation process, including alternatives and reasons for rejection
• Maintain confidentiality

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

• Essex Police Services Board v Essex Police Association case addresses whether an employer must create a new job or place a worker in a currently occupied position
• Jodoin v City of Calgary case addresses how diligent an employer must be in searching for accommodation

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

• Substance abuse is a disability
• Purely recreational drug/alcohol use is not a disability
• Accommodation usually means offering rehabilitation or time off to attend a program
• Employers are not required to accept ongoing, lengthy absences unrelated to rehabilitation
• Be consistent and persistent
• Condoning is an issue
• Last chance agreements may happen

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

• Protections against discrimination regarding religion or creed
• Protections extends to dress codes
• Protections extends to religious days off
• Modification of work schedules
• Cases examples include Central Alberta Dairy Pool , Roosma and Friesen v Fisher Bay Seafood
• Friesen v Fisher Bay Seafood includes whether preaching during work hours a BFOR?

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

• Sex (pregnancy) is a protected ground
• Protections may require temporary relocation
• Protections may require modified duties
• Protections may require flexible work schedules and break times
• Family status is a protected ground
• Cases include Health Sciences Association of BC v Campbell River , and Canada v Johnstone
• Cases include does the duty to accommodate family status include eldercare such as Devaney v SRV Holdings

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

• Social and legal attitudes regarding age discrimination have shifted
• Older workers may need to work for social or financial reasons
• Older workers may make valuable contributions
• Previous cases, age discrimination justified economic reasons/workforce renewal
• Mandatory retirement is a form of age discrimination
• Cases include Douglas/Kwantlen Faculty Association v Douglas College, and Dickason v University of Alberta
• 2008 BC Code amended to prohibit mandatory retirement
• Cases exists where mandatory retirement does not meet Charter minimal impairment test

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

• Pre-employment testing is generally prohibited
• On-the-job selective testing may be carried out under reasonable cause/ suspicion of impairment
  • Incidents include workplace accident or incident
  • As part of an agreed rehabilitation or return-to-work plan
  • When an employee works for a trucking company in the United States that requires compliance with American law
• Universal random testing may also be carried out
  • If rampant drug/alcohol is evident
  • Where the workplace is dangerous
• Sanctions may not result in automatic termination

Issues During the Course of Employment: Harassment

• In Alberta and British Columbia, harassment is prohibited if associated with a protected ground
• The Act prohibits public displays that expose individuals to hatred/contempt
• Prohibited behaviors include:
  • Verbal/physical abuse
  • Threats, derogatory remarks, jokes, innuendo, or taunts about appearance/belief
  • Display of pornographic, racist, or offensive images
  • Practical jokes causing awkwardness/embarrassment
  • Unwelcome invitations/requests
  • Intimidation, leering, or objectionable gestures
  • Condescension or paternalism undermining self-confidence
  • Unwanted physical contact

Issues During the Course of Employment: Types of Harassment

• Poisoned work environment includes comments or actions creating a hostile/unwelcoming workplace
• Sexual harassment is unwelcome sex-based comments/actions
  • This normally involves a course of vexatious conduct
  • "Sexting" outside work hours may be sexual harassment
• Sexual solicitation is unwelcome advances/requests by someone in authority
  • May involve a threat of reprisal or promise of reward

Issues During the Course of Employment: Harassment

• If a "reasonable person" would consider the conduct inappropriate then is classified as harassment
• If individual experiencing harassment is expected to inform harasser behavior is unwelcome
• Promoting a harassment-free workplace is a legal responsibility for Employers.
  • Employers requires - commitment
  • Employers requires - Well-known policies and procedures
  • Employers requires - Education and awareness
  • Employers requires - Processes for dealing with complaints
  • Employers requires - Prompt investigation by an impartial and knowledgeable person
  • Employers requires - Documentation
  • Employers requires - Confidentiality

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

• Vicarious liability applies for discriminatory actions of agents/employees in the workplace
• Direct liability applies for discriminatory actions of management
• Employers are liable for workplace harassment by managers
• Employer can avoid liability for non managerial harassment if:
  • it was unaware of the harassment,
  • it was diligent in preventing the harassment, and
  • it responded appropriately upon awareness

Issues During the Course of Employment: Investigating Harassment Complaints

• Timely investigate harassment complaints
• Guarantee the investigator is unbiased
• Give the accused the right to respond
• Abide by employers policies and processes
• Witnesses needs to be interviewed separately
• Do not ask leading questions
• Interview third-party witnesses
• Gather documentation from the investigation
• Consistently keep an open mind during investigation
• Consider the entire context