Discrimination & Human Rights: Understanding the Basics

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Questions and Answers

What principle underlies the requirement for employers to maintain workplaces free from discrimination and harassment?

  • Adhering to legal and ethical standards ensuring fair treatment. (correct)
  • Promoting diversity to enhance innovation.
  • Increasing productivity by avoiding workplace conflicts.
  • Reducing legal liabilities associated with employee lawsuits.

Discrimination in employment is considered to exist:

  • Only when the employee is directly and overtly told they are being discriminated against.
  • When a policy or practice has a discriminatory effect, regardless of intent. (correct)
  • When the employer is consciously aware of their discriminatory actions.
  • Only when the employer intentionally sets out to discriminate.

What are the three components of the legal test for discrimination?

  • Systemic discrimination, intentional discrimination, and unintentional discrimination.
  • Direct discrimination, indirect discrimination, and reverse discrimination.
  • Intent to discriminate, adverse impact, and protected characteristic.
  • Protected characteristic, adverse impact, and causal factor. (correct)

How is systemic discrimination best described?

<p>Policies and practices that appear neutral but have discriminatory effects. (C)</p> Signup and view all the answers

Employment practices, equal pay, and advertisements fall under what area covered by human rights legislation?

<p>Employment practices. (D)</p> Signup and view all the answers

In the context of human rights legislation, what does 'protected grounds' refer to?

<p>Characteristics that cannot be used as a basis for discrimination. (D)</p> Signup and view all the answers

What does prima facie discrimination in hiring refer to?

<p>Presenting initial evidence that suggests discrimination occurred during the hiring process. (D)</p> Signup and view all the answers

In Alberta and British Columbia, which of the following principles applies to equal pay for equal work?

<p>Employees of any sex must be paid the same rate for work that is the same or substantially similar. (D)</p> Signup and view all the answers

When is discrimination allowed under human rights legislation?

<p>When it is based on a bona fide occupational requirement. (D)</p> Signup and view all the answers

What is the typical time limit for filing a human rights complaint in Alberta and British Columbia?

<p>1 year in Alberta, 6 months in British Columbia. (D)</p> Signup and view all the answers

What is the primary goal of remedies in human rights cases?

<p>To put the complainant in the position they would have been in but for the discrimination. (A)</p> Signup and view all the answers

What should employers ensure when recruiting, according to the guidance on essential job requirements?

<p>The job description accurately reflects the employer's needs and expectations and identifies the essential requirements of the job. (A)</p> Signup and view all the answers

Under what condition can a workplace policy, practice, or requirement be considered a bona fide occupational requirement (BFOR)?

<p>If it is rationally connected to the job, adopted in an honest belief it's necessary, and reasonably necessary to accomplish its purpose without undue hardship. (A)</p> Signup and view all the answers

What specific actions are prohibited for employment agencies in British Columbia under Section 13(2)?

<p>Refusing to refer a candidate based on a prohibited ground. (C)</p> Signup and view all the answers

According to Section 8(1) of the Alberta Act and Section 11 of the BC Code, what is prohibited regarding job advertisements?

<p>Advertisements that directly or indirectly discourage people from applying based on a prohibited ground. (D)</p> Signup and view all the answers

What is the primary goal of an attestation clause in a job application form?

<p>To require applicants to attest that the facts stated on the form are accurate. (C)</p> Signup and view all the answers

When can an employer request information, that would otherwise be forbidden by legislation, from a candidate?

<p>Only after a conditional offer of employment has been made. (D)</p> Signup and view all the answers

Under what circumstances is it acceptable to conduct pre-employment medical or fitness examinations?

<p>After a conditional offer of employment and if it is a bona fide occupational requirement (BFOR). (A)</p> Signup and view all the answers

What is the best advice regarding pre-employment drug and alcohol testing?

<p>The best advice is not to conduct the tests. (C)</p> Signup and view all the answers

What are the fundamental principles of accommodation in the context of human rights law?

<p>Individualization, dignity, and inclusivity. (D)</p> Signup and view all the answers

In workplace accommodation, what does 'undue hardship' refer to?

<p>The point beyond which accommodation creates onerous conditions, intolerable costs, or serious disruption. (B)</p> Signup and view all the answers

In fulfilling the duty to accommodate a disability, what steps should an employer take?

<p>Consult with the employee, supervisor, and union; gather medical information; modify job requirements if possible; and assess undue hardship. (B)</p> Signup and view all the answers

According to the cases mentioned, what are some considerations for the duty to accommodate?

<p>How diligent an employer must be when searching for accommodation. (A)</p> Signup and view all the answers

When accommodating substance abuse in the workplace, what is an employer not required to do?

<p>Accept ongoing, lengthy absences unrelated to the rehabilitation. (B)</p> Signup and view all the answers

In fulfilling the duty to accommodate religious beliefs, which of the following is a relevant consideration?

<p>Modification of work schedules to accommodate religious days off. (D)</p> Signup and view all the answers

What is a key consideration in fulfilling the duty to accommodate pregnancy?

<p>Modified duties and flexible work schedules. (B)</p> Signup and view all the answers

What is an important factor to consider when fulfilling the duty to accommodate age?

<p>Recognizing that older workers may need to work for social or financial reasons and make valuable contributions. (B)</p> Signup and view all the answers

Under what specific conditions may on-the-job selective drug and alcohol testing be carried out?

<p>Where there is reasonable suspicion of impairment. (B)</p> Signup and view all the answers

What is a factor to consider for universal random drug and alcohol testing?

<p>If there is evidence of reasonable cause or necessity (rampant drug/alcohol use). (B)</p> Signup and view all the answers

What would be considered harassment in Alberta and BC?

<p>Harassment associated with a protected ground (B)</p> Signup and view all the answers

What is a key characteristic of a 'poisoned work environment'?

<p>Comments or actions not directed at an individual, but have made the workplace hostile or unwelcoming to them. (B)</p> Signup and view all the answers

What distinguishes sexual solicitation from other forms of sexual harassment?

<p>Someone in a position of authority makes unwelcome advances or requests for sexual favours. (B)</p> Signup and view all the answers

What is the legal standard for determining if harassment has occurred?

<p>Whether a reasonable person would think the conduct or comment was inappropriate. (A)</p> Signup and view all the answers

What is the onus on the person experiencing harassment?

<p>To inform the harasser that the behaviour is unwelcome. (D)</p> Signup and view all the answers

What is a key responsibility of employers in promoting a harassment-free workplace?

<p>Promoting a harassment-free workplace with well-known policies and procedures. (C)</p> Signup and view all the answers

Under vicarious liability, when is an employer responsible for discriminatory actions?

<p>For discriminatory actions of its agents and employees in the workplace. (B)</p> Signup and view all the answers

When can an employer avoid liability for non-managerial harassment?

<p>If the employer was unaware that harassment was occurring, and was diligent in preventing the harassment, and it responded appropriately once aware of the harassment. (B)</p> Signup and view all the answers

What should take place during the investigation of harassment complaints?

<p>All of the above. (D)</p> Signup and view all the answers

How does the legal principle focusing on the 'result' of discrimination challenge traditional understandings of discriminatory practices?

<p>It shifts the focus from the intentions behind an action to the discriminatory impact it has on individuals or groups. (A)</p> Signup and view all the answers

How do the protected grounds for discrimination in Alberta and British Columbia reflect differing societal priorities?

<p>BC includes 'criminal or summary conviction unrelated to employment' to reduce stigma, demonstrating a rehabilitation-focused approach, while Alberta does not. (C)</p> Signup and view all the answers

In the absence of explicit 'equal pay for equal work' provisions, how could an organization in Alberta or British Columbia proactively ensure equitable compensation practices?

<p>By establishing a transparent salary range system based on objective criteria and regularly audited for gender and other protected ground disparities. (B)</p> Signup and view all the answers

How does the legal requirement to accommodate an employee's needs up to the point of 'undue hardship' reflect a balance between employer rights and employee protection?

<p>It forces a negotiation where employers must implement accommodations unless they cause significant disruption or unsustainable costs to the business. (D)</p> Signup and view all the answers

What potential conflict exists between an employer's duty to accommodate an employee with a substance abuse disorder and the employer's responsibility to maintain a safe workplace?

<p>Employers should balance accommodation with workplace safety by offering rehabilitation while enforcing clear performance and safety standards. (B)</p> Signup and view all the answers

In what way is adhering to the fundamental principles of accommodation—individualization, dignity, and inclusion—likely to surpass the basic legal requirements for accommodation?

<p>Adherence ensures that accommodations are not just legally sufficient but also respectful, promoting a more equitable and supportive work environment. (C)</p> Signup and view all the answers

How might universal random drug and alcohol testing in a workplace be scrutinized under human rights legislation, and what justifications could an employer offer to defend such a practice?

<p>An employer must demonstrate a bona fide occupational requirement, and provide evidence of significant safety risks or rampant substance abuse to validate testing. (B)</p> Signup and view all the answers

How does the concept of a 'poisoned work environment' extend the understanding of harassment beyond overt actions or comments directed at specific individuals?

<p>It addresses situations where widespread offensive or intimidating behavior creates a hostile or uncomfortable atmosphere for one or more individuals. (A)</p> Signup and view all the answers

Why is the employer's response to harassment complaints assessed based on principles of reasonableness, and what consequences does this have for employers?

<p>It means tribunals and courts have the authority to decide whether an employer's actions were adequate, depending on the circumstances. (A)</p> Signup and view all the answers

Under what circumstances might an employer successfully defend against a claim of vicarious liability in a harassment case involving non-managerial employees?

<p>The employer can demonstrate they took reasonable steps to prevent the harassment and addressed it appropriately once they became aware. (B)</p> Signup and view all the answers

How could implementing a mandatory 'attestation clause' in job applications potentially conflict with human rights legislation, and what steps should employers take to mitigate this risk?

<p>Conflicts arise if attestation clauses are too broad or ask for information not directly related to job requirements; employers should ensure relevance and necessity. (A)</p> Signup and view all the answers

How might an employer strike a balance between maintaining a fair hiring process and gathering necessary information about a candidate's abilities, particularly when using conditional job offers?

<p>By focusing early inquiries strictly on job-related qualifications and deferring sensitive inquiries until a conditional offer has been made. (C)</p> Signup and view all the answers

What ethical considerations should guide an employer's decision to conduct pre-employment medical or fitness examinations, even when legally permissible under a 'bona fide occupational requirement' (BFOR)?

<p>The employer must only use examinations that are scientifically validated, uniformly applied, and directly related to essential job functions. (A)</p> Signup and view all the answers

How does the legal perspective on pre-employment drug and alcohol testing, particularly the advice against conducting such tests, challenge traditional assumptions about workplace safety and productivity?

<p>It shifts the responsibility for ensuring workplace safety from pre-emptive measures to ongoing monitoring of employee performance. (D)</p> Signup and view all the answers

Consider a scenario where an employee's religious beliefs require them to wear specific attire that conflicts with a company's uniform policy. How should an employer navigate this situation to fulfill their duty to accommodate?

<p>The employer should engage in a dialogue with the employee to explore possible solutions that respect the employee’s beliefs while minimizing disruption to the workplace. (B)</p> Signup and view all the answers

To what extent should an employer be expected to alter job duties or create new roles to accommodate an employee's disability, especially when considering 'undue hardship?'

<p>Employers should consider restructuring job duties or creating new roles unless it leads to significant operational disruptions or unsustainable costs. (D)</p> Signup and view all the answers

What steps should an employer take to ensure the confidentiality of information gathered during the accommodation process, and why is this crucial for maintaining a fair and legally sound workplace?

<p>The employer must limit access to sensitive information to essential personnel only, and ensure it is stored securely to protect employee privacy. (C)</p> Signup and view all the answers

How does the ruling in Essex Police Services Board v Essex Police Association redefine the scope of an employer's duty to accommodate an employee with a disability?

<p>It limits it, stating employers are never required to create a new job based on reassigned duties to satisfy its duty to accommodate. (A)</p> Signup and view all the answers

What are the key considerations for an employer when navigating accommodation requests related to pregnancy, ensuring compliance with human rights legislation while also addressing the practical needs of the workplace?

<p>Employers and employees should converse on what an appropriate time to modify a schedule, and accommodations of tasks should be explored. (C)</p> Signup and view all the answers

What proactive steps can employers take to foster a respectful workplace culture that mitigates the risk of harassment, even in the absence of specific complaints or incidents?

<p>Promote ongoing education and awareness programs. (D)</p> Signup and view all the answers

If an employer is found liable for harassment committed by a manager, what factors would a human rights tribunal likely consider when determining the appropriate remedies or penalties?

<p>The nature and degree of harm suffered by the victim, the nature of the harassment. (B)</p> Signup and view all the answers

What are the critical elements of an effective harassment investigation process, and how can employers ensure impartiality and thoroughness throughout the investigation?

<p>Employers must ensure the investigator involved has no relationship to either party. (B)</p> Signup and view all the answers

What proactive measures can employers take during recruitment to mitigate potential discrimination and harassment issues?

<p>Develop diverse interview panels, and ask for the direct qualification to perform job tasks. (A)</p> Signup and view all the answers

How should employment agencies ensure they avoid discriminatory practices, and how does the legislation in British Columbia specifically address this?

<p>Avoid making referrals based on candidate's protected grounds as BC specifically disallows it. (D)</p> Signup and view all the answers

Given that the wording of a job advertisement is critical to avoid discouraging applicants based on prohibited grounds, how can employers ensure their ads are both accurate and inclusive?

<p>Focus on requirements to perform specific roles or skills. (A)</p> Signup and view all the answers

What strategies can employers employ to ensure that job application forms comply with human rights legislation and do not inadvertently discourage applications from candidates belonging to protected groups?

<p>Keep personal questions directly relatable to professional history. (D)</p> Signup and view all the answers

The Alberta Human Rights Act and the BC Human Rights Code address employment practices and advertisements; therefore, how can employers ensure they are equitable?

<p>Ads should be geared toward required qualifications for job performance. (A)</p> Signup and view all the answers

Discrimination cases often involve assessing whether a workplace policy has discriminatory effects. How can employers proactively evaluate their policies to ensure they do not inadvertently discriminate against employees?

<p>By consulting diverse workforce regarding policies and procedures, making modifications to ensure it impacts no one adversely. (A)</p> Signup and view all the answers

How does the legal test for prima facie discrimination hiring reflect differing societal priorities?

<p>The complainant was not hired, and the employer continued to seek applicants with the complainant's qualifications. (C)</p> Signup and view all the answers

Consider an employee who must take time off to attend a program which facilitates ending their substance abuse habits; therefore, what legal obligation does their employer have under human rights legislation?

<p>The employer must allow time off to find attend appropriate program, and make reasonable accommodations for their recovery. (C)</p> Signup and view all the answers

What remedies can a human rights tribunal order for a complainant, and why are these remedies designed?

<p>The goal is to put the complainant in the position they would have been had the discrimination not occurred. (D)</p> Signup and view all the answers

What must an employer do to ensure they are following human rights when implementing an essential requirement of a job which negatively affects a person on a prevented ground?

<p>An employer must attempt to accommodate said person to the point of ‘undue hardship’. (D)</p> Signup and view all the answers

To be considered a BFOR, what fundamental criteria must the workplace policy meet?

<p>Be impossible to fully accommodate without creating undue hardship. (A)</p> Signup and view all the answers

If an employer discovers workplace harassment involving non-managerial employees, what appropriate response is required to avoid further liability?

<p>Action to remedy is required after the employer becomes aware that the incident has occurred. (A)</p> Signup and view all the answers

According to the provided materials, what factors are considered regarding ‘undue hardship’?

<p>Employer costs, facility size and resources, impact on workplace morale and safety. (D)</p> Signup and view all the answers

Flashcards

Workplace Discrimination

Employers must maintain workplaces free from discrimination and harassment throughout the entire employment relationship.

Intent vs. Impact

Discrimination is judged by its impact, not necessarily by intent. If the result is discriminatory, it is considered discrimination

Systemic Discrimination

A set of practices or policies that appear neutral, but have a discriminatory effect on certain groups.

Areas covered by Legislation

Includes publications, goods, services, housing, employment practices, union membership and occupational associations.

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Alberta's Protected Grounds

Alberta's protected grounds include race, religious beliefs, colour, gender, sexual orientation, physical and mental disability, age, ancestry, place of origin, marital status, family status, gender identity, gender expression, and source of income.

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BC's Protected Grounds

BC's protected grounds include race, religion, colour, sex, sexual orientation, physical and mental disability, age, ancestry, place of origin, marital status, family status, political belief, and criminal/summary conviction unrelated to employment.

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Prima Facie Discrimination in Hiring

To meet the qualifications for a job and be denied the opportunity.

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Equal Pay in AB & BC

Work of equal value need to be offered the same pay regardless of sex.

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Allowed Discrimination

Refusal, limitation, specification, or preference based on a bona fide occupational requirement (BFOR).

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Time Limit to File a Complaint

File within the time limit. (Alberta: 1 year since incident; BC: 6 months since incident)

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Remedies for Discrimination

Cease discrimination, prevent reoccurrence, offer lost opportunities, compensation, and any other actions deemed suitable by the tribunal.

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Issues in Recruitment

The essential requirements of any job.

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Job Description

Current, accurately reflects employer needs, identifies essential requirements.

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Bona Fide Occupational Requirement (BFOR)

A standard necessary for a job, even if discriminatory.

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Requirements for a BFOR

It must be connected to the job, honestly believed, and not create undue hardship.

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BC Section 13(2)

Prohibits discrimination by employment agencies, specifically refusing to refer candidates based on prohibited grounds.

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Alberta Act Section 8(1)

Section 8(1) prohibits ads that discourage people from applying based on a prohibited ground; ads should focus on necessary qualifications.

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Job Application Forms

Should avoid discouraging candidates and eliciting non-job-related information that could exclude individuals.

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Conditional Job Offer

Conditions allow the employer to gather information forbidden earlier in recruitment.

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Confidential information.

Should only be requested after a conditional offer

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Medical Testing

Must be left to the conditional offer stage and be a bona fide occupational requirement (BFOR).

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Drug/Alcohol Testing

Drug or alcohol dependence is a disability, but testing is not recommended.

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Fundamentals of Accommodation

Individualization, dignity, and inclusivity.

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Undue Hardship

Occurs when accommodation creates onerous conditions, intolerable costs, or serious disruption.

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The Accommodation Process

Gather information, consult, modify job, assess options, implement, monitor, document, and maintain confidentiality.

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An Employer..

Is not required to accept ongoing, lengthy absences unrelated to the rehabilitation.

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Duty to accommodate with religious beliefs

Religion or creed, dress codes, religious days off, and break policies.

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Duty to accommodate with religious beliefs

Sex (pregnancy) and Family status

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Discrimination of Age

Social and legal shift in attitude about age discrimination

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On-the-Job Testing

Limited to reasonable suspicion, workplace accidents, or agreed rehab programs.

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Harassment

Prohibited if associated with a protected ground; includes acts causing hatred or contempt.

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Poisoned Work Environment

Occurs when comments or actions create a hostile or unwelcoming work environment.

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Sexual Harassment/Solicitation

Sexual harassment involves unwelcome advances based on sex; sexual solicitation includes requests for sexual favors from authority figures.

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Legal Standard of Harassment

If a reasonable person would find the conduct inappropriate.

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Duties to promote a Harassment Policy

Commitment, policies, education, complaint processes, impartial investigation, documentation, confidentiality.

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Employer Liability

Vicarious liability for agent actions; direct liability for management actions.

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Harassment Complaint Investigation

Investigate promptly, ensure unbiased investigator, give accused a chance to respond, document, and keep an open mind.

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Pay equity

Requires employers to compare different jobs to determine if they are equal in value.

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Employment Equity

Requires employers to address underrepresentation of certain groups through planned hiring.

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Accommodation

Essential job duties must be accommodated unless it causes undue hardship.

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Agencies & Discrimination

Agencies cannot accept requests to hire based on prohibited grounds of discrimination.

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Avoid in application forms

Information that discourages candidates or elicits non-job-related details.

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When to request info?

Information requested only after a conditional offer has been accepted.

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Attestation Clause

An attestation clause is needed in job application to attest the facts on the job application are accurate.

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Fitness Examination (BFOR)

Physical requirements for roles must be essential and applied equally.

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Avoid Liability

Employer is diligence in preventing harassment, and responds appropriately.

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Universal testing

If there is evidence of reasonable cause or necessity can testing occur.

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Study Notes

Understanding Discrimination & Human Rights Complaints

  • Employers must maintain workplaces free from discrimination and harassment.
  • Protections exist for the entire employment relationship, including hiring, training, transfers, promotions, compensation, performance evaluations, discipline, termination, and layoffs.
  • The Alberta Human Rights Act and the BC Human Rights Code offer legal protections.

What is Discrimination?

  • Discrimination does not need to be intentional; it is the result that matters.
  • The legal test for discrimination requires that the complainant has a protected characteristic, experienced an adverse impact due to their employment, and the protected characteristic was a factor in the adverse impact.
  • Systemic discrimination involves policies and practices that appear neutral but have discriminatory effects.

Overview of Legislation: Areas Covered

  • Legislation covers publications, notices, goods, property, services, accommodation, and tenancies.
  • Legislation covers employment practices including equal pay and advertisements.
  • In BC, 65% of complaints, and in Alberta, 85% of complaints concern employment.
  • Legislation covers membership in trade unions and occupational associations.

Overview of Legislation: Protected Grounds

  • Alberta's protected grounds include race, religious beliefs, colour, gender, sexual orientation, physical disability, mental disability, age, ancestry, place of origin, marital status, family status, gender identity, gender expression, and source of income.
  • BC's protected grounds include race, religion, colour, sex, sexual orientation, physical disability, mental disability, age, ancestry, place of origin, marital status, family status, political belief, and criminal or summary conviction unrelated to employment.

Discrimination in Hiring: Morrison v AdvoCare

  • A male registered care aide was refused employment on two occasions.
  • Issue in the case was if the refusal to hire was discrimination based on sex?
  • The test for prima facie discrimination in hiring requires that the complainant was qualified but not hired, and either someone less qualified but lacking the protected characteristic was hired, or the employer continued seeking applicants with the complainant’s 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 substantially similar work.
  • Cannot reduce a higher-paid employee's wage to achieve equal pay.
  • Pay equity, comparing different jobs to determine equal value, is not required in Alberta and BC, but is currently only required in Ontario and Quebec.
  • Employment equity, addressing underrepresentation of certain groups through planned hiring, is only required in the federal sector.

Overview of the Legislation: Where Discrimination is Allowed

  • Discrimination may be allowed based on a bona fide occupational requirement (BFOR).
  • Discrimination may be allowed if contravention of the Act is reasonable and justifiable.
  • Alberta has special exemptions based on age and marital status for pension plans and insurance.
  • BC has special exemptions for organizational membership under certain conditions: the organization is not-for-profit and it aims to promote the welfare of an identifiable group

Overview of the Legislation: Making a Complaint

  • Complaints must be filed within a time limit: 1 year in Alberta, 6 months in BC from the incident.
  • Applications are reviewed for completeness, jurisdiction, and initial merit.
  • The respondent receives a copy of the complaint and a time limit to respond.
  • A complaint proceeds to review and orders may be made against the respondent if there is no response.
  • Settlement attempts are made, with investigations potentially occurring in Alberta.
  • Cases are heard by a human rights tribunal.

Overview of the Legislation: Remedies

  • Remedies to cease discriminatory policy or behaviour.
  • Remedies to refrain from engaging in the same acts in the future.
  • Remedies to award the complainant opportunities or privileges loss.
  • Remedies to compensate for lost wages, income, or expenses.
  • Other actions can be taken to put the complainant in the position he or she would have been in without the discrimination.

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

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

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

  • A BFOR (a standard necessary despite being discriminatory) must be rationally connected to the job, be adopted in honest belief that is necessary to satisfy legitimate business purpose, be reasonably necessary, and impossible to accommodate the individual without undue hardship.

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

  • BC Section 13(2) expressly prohibits discrimination by employment agencies.
  • Specifically prohibits refusing to refer a candidate based on a prohibited ground.
  • Alberta s 8(1) prohibits "any person" from advertising/circulating discriminatory application forms, even though employment agencies are not specifically defined in the Act.
  • Agencies cannot accept or act on requests to hire based on preferences related to prohibited grounds of discrimination.

Issues in Recruitment, Selection, & Hiring: Job Advertisements

  • The where and how a job is advertised is important.
  • Section 8(1) of Alberta Act and Section 11 of BC Code prohibit job ads that discourage people from applying based on a prohibited ground.
  • Job ad wording should focus on qualifications and skills required for job performance.

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

  • Application forms should avoid discouraging candidates and avoid eliciting info that excludes individuals on non-job grounds.
  • An attestation clause requires applicants to attest to the accuracy of facts stated on the form.

Conditional Offers of Employment

  • There is no contract of employment untill a conditional offer made by an employer when those conditions are fulfilled by the candidate
  • Conditions allow the employer to gather candidate information that would have been forbidden earlier, for example:
    • Copy of driver's license
    • Work authorization from immigration
    • Social insurance card
    • Transcript or copy of professional credentials
    • Requests for medical or health information

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

  • Any form of medical testing:
    • Must be left to conditional offer stage
    • Must be a bona fide occupational requirement (BFOR)
    • The employer must perform the same test 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 is not prohibited, but it is best not to conduct tests
  • Pre-employment screening does not measure on-the-job impairment/ability to do the job.
  • Positive tests trigger responsibility to determine if it is due to a disability and requirement to accommodate to the point of undue hardship.

Issues During the Course of Employment: Duty to Accommodate

  • Fundamental principles of accommodation:
    • Individualization
    • Dignity
    • Inclusivity
  • Accommodation is a shared and ongoing obligation of the employer, employee, and union.

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

  • Undue hardship is not defined in the legislation.
  • Undue hardship occurs when accommodation creates onerous conditions, intolerable costs, or serious disruption.
  • Factors to consider:
    • 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

  • Gather medical information to determine functional abilities.
  • Consult with the employee, supervisor, and union.
  • Modify current job requirements or assess other available jobs.
  • Assess undue hardship of proposed accommodations.
  • Implement.
  • Monitor frequently.
  • Document all facets of the process, including:
    • Alternatives considered
    • Reasons alternatives were not accepted
  • Maintain confidentiality.

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

  • Key Court cases:
    • Essex Police Services Board v Essex Police Association - whether an employer requires creating a new job based on the reassigned duties of other jobs to satisfy.
    • Jodoin v City of Calgary - on how diligent an employer must be when searching for accommodation?

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

  • Substance abuse is a disability, but recreational drugs/alcohol is not.
  • Accommodation is offering rehab/time off to attend a program.
  • Employers are not required to accept unrelated absences and condoning is not accepted.
  • Last chance agreements are required.

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

  • Includes religion, creed and dress codes.
  • Includes religious days off, modifications of work schedules, Central Alberta Diary Pool, and Rooma.
  • Includes Friesen v Fisher Bay Seafood regarding an employee and the belif that they are commanded to preach during work hours.

Issues During the Course of Employment: Fulfilling the accomodation of Pregancy and Family Status

  • Includes sex (pregnancy), temporary relocation and modified duties
  • Flexible work schedules and break times are permitted and family status is also accomodated
  • Key cases are: a Health Sciences Association of BC v Campbell River case; the Canada v Johnstone case, the Devaney v SRV Holdings case

Issues During the Course of Employment: Accommodating Age

  • A social and legal shift in attitude has occured about age discrimination
  • Older workers may need to work for social reasons, older workers makes valuable contributions
  • Previous cases justified age discrimination and justified economic reasons
  • Mandatory reitrement is a form of age discrimination, for example Douglas faculty case, and Dickanson University case
  • 2008 BC code ameneded to include the Justice association case, and this amedment prohibits mandatory retirement

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

  • Pre-employment testing is prohibited
  • On-the-job selective testing may be carried out:
    • When there is a reasonable suspicion of impairment
    • When an employee is involved in a workplace accident or incident
    • As part of an agreed rehabilitation plan, or a return to work plan
    • When an employee works for a US trucking compnay where this testing is required
  • Universal random testing may be carried out when evidence suggests a reasonable causue or necessity
  • Where the tesr results are positive, tailor santcions to the cirumstances (no termaination)

Issues During the Course of Employment: Harassment

  • Harassment is prohibited in AB and BC if associated with a protective ground of discrimmination
  • Certain behaviours are also prohibitted in public settings and could lead to hatred with intent, for example verbal, threats, racist and pornographic imagery, physical contact etc.

Issues During the Course of Employment: Types of Harassment

  • Poisoned work environment: comments or actions directed at individual that make workplace hostile or unwelcoming
  • Sexual harassment: Comments or actions based on sex are unwelcome & normally requires course of vexatitous conduct rather than single instance
    • "Sexting” outside of work hours can be considered sexual harassment
  • Sexual Solicitation: Threats of reprisal or sexual favors or someone exploits their position of authority

Issues During the Course of Employment: Harassment

  • The legal standard is that if a reasonable person thinks the conduct or comment was inappropriate
  • There is an onus on the person experiencing harassment to report
  • Workplace must be legally responsible for promoting a harassment-free workplace through various means, such as commitments for well-known procedures, clear communication etc

Issues During the Course of Employment: Employer liability for human rights violations

  • Includes Vicarious liability, where there are dicriminatory actions from agents
  • Including direct liabilities, whre there are dicriminatory actions from management
  • Employers are liable for the management if harassament occurs
  • And employers are not liable if they where not aware, diligent and they responded appropriately.

Investigating Harassment Complaints

  • Investigate in a timely manner
  • Ensure unbiased
  • Give a chance for accused to respond
  • Follow procedures
  • Interview witnesses separately
  • Do not ask leading questions
  • Third Party witnesses should still be interviewed
  • Document the investigation process
  • Keep an open mind and stay unbiased
  • consider the enture context of whats hapening

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