ELW4-Ch7 Human Rights Issues PDF

CHAPTER 7 Human Rights Issues  2 Understanding Discrimination & Human Rights Complaints Employers are required to maintain workplaces free from discrimination and harassment Exists for the entire life of the employment...

CHAPTER 7 Human Rights Issues  2 Understanding Discrimination & Human Rights Complaints Employers are required to maintain workplaces free from discrimination and harassment Exists for the entire life of the employment relationship Hiring—Training—Transfers—Promotions—Compensation Performance evaluations—Discipline—Termination—Layoffs Alberta Human Rights Act BC Human Rights Code Copyright © 2020 Emond Montgomery Publications. All rights reserved.  3 What is Discrimination? Discrimination need not be intentional It is the result that counts, not the intent Legal test 1. The complainant has a characteristic protected by the legislation 2. The complainant experienced an adverse impact with respect to their employment 3. The protected characteristic was a factor in the adverse impact Systemic discrimination A web of policies and practices that are neutral on their face, but have discriminatory effects. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  4 Overview of the Legislation: Areas Covered Publications and notices Goods or property, services, accommodation (housing and facilities) Tenancies Employment practices including equal pay and advertisements 65% of complaints in BC and 85% of complaints in AB are about employment Membership in trade unions and occupational associations Copyright © 2020 Emond Montgomery Publications. All rights reserved.  5 Overview of the Legislation: Protected Grounds Alberta BC 1. Race 1. Race 2. Religious beliefs 2. Religion 3. Colour 3. Colour 4. Gender 4. Sex 5. Sexual orientation 5. Sexual orientation 6. Physical disability 6. Physical disability 7. Mental disability 7. Mental disability 8. Age 8. Age 9. Ancestry 9. Ancestry 10. Place of origin 10. Place of origin 11. Marital status 11. Marital status 12. Family status 12. Family status 13. Gender identity 13. Political belief 14. Gender expression 14. Criminal or summary conviction 15. Source of income unrelated to employment Copyright © 2020 Emond Montgomery Publications. All rights reserved.  6 Discrimination in Hiring Morrison v AdvoCare A male registered care aide was refused employment on two occasions Was the refusal to hire discrimination based on sex? Test for prima facie discrimination in hiring: 1. The complainant was qualified for the job 2. The complainant was not hired, and either: a) someone no better qualified but lacking the distinguishing protected characteristic obtained the position, or b) the employer continued the seek applicants with the complainant’s qualifications. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  7 Overview of the Legislation: Equal Pay for Equal Work What is required in Alberta and BC? Employees of any sex must be paid the same rate for work that is the same or substantially similar May not reduce the pay of the higher-paid employee to ensure equal pay for equal work What is not required in Alberta and BC? Pay equity—requires employers to compare totally different jobs to determine whether or not they are equal in value Currently required only in Ontario and Quebec Employment Equity—legislation that requires employers to address underrepresentation of certain groups of people (usually visible minorities) through planned hiring Currently required in the federal sector Copyright © 2020 Emond Montgomery Publications. All rights reserved.  8 Overview of the Legislation: Where Discrimination is Allowed When the “refusal, limitation, specification or preference” is based on a bona fide occupational requirement (BFOR) When an alleged contravention of the Act is “reasonable and justifiable in the circumstances” AB—special exemptions on the grounds of age and marital status for pension plans and insurance. BC—special exemptions for organizational membership where the organization is not for profit and has the aim of promoting the interests and welfare of an identifiable group Copyright © 2020 Emond Montgomery Publications. All rights reserved.  9 Overview of the Legislation: Making a Complaint 1. File within the time limit (AB: 1 year since incident; BC: 6 months since incident) 2. Application is reviewed for completeness, jurisdiction, and initial merit 3. Respondents sent a copy of the complaint and given a time limit to respond to the allegations If no response, complaint proceeds to review and orders may be made against the respondent 4. Settlement attempts (investigations may occur in AB) 5. Case is heard by a human rights tribunal Copyright © 2020 Emond Montgomery Publications. All rights reserved.  10 Overview of the Legislation: Remedies Cease the discriminatory policy or behaviour Refrain from engaging in the same acts in the future Award the complainant opportunities or privileges that were lost as a result of the discrimination Compensate the complainant for lost wages, income, or expenses Take any other action the tribunal considers proper to put the complainant in the position he or she would have been in but for the discrimination Copyright © 2020 Emond Montgomery Publications. All rights reserved.  11 Issues in Recruitment, Selection, & Hiring: Essential Requirements of the Job An employer who is recruiting should ensure a job description is: Current Accurately reflects the employer’s needs and expectations Identifies the essential requirements of the job If an essential requirement of the job negatively affects a person on a prohibited ground, the employer must accommodate to the point of “undue hardship” (for the employer) Copyright © 2020 Emond Montgomery Publications. All rights reserved.  12 Issues in Recruitment, Selection, & Hiring: Essential Requirements of the Job To be regarded as a BFOR (a standard that is necessary in spite of being discriminatory), the workplace policy, practice, or requirement must: 1. be adopted for a purpose rationally connected to the job, 2. be adopted in an honest belief that it was necessary to satisfy a legitimate business purpose, and 3. be reasonably necessary to accomplish that purpose—and it must be impossible to accommodate the individual without creating undue hardship. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  13 Issues in Recruitment, Selection, & Hiring: Use of Employment Agencies BC: Section 13(2) expressly prohibits discrimination by employment agencies Specifically: refusing to refer a candidate, based on a prohibited ground Alberta: Although employment agencies are not specifically defined in the Act, s 8(1) prohibits “any person” from advertising or circulating application forms that are discriminatory Agencies cannot accept requests, or act on requests, to hire people based on preferences related to prohibited grounds of discrimination Copyright © 2020 Emond Montgomery Publications. All rights reserved.  14 Issues in Recruitment, Selection, & Hiring: Job Advertisements Where and how a job is advertised is important Section 8(1) of the Alberta Act and Section 11 of the BC Code prohibit job ads that directly or indirectly discourage people from applying based on a prohibited ground The wording of a job ad should be geared to the qualifications and skills that are required for job performance Copyright © 2020 Emond Montgomery Publications. All rights reserved.  15 Issues in Recruitment, Selection, & Hiring: Job Application Forms The application form should Avoid discouraging candidates from applying Avoid eliciting information that directly or indirectly excludes individuals on non job-related grounds An attestation clause at the end of the form requires applicants to attest that the facts stated on the form are accurate Copyright © 2020 Emond Montgomery Publications. All rights reserved.  16 Conditional Offers of Employment No contract of employment exists when a conditional offer is made by an employer until those conditions have been fulfilled by the candidate The conditions may allow the employer to gather information from the candidate that, earlier in the recruitment process, would have been forbidden by the Act Information that should be requested only after a conditional offer: Copy of a driver’s license Work authorization from immigration Social insurance card Transcript or copy of professional credentials Requests for medical or health information Copyright © 2020 Emond Montgomery Publications. All rights reserved.  17 Issues in Recruitment, Selection, & Hiring: Pre- Employment Medical or Fitness Examinations Any form of medical testing Must be left to the 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 Copyright © 2020 Emond Montgomery Publications. All rights reserved.  18 Issues in Recruitment, Selection, & Hiring: Pre- Employment Drug and Alcohol Testing Drug or alcohol dependence is a disability Testing in and of itself is not prohibited However, the best advice is not to conduct these tests Pre-employment screening does not measure on-the-job impairment or predict the candidate’s ability to do the job If you test and it comes back positive, it triggers: the responsibility to determine if it is due to a disability; and the requirement to accommodate to the point of undue hardship. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  19 Issues During the Course of Employment: Duty to Accommodate The following are regarded as fundamental principles of accommodation in the context of human rights law: Individualization Dignity Inclusivity Accommodation is a shared and ongoing obligation: Employer Employee Union Copyright © 2020 Emond Montgomery Publications. All rights reserved.  20 Issues During the Course of Employment: What is “Undue Hardship”? Undue hardship is not defined in legislation Occurs when accommodation creates onerous conditions, intolerable costs, or serious disruption Factors considered: 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 Copyright © 2020 Emond Montgomery Publications. All rights reserved.  21 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Disability Gather medical information (with consent) to determine functional abilities Consult with employee, supervisor, union If possible, modify the employee’s current job requirements; if not, assess other available jobs Assess undue hardship of proposed accommodations Implement Monitor frequently Document all facets of the accommodation process—including: Alternatives considered Reasons the alternatives were not accepted Maintain confidentiality throughout Copyright © 2020 Emond Montgomery Publications. All rights reserved.  22 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Disability Essex Police Services Board v Essex Police Association Is an employer required to create a new job based on the reassigned duties of other jobs to satisfy its duty to accommodate? Is an employer required to place the employee who needs an accommodation in a position that is currently occupied by another employee? Jodoin v City of Calgary How diligent must an employer be when searching for accommodation? Copyright © 2020 Emond Montgomery Publications. All rights reserved.  23 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Substance Abuse Substance abuse is a disability Purely recreational use of drugs or alcohol is not a disability Accommodation usually means offering rehabilitation or time off to attend a program An employer is not required to accept ongoing, lengthy absences unrelated to the rehabilitation Be consistent and persistent Condoning Last chance agreements Copyright © 2020 Emond Montgomery Publications. All rights reserved.  24 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Religious Beliefs Religion or creed Dress codes Religious days off Modification of work schedules Central Alberta Dairy Pool Roosma Break policies Friesen v Fisher Bay Seafood Employee’s belief he is commanded to “preach, teach, baptise, and make disciples” unwelcome by coworkers. Is requiring an employee to refrain from preaching during work hours a BFOR? Copyright © 2020 Emond Montgomery Publications. All rights reserved.  25 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Pregnancy and Family Status Sex (pregnancy) Temporary relocation Modified duties Flexible work schedules and break times Family status What is the correct legal test for discrimination on the basis of family status? Health Sciences Association of BC v Campbell River Canada v Johnstone Does the duty to accommodate family status include eldercare? Devaney v SRV Holdings Copyright © 2020 Emond Montgomery Publications. All rights reserved.  26 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Age Social and legal shift in attitude about age discrimination Older workers may need to work for social or financial reasons Older workers make valuable contributions Previous cases justified age discrimination as justifiable for economic reasons and to ensure workforce “renewal” Mandatory retirement Douglas/Kwantlen Faculty Association v Douglas College Dickason v University of Alberta 2008 BC Code amended to prohibit mandatory retirement Association of Justices of Peace of Ontario v Ontario Mandatory retirement does not meet Charter “minimal impairment” test Copyright © 2020 Emond Montgomery Publications. All rights reserved.  27 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: Where there is reasonable suspicion of impairment Where an employee is involved in a workplace accident or incident As a part of an agreed rehabilitation or return-to-work plan Where an employee works for a trucking company that operates in the United States and compliance with American law is required Universal random testing may be carried out: If there is evidence of reasonable cause or necessity (rampant drug/alcohol use) Where the workplace is extremely dangerous (e.g. nuclear power facility) Where test result is positive, tailor sanction to fit circumstances (no automatic termination) Copyright © 2020 Emond Montgomery Publications. All rights reserved.  28 Issues During the Course of Employment: Harassment In AB and BC harassment is prohibited if associated with a protected ground The Act prohibits any public display likely to expose a person or class of persons to hatred or contempt Examples of prohibited behaviours include: Verbal or physical abuse Threats, derogatory remarks, jokes, innuendo, or taunts about appearance or belief The display of pornographic, racist, or offensive images Practical jokes that result in awkwardness or embarrassment Unwelcome invitations or requests (explicit or implied) Intimidation, leering, or other objectionable gestures Condescension or paternalism that undermines self-confidence Unwanted physical contact including touching, patting, pinching, or punching Copyright © 2020 Emond Montgomery Publications. All rights reserved.  29 Issues During the Course of Employment: Types of Harassment Poisoned work environment Comments or actions are not directed at an individual, but have made the workplace hostile or unwelcoming to them Sexual harassment Comments or actions based on sex that are unwelcome, or should be reasonably known to be unwelcome Normally requires a course of vexatious conduct rather than a single instance, unless very serious “Sexting” outside of work hours Sexual solicitation Someone in a position of authority makes unwelcome advances or requests for sexual favours The threat of reprisal or promise of reward is explicit Copyright © 2020 Emond Montgomery Publications. All rights reserved.  30 Issues During the Course of Employment: Harassment Legal standard for determining if harassment has occurred: Would a reasonable person think the conduct or comment was inappropriate? There is an onus on the person experiencing the harassment to inform the harasser that the behaviour is unwelcome Employers are legally responsible for promoting a harassment-free workplace: Commitment Well-known policies and procedures Education and awareness Processes for dealing with complaints Prompt investigation by an impartial and knowledgeable person Documentation Confidentiality Copyright © 2020 Emond Montgomery Publications. All rights reserved.  31 Issues During the Course of Employment: Employer Liability for Human Rights Violations Vicarious liability For discriminatory actions of its agents and employees in the workplace Direct liability For discriminatory actions of management Employer is liable for workplace harassment by managers but may avoid liability for non-managerial harassment if it can show: it was unaware that harassment was occurring, it was diligent in preventing the harassment, and it responded appropriately once aware of the harassment. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  32 Issues During the Course of Employment: Investigating Harassment Complaints 1. Investigate in a timely 6. Do not ask leading manner questions 2. Ensure the investigator is 7. Interview third-party unbiased witnesses 3. Give the accused a 8. Document the chance to respond investigation 4. Follow the employer’s 9. Keep and open mind policies and procedures 10. Consider the entire 5. Interview witnesses context separately Copyright © 2020 Emond Montgomery Publications. All rights reserved.