Transcript 3BC3 Lecture Notes - McMaster University

LEGAL ISSUES IN HRM
1
Announcements
ELM update
 Assignment

◦ Compare any 2 organizations
◦ Functions such as recruitment, selection,
compensation,, training and development,
labour relations, etc.
◦ What are the differences and why? What
problems are the companies experiencing in
HR/LR practices and how are these being
resolved?

Guest speaker Anthony Celani next week
2
Lecture Agenda

Overview of Canadian legal context

Charter of Rights and Freedoms

Human Rights Legislation

Employment Standards Legislation

Equity Legislation
◦ Employment Equity
◦ Pay Equity
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Legal Issues in HRM

Must consider the law when deciding:
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Which employee(s) to hire
How to compensate employees
What benefits to offer
How to accommodate employees with
dependents
◦ How to accommodate employees with
disabilities
◦ How and when to fire employees
◦ How to manage health and safety
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Why obey the law (related to employment)?

Organizations are embedded in society
◦ Must also serve social interests

It’s all about fairness
◦ Employment laws are intended to ensure fair
treatment of employees
◦ Clarifies rights and responsibilities for all
parties
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Other benefits
◦ Fair treatment of employees may have positive
organizational impact
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Canada’s Legal Environment re:
Employment
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Constitutional Law
◦ Charter of Rights and Freedoms
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Statutes or Legislation
◦ Acts of federal and provincial parliaments
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Common Law
◦ Not derived from specific legislation
◦ Based on judge’s decisions
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Contract Law
◦ Individual employment contracts, collective agreements
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Charter of Rights and Freedoms
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
Part of the Constitution Act, 1982
Provides a range of fundamental rights to
Canadians
◦ Freedom of conscience and religion
◦ Freedom of thought, belief, opinion, and
expression, including freedom of the press and
other media of communication
◦ Freedom of association
◦ The right to live and seek employment anywhere
in Canada
◦ Etc.
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Charter of Rights and Freedoms

Section 15: Principle of equality
◦ Freedom from discrimination
• “Every individual is equal before and under the
law… without discrimination based on race,
national or ethnic origin, colour, religion, sex,
age, or mental or physical disability.”
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Charter of Rights and Freedoms

Subsection (1) of Constitution Act
◦ “does not preclude any law, program or
activity that has as its object the amelioration
of conditions of disadvantaged individuals or
groups…”
◦ Implies that programs which favour individuals
from certain groups (to overcome previous
disadvantage) are OK
 E.g., employment equity programs
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Charter of Rights and Freedoms


HRM Applications
◦ Freedom of association (section 2) has implications
for labour relations
◦ 1987 Supreme court decision:
◦ Includes right to organize and belong to a union
◦ Does not include the right to bargain collectively
and strike—are not fundamental freedoms, but are
regulated by legislation
Affects HRM, but more indirectly
◦ Generally speaking, other legislation needs to meet the
standards of the Charter
◦ Cases decided in Supreme Court

June, 2007 Supreme court decision reversed
this
 Suggested that right to bargain collectively is a fundamental human right
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Human Rights Legislation

Purpose
◦ Prohibits discrimination in employment and in
the provision of goods and services
◦ To provide equal employment opportunities
(i.e., prevent discrimination) to members of
protected groups

2 levels of legislation
◦ Federal
◦ Provincial
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Human Rights Legislation

Federal
◦ Canadian Human Rights Act (CHRA,1978)
◦ Employers under federal jurisdiction
◦ About 10% of labour force
 E.g., federal gov’t, crown corps, banks, airlines, etc.

Provincial
◦ Ontario Human Rights Code (1990)
◦ Employers under provincial jurisdiction
◦ About 90% of labour force
 E.g., manufacturing (GM), retail (Canadian Tire), service,
etc
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Prohibited Grounds of Discrimination
Pardoned
convicts
Disability
Race and
colour
National or
ethnic origin
Canadian Human
Rights Act
Marital and
family status
Religion
Age
Sex, sexual
orientation
•Slight variations between federal and provincial legislation
Discrimination

Not specifically defined in federal
legislation
◦ Involves practices that fail to provide equal
opportunity to members of protected groups

Direct (Intentional) Discrimination
◦ Employment practice that intentionally
discriminates on a prohibited ground
◦ The deliberate use of prohibited grounds in
employment decisions
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Discrimination

Indirect (Systemic) Discrimination
◦ Employment practice that results in
discrimination against protected group, but is not
intentional
◦ Focus on the impact, not intent
◦ Referred to as: Adverse Impact, Disparate Impact,
Adverse Effect Discrimination, Constructive
Discrimination
◦ E.g., height requirement for police officers
discriminates against women, visible minorities
◦ E.g., employee referrals
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Bona Fide Occupational Requirements
Text refers to them as BFO Qualifications
 What is a BFOR / BFOQ?

◦ A job requirement that legally overrides
human rights protection
◦ Allowed when characteristics needed to carry
out the essential job requirements are related
to a prohibited ground
◦ E.g., religious schools may hire only teachers
of a particular faith
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Bona Fide Occupational Requirements
Examples of court cases involving BFORs

Etobicoke, ON
◦ Policy of mandatory retirement for firefighters
after age 60
◦ 1982 Supreme court decision stated that
being under 60 was not a BFOR
 Inadequate evidence suggesting that reaching age 60
resulted in inability to perform the job
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Bona Fide Occupational Requirements
Examples of court cases involving BFORs

Canadian Coast Guard
◦ Applicant with complete hearing loss in one
ear was excluded from officer cadet training
◦ Coast guard cited the condition was a safety
risk
◦ BFOR claim was denied because employer’s
evidence of the safety risk was inadequate
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Supreme Court Case re:
BC Fire Fighter
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Woman employed in elite firefighting unit by
province of BC for more than 2 years
New fitness tests were introduced for unit
She failed one of new tests (run 2.5 km in 11
minutes) and was fired
Union grieved – got appealed to Supreme Court
Court sided with complainant
◦ BC gov’t had failed to establish the fitness requirement
as a BFOR – lack of evidence showing inability to meet
it was a safety risk
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Bona Fide Occupational Requirements
When BFORs are upheld:
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Theatrical productions
◦ That require actors with particular
characteristics
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Use of gender as selection criterion
◦ E.g., Male nursing attendants to provide
bathing, etc. for male hospital patients
◦ E.g., RCMP guards must be of same sex as
prisoners being guarded
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Criteria used to assess BFOR

In this decision, the court established 3 criteria
to assess appropriateness of BFORs
1. Is the standard rationally connected to the
performance of the job?
2. Was the standard established in an honest and
good faith belief that it was necessary to
accomplish the purpose identified in stage 1?
3. Is the standard reasonably necessary to accomplish
its purpose? (i.e., must show it is impossible to
accommodate employees without imposing undue
hardship on employer)
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Duty to Accommodate

Requirement that employer must
accommodate the employee to the point
of “undue hardship”
◦ Aka: Reasonable Accommodation
◦ Employer is required to make certain adjustments
to job content or working conditions if an
individual cannot meet job requirements (due to
BFOR)
◦ E.g., redesigning work stations, lighting, adjusting
work schedules

Undue hardship not specifically defined
◦ Factors to consider include financial cost,
disruption of collective agreement, morale of
other employees, etc.
22
O’Malley v. Simpson-Sears Ltd.
O’Malley was a full-time sales clerk at S-S for several
years; worked 2/3 Saturdays
 Became member of 7th Day Adventist Church which
observes sabbath from Fri – Sat PM
 No longer available to work on Saturdays
 Employer suggested she resign; she didn’t
 Employer cut her hours
 Lower courts sided with employer, saying this was not
intentional discrimination
 Supreme Court ruled it was adverse effect discrimination
(not intentional)
 Inadequate reason for not accommodating employee

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Adverse Effect Discrimination as defined in
O’Malley v. Simpson-Sears Ltd.

“…an employer for genuine business
reasons adopts a rule or standard which
is on its face neutral, and which will apply
equally to all employees, but which has a
discriminatory effect upon a prohibited
ground on one employee or group of
employees in that it imposes, because of
some special characteristic of the
employee or group, obligations, penalties,
or restrictive conditions not imposed on
other members of the work group”
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Enforcement of Human Rights
Legislation
Complaint to Human Rights Commission
↓
Complaint notification
↓
Reasonable cause?
↓
Investigation
↓
Attempted resolution / Mediation
↓
Decision / remedy specified
↓
Acceptance or appeal
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Remedies for Human Rights Violations
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May occur at various stages
◦ Early settlement, conciliation agreement, or tribunal
decision
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Could include:
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Stoppage of discriminatory practice
Restore rights, opportunities that were denied victim
Reinstatement and/or compensation for lost wages
Letters of apology
Issuance of an anti-harassment policy by an employer
(in cases of harassment complaints)
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Video: Workplace Discrimination12 Danger Zones

http://www.youtube.com/watch?v=alEH4
NyTvWc&feature=related
What are your thoughts?
 What were some of the prohibited
grounds of discrimination covered in this
video?
 What would you do as a HR manager?

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Employment Standards Legislation
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Provincial legislation (e.g., Employment
Standards Act) addressing:
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Minimum wage rates
Maximum hours of work
Paid holidays and vacations
Leave for maternity, adoption, bereavement
Payment upon termination of employment
Purpose
◦ Promote fair and productive workplaces
◦ Balance fair treatment of employees and employer
concerns with productivity and flexibility
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Examples from Ontario’s ESA
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Minimum wage rates
- $9.50 as of April 1, 2009 (up to $10.25 in 2010)
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Maximum hours of work
◦ No more than 5 consecutive hours without .5 hr
meal break
◦ Typically, 8 hrs/day or 48 hrs / week
◦ Max of 60 hrs / week (if agreed in writing)
◦ See: www.labour.gov.on.ca/english/es/guide/index.html
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Pregnancy / Parental leave
◦ Birth mothers: 17 weeks pregnancy leave & 35 weeks
parental leave
◦ Other parents: 37 weeks parental leave
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Equity Legislation
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Proactive rather than reactive
Purpose is to advance the employment
circumstances of certain groups that
have been historically disadvantaged
2 main categories of legislation:
1. Employment Equity
2. Pay Equity
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Employment Equity Act
Legislation aimed at improving the employment
status of women, visible minorities, aboriginals,
and people with disabilities
 Purpose is to address historical discrimination
 Called Affirmative Action in the US – although
there are some differences in the two
 Applies to federally-regulated employers with
100+ employees
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BC has EE legislation; some have policies
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Employment Equity
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Requirements of EE legislation
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Prepare a plan to achieve equity
Timetable for implementation
Submit on-going statistics
Provide for reasonable accommodation
 E.g., sign language for job interview with deaf
applicant
 E.g., adjust work schedules for employees to
accommodate religious obligations
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EE has resulted in concerns with reverse
discrimination
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Employment Equity and HR
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Examples:
◦ HR planning should incorporate equity goals
◦ Job descriptions should not include requirements
which exclude certain individuals
◦ Selection system must use non-discriminatory
practices
◦ Training & Development opportunities must be
available for all groups
◦ Promotion decisions must be free from bias
◦ Compensation must be based on skills,
performance etc.
 What
is one tool which would help an
organization ensure these requirements are
met???
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Pay Equity

Pay Equity
◦ Women earn on average 82 cents for every
$1 earned by men
◦ Many potential reasons for this gap:
differences in work experience, education,
occupation etc.
 Although gap still remains when these are
controlled
◦ Pay equity focuses on reducing the difference
in pay earned by men and women
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Pay Equity

“Equal Pay for Equal Work”
◦ Job for job - same or similar pay
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“Equal Pay for Work of Equal Value”
◦ If two jobs have similar 1) skills, 2) effort, 3)
responsibilities and 4) working conditions, then they
are valued as the same
• Ontario & Quebec (& Federal) have legislation
covering the public and private sector (orgs with
>10 employees), while other provinces only apply
to the public sector
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Harassment
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Harassment based on any of the
prohibited grounds
◦ No clear definition
◦ Occurs when a member of an org treats an
employee in an offensive manner because of
employee’s sex, race, religion, etc.
◦ Unwanted behaviour that creates a hostile
work environment
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Harassment
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CHRC’s standard
◦ Is harassment if “a reasonable person ought to
have known that such behaviour was
unwelcome”
◦ May include verbal abuse, threats, display of
offensive material, practical jokes that cause
embarrassment, unwelcome remarks,
innuendo, etc.
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Sexual Harassment
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Unsolicited or unwelcome sex- or genderbased conduct that has adverse employment
consequences for target
Includes range of behaviours
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Verbal – comments, etc.
Non-verbal – display of pornographic material
Physical – unwelcome touching
Other – sexual activity exchanged for positive
employment consequences; threats of negative
consequences if advances are rejected
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Sexual Harassment
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3 characteristics of SH identified by CHR
Tribunal
1. Encounters must be unsolicited, unwelcome,
and expressly or implicitly known by the
respondent to be unwelcome;
2. The conduct must either continue despite
complainant’s protests or, if the conduct stops,
the complainant’s protests must have led to
negative employment consequences; and
3. The complainant’s cooperation must be due to
employment-related threats or promises
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Sexual Harassment
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Model sexual harassment policies can be
found at CHRC’s website
◦ http://www.chrcccdp.ca/publications/anti_harassment_toc-en.asp
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Should include the following: policy statement,
descriptions of harassing behaviour,
procedures for making and investigating
complaints, corrective action, and protection
from retaliation
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Article Discussion
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Does intra-office romance put employers
at risk?
Should/can intra-office romantic
relationships be banned?
What are the legal concerns with intraoffice dating?
Are “love contracts” a practical solution?
Alternative solutions?
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Other Issues of HR and the Law
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The following will be discussed when these
topics are covered later in the semester
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Employee rights and discipline
◦ Discipline, termination, etc.
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Organizing unions and collective bargaining
◦ Canada Labour Code
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Health and Safety
◦ Health and safety laws, worker’s compensation
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Quiz- True or False???

Levitt, H. (Feb. 8, 2006), Employment law myths: The
true story. National Post.
1.
Excellent, loyal performers cannot be fired
◦
2.
An employer can terminate anyone, even arbitrarily, as long as
it pays appropriate severance
Good performers are entitled to more severance
◦
◦
Severance is a function of length of service, position, age, etc.
Though no severance is due if termination is for cause
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Quiz- True or False???
3.
In a downsizing, employees must be laid off in order of
seniority
◦
◦
4.
If an employee provides a doctor’s note, he is entitled
to sick leave
◦
5.
Seniority has no legal relevance in non-union environment
In union environment, seniority only has an effect if it’s part of
the CBA – not always the case
Judges do not always accept doctors’ notes, as many doctors
will provide one w/o examination
An employee has a right to select his vacation dates
◦
unless policy dictates this, vacation times are up to the
employer
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Questions / Comments ?
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