Transcript Week 2

Legal Requirements in HRM
2BC3
Week 2
________________________
Dr. Teal McAteer
DeGroote School of Business
McMaster University
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Legal Issues in HRM
• Must consider the law when deciding:
– 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
• Other benefits
– Fair treatment of employees may have
positive organizational impact
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Canada’s Legal
Environment re:
Employment
• Constitutional Law
– Charter of Rights and Freedoms
• Statutes or Legislation
– Acts of federal and provincial parliaments
• Common Law
– Not derived from specific legislation
– Based on judge’s decisions
• Contract Law
– Individual employment contracts, collective
agreements
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Charter of Rights and Freedoms
• 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.
• Section 15: freedom from discrimination
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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
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Human Rights Legislation
• Purpose
– To provide equal employment opportunities
(i.e., prevent discrimination) to members of
protected groups
– Makes it illegal to discriminate—even
unintentionally—against certain groups
• 2 levels of legislation
– Federal
– Provincial
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Human Rights Legislation
Federal
– Canadian Human Rights Act (1978)
– Employers under federal jurisdiction
– About 10% of labour force
• E.g., federal gov’t, crown corps, banks, airlines,
etc.
Provincial & Territorial
– 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
• CHRA prohibits discrimination based on:
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Race or colour
Ethnic or national origin
Creed or religion
Sex (including pregnancy and childbirth)
Marital status
Age
Disability
Harassment
Past conviction (for which a pardon has been
granted)
• Slight variations between federal and provincial
legislation/jurisdictions
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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
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minorities
Bona Fide Occupational
Requirements
• Text refers to them as BFO Qualifications
• What is a BFOR / BFOQ?
– A job requirement that legally overrides a
human rights protection
– Allowed when abilities needed to carry out the
essential job requirements are related to a
prohibited ground
– E.g., employee’s religious commitments
require wearing a turban; job requires a hard
hat for safety purposes
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Bona Fide Occupational
Requirements
Examples of court cases involving BFORs
• Etobicoke, ON – 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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Bona Fide Occupational
Requirements
When BFORs are upheld:
• Theatrical productions
– That require actors with particular
characteristics
• 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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Supreme Court Case re:
BC Firefighter
• 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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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
belief that it was necessary to accomplish
the purpose identified in stage 1?
3. Is the standard reasonably necessary to
accomplish its purpose?
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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.
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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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Harassment
• Harassment based on any of the
prohibited grounds
– No clear definition
– Occurs when a member of an org treats
an employee in a disparate manner
because of ee’s sex, race, religion, etc.
– Behaviour that creates a hostile work
environment
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Harassment
• 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
• Unsolicited or unwelcome sex- or gender-based
conduct that has adverse employment
consequences for target
• 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
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employment-related threats or promises
Enforcement of Human Rights
Legislation
Complaint to Human Rights Commission
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Complaint notification
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Reasonable cause?
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Investigation
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Attempted resolution / Mediation
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Decision / remedy specified
Acceptance or appeal
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Remedies for Human Rights
Violations
• May occur at various stages
– Early settlement, conciliation agreement, or tribunal
decision
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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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Employment Standards Legislation
• 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
• Minimum wage rates
– $8 as of Feb 1, 2007
• 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)
– May be modified if exceptional circumstances (e.g.,
emergency)
• 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
• 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
• Some provinces have EE legislation; some don’t
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Employment Equity
• Requirements of EE legislation
– 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 ee’s to
accommodate religious obligations
• EE has resulted in concerns with reverse
discrimination
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Employment Equity and HR
• Virtually every HR function is affected by
employment equity:
– HR planning should incorporate equity goals
– Job descriptions should not include requirements
which exclude certain individuals
– Selection must use non-discriminatory screening
practices
– Training & Development opportunities must be
available for all groups
– Performance appraisal must be free from bias
– Compensation must be based on skills, performance
• What is a tool which would help an organization
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ensure these requirements are met???
Pay Equity
• Pay Equity
– Women earn on average 80 cents for every
$1 earned by men
– Many reasons for this gap: differences in
work experience, education, occupation etc.
– Pay equity has a much narrower focus 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
• “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 have legislation
covering the public and private sector,
while other provinces only apply to the
public sector
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Other Issues of HR and the Law
• The following will be discussed when
these topics are covered later in the
semester
• Employee rights and discipline
– Discipline, termination, etc.
• Organizing unions and collective
bargaining
– Canada Labour Code
• Health and Safety
– Health and safety laws, worker’s
compensation; WHMIS
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Questions / Comments ?
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