Chapter 3 Human resources – employment equity

Importance of understanding the legal framework

 Limit potential liability
 Shared responsibility
 Do the right thing

Multiple legal jurisdictions for employment/labor law

 Provincial/territorial employment laws govern 90% of Canadian workers
 Federal laws govern 10% of workers –the federal civil service, crown
corporations and agencies, transportation, banking and communications
industries.
 Then how many jurisdictions govern employment law - 13, much
commonality

Legal framework for employment law in Canada

 1 constitutional law (the constitution act of 1982)
 Charter of rights and freedoms
 2 Legislated acts of parliament (legislation)
 Laws that regulate some areas of HR
 ex) Canadian human resources act (CHRA, occupational health and safety
acts)
 3 regulations (for legislated acts)
 Aid in the interpretation of laws – ex) regulatory bodies like the human rights
commission
 4 common law
 Judicial precedents
 5 contract law
 Collective agreements/ employment contracts

Major forms of employment legislation

Employment standards legislations
Human rights codes
Legislation to advance the employment circumstances of designated groups
employment equity, pay equity

Employment/labor standards legislation (enforcement based on complaints)

 Establish minimum employee entitlements pertaining to:
 Wages paid holidays and vacation
 Maternity, parenting and adoption leaves
 Bereavement and compassionate care leave
 Termination notice and overtime pay
 Set limit on maximum number of work hours permitted per day or week
 Equal pay for equal work – applies to gender discrimination
 Ex) Ontario – employment standards act, administered by the ministry of labor
 You are working as a landscaper for the summer; supervisor tells you that
you are not entitled to overtime pay. Check the employment standards
act.

Legislation protection human rights – human rights codes

 The charter of rights and freedoms (1982)
 Guarantees fundamental freedoms to all Canadians
 Section 15 most relates to employment – prohibited grounds: race,
national or ethnic origin, sex age, citizenship
 The charter forms the foundation of human rights legislations in other
jurisdictions

Human rights and discrimination

 Every employer is affected by HR. legislation – prohibits discrimination
 Discrimination: distinction, exclusion or preference based on a prohibited
group, which nullifies or impairs a persons rights
 Very broad application
 Federal employees: Canadian human rights act (CHRA)
 Other employees: provincial and territorial HR. acts/ codes – most are very
similar to federal

Questions
 During a job interview is it okay to ask if a candidate is married when you’re
just curious no intention to discriminate? Not really
 Is it okay to ask for a candidate’s age, this info is needed to fill out health
insurance forms? Yes required for the job

Systematic (unintentional) vs. intentional

 Systematic (unintentional): employment criteria that have the effect of
discriminating on prohibited grounds but are not used with the intent to
discriminate. EX) policies or practices (height requirements), using a
recruitment firm to act for you
 Intentional: deliberate use of race religion or other prohibited criteria in
employment decisions
 EX) Griggs vs. Duke Power (1971)

Reasonable accommodation
 Adjustments in job content and working conditions that an employer may be
expected to make in order to accommodate a person protected by human
rights provisions

Undue hardship
 Human rights legislation mandates employers must accommodate to the
point of undue hardship
  Undue hardship: the point where the financial cost or health and safety
risks make accommodation impossible

Question
 Is there any time when discrimination by an employer is permitted under
human rights legislation? Yes

Bona Fide occupational requirement (BFOR)/ BFOQ

 A justified business reason for discriminating against a member of a
protected class
 EX) a social service organization serving people who are deaf may be allowed
to prefer a liaison officer who has a hearing disability
 Or other special interest groups:
 Religious organizations
 Philanthropic organizations
 Specialized educational organizations

Harassment
 Definition: Unwelcome behavior that demeans, humiliates, or embarrasses a
person and that a reasonable person should have known would be
unwelcome.
 Ex) bullying - one type – repeated and deliberate incidents of negative
behavior
 Supreme court: employers responsibility to protect employees from
harassment

What is sexual harassment? 6+ examples probably on the midterm

 Definition: Unwelcome sexual advances, requests for sexual favors, and
other physical and verbal contact of a sexual nature in the workplace
 Activity that creates a hostile working environment, condition for
employment (when it affects the terms of employment)
 EXAMPLES
 While teaching Gary how to run the spreadsheet, Lois puts her hand on his
shoulder – more context needed, specify circumstances, Gary needs to let
Lois know if it is unwelcome
 Several of the machinists have been whistling at Julie and shouting off color
remarks, Julie was found crying- yes this is
 Two separate married people are dating outside the office – not sexual
harassment
 Boss frequently asks Julie out for drinks she goes but enjoys his company –
borderline because he is the boss
 Jerry frequently tells coworkers she is wearing is attractive- depends on
situation
Harassment policies
 To reduce liability and encourage a respectful workplace employers should:
 Establish sound anti harassment policies- respectful workplace and climate
 Communicate such policies to all employees
 Enforce policies in a fair and consistent manner
 Take an active role in maintaining a working environment that is free of
harassment
 To succeed need to be confidential need to have zero tolerance!
 Only 4/10 women who suffer harassment report it
 --ex) why? Retaliation, against not safe, job security, not taken seriously on
occasion.
 To encourage a respectful workplace and reduce liability employers should:
  Establish organization wide anti-harassment policy
 Communicate policies to all employees
 Enforce policies in a fair and consistent manner (and establish complaint
procedures)
 Take an active role in maintaining a working environment that is free of
harassment
 To succeed: need to be confidential, need to have zero tolerance the
organization must be committed
 See page 107, hrm 3.9

Employment Equity
 Federal employment equity act (1986/1995)
 Based on charter of rights and freedoms
 More proactive approach needed
 HR. rights laws focus on prohibiting discrimination – reactive (based on
complaints)
 Came out of 1984 Abella commission
 Employment equity legislation aims to:
 Remove employment barriers for disadvantages groups
 Promote equity

Employment equity designated groups

 Women
 People with disabilities
 Visible minorities
 Aboriginals
 Plight of 4 designated groups:
 Lower pay
 Occupational segregation
 Higher rates of unemployment
 Underemployment
 Glass ceiling
 The employment equity act (1995)
 Applies to organizations under federal jurisdiction (regulated under
Canada labor code):
 Over 100 employees
 Prepare employment equity plan and report annually
 Oversight shared by CHR commission and employment and social
development Canada (ESDC) on site compliance reviews/fines
 Federal contractors
 Over 100 employees
 $200000 >

The implementation of employment equity

1. Senior management commitment
2. Data collection and analysis:
 Self identification form – stock data and flow data
3. Employment systems review:
 Systematic discrimination? Reasonable accommodation?
 Special measures needed? (eg. Pg 102 – federal p. service)
4. Establishment of a work plan
5. Implementation
6. Evaluation, monitoring and revision

Pay equity
 Amendment to the Canadian human rights act (1978)
 Illegal to discriminate on the basis of job content – federal jurisdiction only
 Eliminate wage gap – 2010, women making 85 cents while male counterparts
made 1$. (36% gap in 1987 – 64 cents)
 Based on 2 principles – pay equity and pay equality. What is the difference?
 Equity: equal pay for work of equal value

Diversity management
 Voluntary – broader/ more inclusive than employment equity
 A set of activities designated to:
 Integrate all employees in a multicultural workforce
 Use diversity to enhance the organizations effectiveness
 Diversity management: the optimization of an organizations multicultural
workforce in order to reach business objectives

What is the business case for diversity management?

 Better utilization of talent
 Increased marketplace understanding
 Enhanced creativity
 Increased quality of team problem solving
 Greater understanding in leadership positions
  Better retention
 Better corporate image

TEXTBOOK

Employment equity: The employment of individuals in a fair and nonbiased

manner

Designated groups: Women, visible minorities, Aboriginal people, and persons

with disabilities who have been disadvantaged in employment

Bona fide occupational qualification (BFOQ): A justifiable reason for

discrimination based on business reasons of safety or effectiveness

Stock data: Data showing the status of designated groups in occupational categories
and compensation levels

Flow data: Data that provide a profile of the employment decisions affecting
designated groups

Underutilization: Term applied to designated groups that are not utilized or

represented in the employer’s workforce proportional to their numbers in the
labour market

Concentration: Term applied to designated groups whose numbers in a particular

occupation or level are high relative to their numbers in the labour market

Systemic discrimination: The exclusion of members of certain groups through the

application of employment policies or practices based on criteria that are not job
related

Reasonable accommodation: Attempt by employers to adjust the working

conditions or schedules of employees with disabilities or religious preferences

Sexual harassment: Unwelcome advances, requests for sexual favours, and other
verbal or physical conduct of a sexual nature in the working environment

Diversity management: The optimization of an organization’s multicultural

workforce to reach business objectives