Part

Part 2:
2: Staffing
Staffing the
the Organization
Organization
Chapter 3: Legal Environment of
Equal Employment and Diversity

Prepared by Linda Eligh, University of Western Ontario

3-1
Copyright 2008 by Nelson, a division of Thomson Canada Limited.

Learning
Learning Objectives
Objectives
After you have read this chapter, you should be able
to:
1.Introduce Canadas legal environment and discuss the
Canadian Charter of Rights and Freedoms.
2.Discuss Canadian Human Rights Acts in various
jurisdictions and direct and indirect discrimination on
prohibited grounds.
3.Introduce the meaning of several prohibited grounds with
examples of court challenges.

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Learning
Learning Objectives
Objectives
4. Describe the two types of sexual harassment and how
employers should respond to sexual harassment
complaints.
5. Discuss the employment standards acts, labour
relations legislation, and occupational health and
safety, and the requirements of each jurisdiction.
6. Discuss the issues surrounding employment equity and
pay equity
7. Define diversity management and discuss why it is
important.

Copyright 2008 by Nelson, a division of Thomson

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Canadas
Canadas Legal
Legal Environment
Environment
Canadas Legal Framework
Distinct and complex.
Comprised of two sets of laws governing workers in federal
or provincial and territorial sectors of the country:
10% of Canadian workforce (federal sector)
Canada Labour Code
Canadian Human Rights Act
90% of workforce (remaining non-federal sectors)
Provincial Legislation
Territorial Legislation
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Canadas
Canadas Legal
Legal Environment
Environment
CANADIAN CHARTER
OF RIGHTS AND FREEDOMS
Federal law enacted in 1982 guaranteeing
the rights and freedoms of all Canadians
Part of the Canadian Constitution (1982).
A set of laws containing the basic rules for
how Canada operates.
Challenges to both the Charter and the
Constitution are handled in the courts.

Copyright 2008 by Nelson, a division of Thomson

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Charter
Charter of
of Rights
Rights and
and Freedoms
Freedoms
Fundamental freedoms guaranteed:
Freedom of conscience and religion
Freedom of thought, belief, opinion and expression
(including freedom of the press and other media of
communication)
Freedom of peaceful assembly; and
Freedom of association

Other rights protected by the Charter:

Mobility rights, legal rights, equality rights, official
language and minority language education rights, and
rights of Aboriginal peoples of Canada.

Copyright 2008 by Nelson, a division of Thomson

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Charter
Charter of
of Rights
Rights and
and Freedoms
Freedoms
Section 33 the notwithstanding clause
Under the notwithstanding clause, Parliament or a
legislature can pass a law that is exempt from certain
sections of the Charter (i.e. the fundamental freedoms,
the legal rights or the equality rights.)

Used very rarely

Example:

Quebec Government passed laws

requiring signs to be in French only.

Expires after five years.

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Human
Human Rights
Rights
Canadian Human Rights Legislation
human rights acts or codes legislated to prohibit
discrimination on various grounds with respect to
employment, provision of goods, services and
facilities normally available to the public, and
accommodation.

Two types of legislation:

Canadian Human Rights Act
covers

federally regulated employees who are 10% of

Canadian workforce

Provincial and Territorial Human Rights Legislation

covers

non-federally regulated employees (remaining 90%

of workforce)

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PROHIBITED
PROHIBITED GROUNDS
GROUNDS
RACE

SEXUAL ORIENTATION

RELIGION

MARITAL STATUS

AGE

FAMILY STATUS

SEX

NATIONAL/ETHNIC ORIGIN

DISABILITY

CONVICTIONS
(PARDONS NOT GRANTED)

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What
What is
is discrimination?
discrimination?
Discrimination is any practice or standard that,
intentionally or not, has the effect of limiting the
opportunities available to certain individuals or
groups because of shared personal
characteristics such as race or colour, in a way
that perpetuates the view that they are less
capable, or are less worthy of recognition or
value.
- New Brunswick Human Rights Commission

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Types
Types of
of Discrimination
Discrimination
Direct Discrimination:
occurs when people are treated differently
(usually less favourably) based on a
prohibited ground.

Indirect/Constructive/Adverse or
Systemic Discrimination:
occurs when people are treated differently
(usually less favourably) as a result of a
seemingly neutral policy or practice.
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Employer
Employer Requirements
Requirements
Bona Fide Occupational Requirement
(BFOR/Q)
a justifiable reason for discriminating against
a member of a designated group.

Duty to Accommodate:
an employers legal duty to take reasonable
steps, in policies or conditions of work, to
accommodate an employees individual
needs.

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Harassment
Harassment

Harassment: any unwanted physical or

verbal conduct that offends or humiliates you.
Such conduct can interfere with your ability to
do a job or obtain a service.
(Canadian Human Rights Code)

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Harassment
Harassment
Harassment is a type of discrimination
that takes many forms:
Threats, intimidation or verbal abuse
Unwelcome remarks or jokes
Display of sexist, racist or other offensive
pictures/posters
Sexually suggestive remarks or gestures
Inappropriate physical contact (touching, pinching
etc.)
Leering or whistling
Outright demands for sexual favours
Physical assault (including sexual assault)
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Harassment
Harassment
Sexual Harassment
unwanted, often coercive, sexual behaviour directed
by one person towards another. Can be emotionally
abusive and creates an unhealthy, unproductive work
environment.
Most frequent complaint received by human rights
agencies.
Most costly for employers without effective
policies, or who fail to treat such complaints from
employees, customers and/or clients seriously.

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Sexual
Sexual Harassment
Harassment
Consensual Relationships and Workplace
Romance Survey:
63% of Canadians have had a workplace romance

Creates Employer Dilemma:

monitor workplace relationships and risk meddling in
employees private lives?
ignore such relationships and risk the potential
problems they present?

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Sexual
Sexual Harassment
Harassment
Electronic Sexual Harassment
Cyber sexual harassment is a growing concern
that occurs in a variety of forms:
Forwarding e-mail jokes with sexual content
Sending e-mails pestering another employee for a
date
Accessing pornographic web sites at work and
sharing content with other employees

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Sexual
Sexual Harassment
Harassment
Employer actions to stop electronic sexual
harassment:
Adopt zero tolerance policies, whereby
disciplinary action occurs regardless of proclaimed
innocence of the employee.
Train all employees on sexual harassment and
electronic usage policies.
Equip e-mail systems and Web sites with
scanners to screen for inappropriate words and
images and flag offending employees for disciplinary
action.

Copyright 2008 by Nelson, a division of Thomson

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Sexual
Sexual Harassment
Harassment
Two basic types of sexual harassment:
Quid pro quo:
Sexual harassment in which employment outcomes
are linked to the individual granting sexual favours.

Hostile Environment:
Sexual harassment in which an individuals work
performance or psychological well-being is
unreasonably affected by intimidating or offensive
working conditions.

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Sexual
Sexual Harassment
Harassment
90% of all women working outside the home will
experience sexual harassment at some point in their
working lives.
49% of women in the workforce have experienced at
least one type of unwanted sexual attention.
Only 4 of every 10 Canadian women who suffers
sexual harassment at work will take any formal action.
Only 1 out of every 2 women believe a complain would
be taken seriously in their workplace.
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Other
Other Legislation
Legislation
The Canada Labour Code:
-- governs

workplace for industries with federal

jurisdiction, and regulates labour standards and
occupational health and safety.

Employment Standards:
-- minimum,

non- negotiable standards of employment

required by law.
-- designed to protect workers from possible exploitation
through unregulated labour markets.

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Other
Other Legislation
Legislation
Occupational Health and Safety (OH&S)
legislation that outlines the general rights and
responsibilities of the employer, the supervisor and
the worker.
all employee have three basic rights with respect to
Occupation Health and Safety:

The Right to Know (e.g. WHMIS)

The Right to Participate (Health and Safety Committees)
The Right to Refuse Dangerous Work

Labour Relations Legislation:

governs collective bargaining and industrial relations
among employers, their unionized employees and trade
unions.
Copyright 2008 by Nelson, a division of Thomson

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Employment
Employment Equity
Equity and
and Pay
Pay Equity
Equity
Two Separate Pieces of Legislation
Employment Equity (EE)
addresses

discrimination in employment, especially

where designated groups are
concerned

Pay Equity
addresses

historical wage gaps between females

and males doing the same or comparable work

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Employment
Employment Equity
Equity (EE)
(EE)
Employment Equity
a program, practice or legislation designed to
provide access to employment for people in
designated groups who have been subject to
discrimination.

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Employment
Employment Equity
Equity (EE)
(EE)
The Employment Equity Act (1986)
passed to achieve equality in the workplace and to
correct conditions that create barriers to employment
for members of designated groups and established
the need for accommodation of differences.
Highlights included LEEP and FCP.

The Employment Equity Act (1995)

replaced 1986 act and strengthened legislation by
covering private sector employers under federal
jurisdiction, as well as federal government employees.

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Employment
Employment Equity
Equity (EE)
(EE)
Employer Requirements:
Employers are required to develop and implement
EE plans and programs, and to report to HRSDC
annually on their progress in achieving a
representative workforce for the four designated
groups:
Aboriginal people
Persons with disabilities
Visible minorities
Women

Copyright 2008 by Nelson, a division of Thomson

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Employment
Employment Equity
Equity (EE)
(EE)
Conference Board Report:
Many employers recognize employment equity as a key
element for corporate success
Employment Equity is most effective when tied to
business strategy
Employment Equity is now recognized worldwide as a
uniquely Canadian tool for efficient use of scarce skilled
human resources, and is increasingly being imitated by
advanced industrialized countries

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Employment
Employment Equity
Equity (EE)
(EE)
Advantages of embracing Employment
Equity for employers includes:
enhanced innovation, improved
competitiveness and improved access
to new markets
help in creating tolerance for diversity in
organizational culture
improved corporate image
enhances recruitment efforts
increases employee commitment
Copyright 2008 by Nelson, a division of Thomson

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Employment
Employment Equity
Equity (EE)
(EE)
Establishing an Employment Equity Plan:
To demonstrate reasonable effort employers
must:
1. Create organizational commitment and
structure for an Employment Equity program.
2. Develop mechanisms to consult and
collaborate with employee representatives.
3. Conduct a workforce survey and undertake a
workforce analysis.

Copyright 2008 by Nelson, a division of Thomson

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Employment
Employment Equity
Equity (EE)
(EE)
4. Review employment systems if under
representation exists.
5. Develop and implement an EE plan to address
any inequities discovered through workforce
analysis and employment systems review.
6. Monitor implementation of the plan. Review
and revise as necessary.

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Employment
Employment Equity
Equity (EE)
(EE)
Glass Ceiling
Discriminatory practices that have prevented
women and other designated group members
from advancing to executive level jobs.

Glass Walls and Glass Elevator

Over time, women tended to advance to
senior positions, but only in a limited number
of functional areas such as human resources
or corporate communications.

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Employment
Employment Equity
Equity (EE)
(EE)

Breaking the Glass

Practical steps employers can take to break down the
glass ceiling, walls and elevators that still hold women
and other members of designated groups back from
real advancement, such as:
creating mentoring programs and career rotation opportunities;
increasing representation in top management and on Boards of
Directors;
allowing for work/family balance, etc.

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Pay
Pay Equity
Equity
Pay Equity
The right to equal pay for work of equal

value.
Pay

equity legislation was enacted in 1987 to

address the historical wage gap that exists
between men and women.
The current wage gap in Canada is 71% and
widens when race and ethnic background are
considered.

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Pay
Pay Equity
Equity
Equal pay for Equal Work
Addresses overt discrimination in wages through direct
comparison of jobs occupied by different genders though
the jobs are basically the same.
Example: male and female professors

Equal Pay for Work of Equal Value

Aims to reduce the wage gap by comparing jobs of a
different nature that are considered male or female
jobs.
Example: nurses vs. mechanics

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Managing
Managing Diversity
Diversity

Indicators of
Diversity

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Fig. 3-8

Various Approaches to Diversity and Their Results

Ignore Diversity

Begin the Process

of Dealing with
Diversity

Build Acceptance
of Diversity

Status quo is
protected
Possible legal
issues are
increased
Diversity is not
important

Diversity
training is
provided
Employment
Equity
compliance
occurs
Designated
group members
are a focus
Conflicts and
problems occur

Diversity pays off

for company
Conflicts are
reduced
Internal problem
solving takes
place

Copyright 2008 by Nelson, a division of Thomson

Fig. 3-9

Solve Diversity
Issues and
Create an
Inclusive Culture
Diversity
permeates the
company
Problems are
approached
pro-actively
Everyone gets
along
Business results
improve

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Managing
Managing Diversity
Diversity
The Business Case:
Diversity allows new talent and new ideas from
employees of diverse backgrounds.
Diversity helps recruiting and retention and increases
market share, as people and customers prefer to work
and buy from others like themselves.
Diversity leads to lower costs due to fewer lawsuits

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Common Diversity Management

Components
Fig. 3-11

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Managing
Managing Diversity
Diversity
Diversity Training
Intended to minimize discrimination and harassment
lawsuits, and to improve acceptance and understanding
of people with different backgrounds, experiences,
capabilities and lifestyles.
Often includes three components:

legal awareness
cultural awareness
sensitivity training

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Managing
Managing Diversity
Diversity
Mixed reviews about diversity training exist.
Some argue that:

1. Diversity training tends to draw attention to

differences, building walls rather than breaking
them down.
2. Diversity training content is politically correct,
blaming majority individuals, especially white males
for past wrongs.
3. Diversity training does not reduce discrimination
and harassment complaints, and has not taught the
behaviours needed for employees to get along in a
diverse workplace.
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Managing
Managing Diversity
Diversity
Backlash against diversity efforts:
Members of designated groups see diversity
efforts as inadequate and simply corporate
public relations.
White males and others not part of
designated groups believe diversity sets
them up to be blamed for societal problems
created by diversity.

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