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Legal Requirements in HRMWeek 1 (cont.)

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Dr. Teal McAteer-Early

Michael G. 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– 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:– 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

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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 minorities

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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 abilities need 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 Tribunal1. 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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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

• May occur at various stages– Early settlement, conciliation agreement, or tribunal

decision

• Could include:– 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:– 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– $7.15 as of Feb 1, 2004; $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 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 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 (week 12)– Discipline, termination, etc.

• Organizing unions and collective bargaining (week 13)– Canada Labour Code

• Health and Safety (week 11)– Health and safety laws, worker’s compensation

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Questions / Comments ?