Week 9 - Human rights at work

Common law and discrimination

Under common law, employment is seen as a private contract between employer and employee (freedom of contract)

• This system doesnt prevent employers from choosing workers based on any criteria, including race, gender, religion, etc

• Ex: an employer could say “i only hire men” and this would not violate contract law

Human rights law and discrimination

The government has enacted human rights legislation to prohibit the contract freedom of discrimination.

• Human rights legislation has been enacted in every Canadian jurisdiction governing discrimination in various spheres of life, including employment

4 common features of the canadian human rights model

1. Anti-discrimination provisions apply to the entire lifespan of the employment relationship

2. Human rights commissions

3. The process for filing, investigating, and litigating human rights complaints

4. The remedial powers of human rights tribunals

Anti-discrimination provisions applying to the entire lifespan of the employment relationship

Anti-discrimination provisions apply to the entire lifespan of the employment relationship, including job postings, interviews, hiring, conditions of employment, promotion, and termination

• Section 14 prohibits employers from refusing to hire, continue employment, or discriminate any term of employment based on a ground of discrimination

• Includes provisions on job ads, bona fide occupational requirements, interview questions, and religion

Discriminatory job ads

The human rights legislation prohibits job ads that directly or indirectly classify as discrimination

• The BC human rights code similarly prohibits discriminatory job ads but also creates an expressed exception when the discriminatory preference is listed as a bona fide occupational requirement (this is a human rights defence)

• Ex: An employer that advertised for a “young apprentice” on the basis that the job required heavy lifting violated this section and was ordered to pay a 40-year-old complainant $2,500 in damages for injury to dignity, feelings, and self-respect. 

  • The exemption would be where there is evidence that the limitation, specification or preference is based on a bona fide occupational requirement.

Bona fide occupational requirement

A legal exception to anti-discrimination rules when the employer proves that the requirement is genuinely necessary for the job

Discriminatory interview questions

Employers cannot ask questions about personal characteristics during interviews

• This includes questions about age, ethnicity, religion, marital status, etc

• This still applies even if it is indirect

• In BC, you can ask these questions as the question itself is not automatically considered prohibited, but it may be found discriminatory depending on the context (discriminatory motive is not required, but what matters is the effect)

Religious exceptions in hiring

Sometimes it is lawful for employers to ask questions about prohibited grounds, as the human rights statute creates an exception that permits those questions

• Ex: religious institutions are allowed to give hiring preferences to people who adhere to that religion

• While this is true in this case, most employers would be breaking the law by asking applicants about their religion

Human rights commissions

Public agencies established by governments to promote compliance with human rights legislation and the abolition of illegal discrimination through education, public outreach, and training.

• Exist everywhere except BC and Nunavut

• Investigate and sometimes settle human rights complaints.

The process for filing, investigating, and litigating human rights complaints

The canadian human rights statutes are primarily complaint-based, so in most provinces the process is:

1. A victim files a complaint with the human rights commission

2. The commission investigates the facts

3. The commission decides whether the case should proceed to a tribunal hearing (acts as a gatekeeper)

4. The commission may act as a litigant representing the complainant at a tribunal

• This applies to most canadian jurisdictions, except BC, Ontario, and Nunavut

• The complaint can also be on behalf of the victim by the human rights commission

The remedial powers of human rights tribunals

Human rights tribunals have the authority to order the following types of remedies:

• Compensatory (or pecuniary) damages.

• General damages.

• Reinstatement and hiring orders.

• Broader-based remedial orders e.g., mandatory human rights training and, in some jurisdictions (Federal, BC, Manitoba, Saskatchewan, and Nunavut), mandatory hiring quotas. 

Limits on raising human rights complaints in multiple legal forums

Sometimes, a single wrongful act by an employer could give rise to a human rights complaint (under statute) and a civil lawsuit (under breach of contract or tort)

• A worker cannot pursue both. This avoids “forum shopping”, meaning picking the venue most likely to succeed or give more compensation

• The exception is if they allege more than just a human rights violation, such as a breach of a “no harassment” clause in their employment contract, or a tort (such as intentional infliction of mental suffering). In this case, the court will hear the case even if it overlaps with a human rights issue. The employee must not rely exclusively on human rights legislation.

Direct discrimination

A rule, standard, or practice that distinguishes (treats someone differently) based on a personal characteristic

• Also known as adverse or disparate treatment

Indirect discrimination

A rule, standard, or practice that treats everyone the same on its face, yet has an adverse impact on some people because of a personal characteristic

• Also known as adverse or disparate impact

• Both types of discrimination are prohibited, and intention is not required

• In cases of indirect discrimination, the onus shifts to the employer to demonstrate that the rule is rationally connected to the performance of the job, and that it cannot accommodate the employees situation without suffering “undue hardship”

Central Alberta Dairy Pool v. Alberta (human rights commission)

• Christie became a member of the Worldwide Church of God during his employment with Central Alberta Dairy Pool. He requested to be absent on days that conflicted with the religion’s Sabbath, and the employer granted some of these requests. However, the employer refused to give Christie Easter Monday off because operational needs required employees to be at work that day. When Christie did not report to work on Easter Monday, he was fired.

• He filed a complaint under Alberta’s human rights statute alleging discrimination on the basis of religion. The human rights tribunal found a violation of the statute and ordered the employer to pay partial lost wages. The employer appealed, and the case eventually made it before the Supreme Court of Canada.

• The court ruled that the employers refusal to grant Christie the day off constituted indirect discrimination

2 step human rights analysis in employment

Employers are free to make distinctions on all sorts of grounds when assessing job applicants, hiring and firing, or job-related benefits. Human rights law is only concerned with discrimination that is based upon grounds.

However, sometimes human rights legislation permits discrimination on a prohibited ground, so to know whether discrimination is unlawful, a 2 step analysis is used when dealing with complaints:

1. Assessing whether the employer has discriminated based on a prohibited ground (must establish on a “balance of probabilities” a prima facie case of discrimination

2. Is that discrimination permitted by a statutory defence or an exception in the human rights statute?

Prima facie case of discrimination

When assessing question 1 of the model for human rights analysis, human rights tribunals and courts require that the complainant establish on a balance of probabilities a prima facie case of discrimination.

This means:

1. That the complainant has a characteristic that is protected by a prohibited ground in the human rights legislation

2. That they have experienced an adverse impact

3. That the protected characteristic was at least a factor in the adverse impact (it does not have to be the only factor)

Prohibited grounds of discrimination (Canadian human rights act)

Race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

• Often human rights statutes do not define the prohibited grounds, this falls to tribunals and courts to develop the meaning of those grounds through case law

Prohibited grounds of discrimination (NL human rights act)

Race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability, disfigurement, sex, sexual orientation, gender identity, gender expression, marital status, family status, source of income and political opinion.

• Does not include record of offence and ancestry

• Includes disfigurement

Prohibited grounds for discrimination - disability

Mental and physical disability is the most frequently raised in human rights complaints

• Requires substantial ongoing limits on ones activities, does not include temporary impairments

• Prohibition also applies to perceived and past disability

• Substance addiction is included within the meaning of disability

Prohibited grounds for discrimination - sex

Includes treating employees of one sex less favourably, physical touching, sexual solicitation, and conduct or words of sexual nature

• The requirement is that the conduct is “unwelcome” and “detrimental”

• There are issues with systemic discrimination against women

• To prove systemic discrimination, a complaint usually needs to present aggregate evidence of barriers faced by women in an organization

Prohibited grounds of discrimination - race, color, ethnic origin, ancestry

These are all distinct, but in many cases intersect in a single episode of discriminatory conduct

• Can take the form of offensive comments, harassment, jokes, graffiti, social media communications

Prohibited grounds of discrimination - age

Often seen as the exclusion of workers age 65 and older

• Ongoing and complex policy tensions regarding age discrimination

Prohibited grounds of discrimination - religion or creed

A sincerely held belief (does not need to be tied to a formal religion)

• Simply holding a political opinion does not automatically qualify for protection, unless it is part of a broader, cohesive life philosophy akin to religion

Prohibited grounds for discrimination - marital status, family status

Does not just include the status of the employee but also the particular identity of the employees spouse or family member

• Includes the johnstone test

The johnstone test in family status discrimination

To prove family status discrimination due to childcare responsibilities, an employee must show:

1. A child is under their care and supervision

2. They have a legal obligation to provide care

3. Efforts were made by the employee to self-accomodate

4. The workplace rule interferes with the fulfillment of that duty in a serious way

Prohibited grounds for discrimination - sexual orientation, gender identity, gender expression

Discrimination against someone because they are LGBT, or perceived to be so, also includes gender identity and expression

Prohibited grounds for discrimination - citizenship and nationality

The employer may not give preference to canadian citizens

Prohibited grounds for discrimination - political opinion or belief

Not protected in every jurisdiction, tribunals have applied a broad scope where it is protected

Prohibited grounds for discrimination - language

Only prohibited in Quebec, and in Yukon; “linguistic background or origin”

• Employers may use a language requirement as a cover for discriminatory practices based on race, ethnicity, etc

Prohibited grounds for discrimination -source of income, social condition, or receipt of public assistance

Reasons related to social conditions that often attract social stigma

Bona fide occupational requirement (BFOR) defence

The right to not be discriminated against is not absolute, human rights statutes attempt to balance potentially competing rights

• This defence permits discrimination on a prohibited ground when that discrimination is based on an honest or good faith belief that it is necessary for a legitimate business reason

Statutory defences/exemptions for prohibited grounds

• Bona fide occupational requirement (still have a duty to accommodate)

• Special interest organization

• Nepotism

• Personal care attendant defence, homeworker defence, domestic worker defence

• Bona fide pension or insurance plan

• Special program

Certain legal conditions must be met to justify these

British Columbia v. BCGSEU

• Meiorin was hired as a firefighter in 1992 by the British Columbia Ministry of Forests and performed well in her first couple of years on the job. In 1994, the BC government introduced new aerobic fitness standards for firefighters and required all employees to take a fitness test. Meiorin passed three of the tests but was unable to meet a fourth test standard that required running 2.5 kilometres in 11 minutes. She was 49 seconds late. She was fired for failing to meet the standard.

• She filed a grievance, and her union argued before an arbitrator that the standard was discriminatory against women because women were much less likely to be able to meet the standard. Evidence bore this out: 65 to 70 percent of men passed the test compared with only 35 percent of women. The Arbitration Tribunal ruled that the aerobic standard discriminated against women and ordered Meiorin to be reinstated to her job. That ruling was overturned by the British Columbia Court of Appeal, and the case came before the Supreme Court of Canada.

• It was found that the fitness standard did discriminate against women, and that it was not justified as a bona fide occupational requirement

• This case is the leading decision on the accommodation of women in the workplace, but also the development of workplace measures for all duties to accommodate

Meiorin test for the BFOR

A test used to decide whether a workplace standard that is prima facie discriminatory (either directly or indirectly) justifies as a BFOR

1. That the employer adopted the standard for a purpose that is rationally connected to the performance of the job

2. That the employer adopted the standard in an honest and good-faith belief that was necessary to the fulfillment of that purpose

3. The standard is reasonably necessary to the accomplishment of that legitimate purpose, which requires the demonstration that it is impossible to accommodate the employee without imposing undue hardship on the employer

Objective component of meiorin test

Asks: was the standard truly necessary to achieve a legitimate business-related objective?

• Steps 1 and 3

Subjective component of meiorin test

Examines the employers motive and state of mind when it adopted the standard

• Step 2

Duty to accommodate

The most litigated issue in human rights law, and employers must follow these objectives in the workplace

• Removing barriers.

• Eradicating prejudices and stereotypes.

• Ending discrimination in all its forms.

• Broadening opportunities.

• Enhancing diversity and dignity.

• Entrenching equality at work.

Employers must proactively remove barriers to employees’ equal participation in the workplace

Undue hardship

Recognizes that some hardship is anticipated

There are 6 factors to consider:

• Safety.

• Size of the employer’s operations.

• Employee morale.

• Interchangeability of the workforce and facilities.

• Cost.

• Infringement of a collective agreement.

The duty to accommodate disabilities

Accommodations for employees with disabilities take many forms as there are distinct disabilities

• Challenges for accommodation include: innocent absenteeism, mental disabilities, and employees with addictions