Week 3 - Legal Issues

Recruitment and Selection - Week Three: Legal Issues

Group Work

  • Opportunities will be provided to form groups for class activities.

  • Instructor will facilitate group formation.

  • Students encouraged to connect with each other via the discussion forum.

Overview of Legal Issues in Recruitment and Selection

  • Focuses on federal level legal issues.

  • Canadian practices tend to mirror U.S. guidelines.

  • Key areas of Canadian employment law:

    • Constitutional Law

    • Human Rights Legislation

    • Employment Equity

    • Labor Law

Four Legal Means in Canada

  1. Constitutional Law

    • Known as the supreme law of Canada, it dictates the overarching framework for laws and cannot be violated.

    • Significant impact on employment practices stemming from the British North America Act and the Constitution Act of 1982.

    • The Canadian Charter of Rights and Freedoms is crucial regarding employment and must be adhered to in letter and spirit.

    • Key excerpt from the Charter:

      • “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, particularly based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability.”

    • Subsection clarification:

      • Allows programs aimed at improving conditions for disadvantaged groups without violating this equality clause.

  2. Human Rights Legislation

    • Prohibits discrimination based on the same protected grounds as constitutional law, applying to employment and services.

    • Individuals must self-police their rights; there is no dedicated entity for monitoring violations.

    • Process for filing complaints:

    1. Address the issue internally with the involved parties.

    2. Seek assistance from the organization's human rights representative.

    3. File a grievance with the company or union.

    4. If unresolved, file a complaint with the Canadian Human Rights Commission.

    • The Commission evaluates and investigates the claim, and may appoint a conciliator. It has the power to mediate and resolve disputes.

    • Complaints can go to a human rights tribunal if unresolved, with both parties allowed legal representation. Tribunals act as courts, hearing evidence and capable of ordering remedies such as financial compensation (for lost wages or damages for suffering) or systemic policy changes.

    • Maintaining detailed records and honesty is crucial during this process to demonstrate good faith.

  3. Employment Equity

    • Response to affirmative action, promoting workplace diversity and retaining employees from diverse backgrounds.

    • Objective: To ensure employment opportunities focus on merit while addressing systemic discrimination. Systemic discrimination refers to often unintentional biases embedded in organizational policies, practices, and culture that disadvantage certain groups.

    • Employment equity requires not only hiring diverse individuals but also ensuring their success and retention in the workplace.

    • The Employment Equity Act aims to remove barriers faced by designated groups, including women, Indigenous peoples, persons with disabilities, and visible minorities. The Act mandates proactive measures to identify and eliminate these barriers and achieve equitable representation.

    • The policy needs to be structured to promote equality, which some may misconstrue as unfair, but our discussions are aimed at clarifying misconceptions.

  4. Labor Law

    • Focuses on union-related issues, impacting job security and wages. Labor law primarily governs the relationships between employers, employees, and trade unions.

    • Covers standards across both unionized and non-unionized employees. While federal labor law applies to a limited number of industries (e.g., banking, interprovincial transportation), the majority of employees fall under provincial labor legislation.

    • These provincial laws dictate essential employment standards, including minimum wages, vacation entitlements, hours of work, and termination notice.

    • Important legal concepts for this course include:

      • Direct Discrimination - Explicitly excluding individuals from employment based on protected characteristics. This discrimination is easily identifiable and often involves clear, overt rules or policies that explicitly differentiate based on a protected ground.

      • Adverse Effect Discrimination - Indirect discrimination from policies that negatively impact a protected group despite being neutral on the surface. The intent to discriminate is irrelevant; if the effect is discriminatory, it is a violation.

      • Adverse Impact - Statistical significance of lower selection rates in protected groups due to adverse effect discrimination. Illustrated by the four-fifths rule in selection: a selection rate for any protected group that is less than 80% (4/54/5) of the rate for the group with the highest selection may indicate adverse impact.

      • Bona Fide Occupational Requirement (BFOR) - Employers can defend discrimination if the standard is legitimate and necessary for the job. To be considered a BFOR, the requirement must demonstrate a rational connection to the job, be adopted in good faith, and be reasonably necessary to accomplish a legitimate work-related purpose (as per the Meiorin test).

      • Reasonable Accommodation - Employers must accommodate individuals short of undue hardship. This means adapting policies or practices to enable individuals with protected characteristics to perform their job. Factors determining undue hardship include cost, safety, disruption to agreements, and employee morale, but the threshold for