(6) Session 7 - Human Rights Law

The Concept of Equality

  • Equality is complex and contextual.
  • Rooted in political/legal equality:
    • "One person, one vote" principle.
    • Right to equal treatment before the law.
  • First employment-related statute in Saskatchewan was the Bill of Rights Act, 1947, which mandated intent and included fines/imprisonment as sanctions.
  • Section 15 of the Canadian Charter of Rights and Freedoms addresses equality rights.
  • Over time, additional prohibited grounds added to human rights legislation, e.g., sexual orientation; some grounds amended like age.
  • Current framework does not require intent for finding of discrimination.
  • Achieving equality may require different treatment of individuals.
  • Efficacy of law in workplace discrimination remains debated.

Evolving Topics on Equality and Human Rights

  • Includes:
    • Gender identity and expression.
    • Intersectionality.
    • Accommodation of age-related needs.
    • Psychological harassment.
    • Caregiving responsibilities.

Overview: Human Rights Legislation (HRL)

  • Exists at federal and provincial levels:
    • Federal: Canadian Human Rights Act.
    • Provincial: Saskatchewan Human Rights Code.
  • Aims for equal employment by prohibiting discrimination on various grounds.
  • Prohibited grounds are generally uniform, with minor variations across jurisdictions.
  • Most relevant grounds include:
    • Disability
    • Age
    • Sex
    • National/ethnic origin
    • Race
  • HRL is crucial in HR practices (hiring, promotion, compensation, termination).
  • Does not prohibit performance-based discrimination.
  • Cases adjudicated by Human Rights Commissions/Tribunals instead of regular courts.

Prohibited Grounds in Employment (Saskatchewan)

  • Prohibited grounds include:
    • Sex: Issues like the glass ceiling, old boys' networks, physical requirements.
    • Religion: Time off for religious duties; access to facilities.
    • Nationality/Place of Origin/Ancestry: Discrimination based on names or linguistic background.
    • Age: Adaptations for phased retirement and older workers.
    • Disability: Increasingly contentious, including mental illness and addiction issues.
    • Sexual Orientation: Recognition of same-sex partners, benefit coverage.
    • Race: Hiring refusals, racial slurs, discrimination correlated with nationality.
    • Family/Marital Status: Work schedule conflicts related to caregiving responsibilities.

Types of Discrimination

  • Direct Discrimination: Treating an employee unfairly based on a prohibited ground.
  • Indirect (Systemic) Discrimination: Workplace policies unintentionally discriminating against a group.
  • Reverse Discrimination: Favoring a member of a protected group over another employee.
  • Exception: Bona fide occupational requirements (BFOR) are allowed, e.g., hiring a female for a female role in a film.

Legal Enforcement of Human Rights Law (HRL)

  • Federal HRL enforcement by Canadian Human Rights Commission (CHRC).
  • The CHRC facilitates dispute resolution through mediation; unresolved cases go to the Canadian Human Rights Tribunal (CHRT).
  • HRL enforcement is complaint-based. No consequences for unfiled complaints.
  • Retaliation against employees filing complaints is prohibited and incurs fines.

Common Remedies for HRL Violations

  • Reinstatement & compensation for lost wages and benefits.
  • Employer apologies and cessation of discriminatory practices.
  • Compensation for emotional suffering.

Saskatchewan Human Rights Commission Statistics

  • Complaints (April 2023 - March 2024):
    • 522 new complaints received, 507 closed.
    • 79.2% of complaints relate to employment.
    • 60.4% of complaints involve disability discrimination.
    • 24% of claims address multiple prohibited grounds.

The Case of Janzen v. Platy Enterprises Ltd. (1989)

  • Concerned sexual harassment as discrimination based on sex.
  • Facts:
    • Two waitresses faced harassment from a male co-worker despite objections.
    • Complained, leading to retaliation from both the co-worker and management.
    • They quit and filed a claim.
  • Initial ruling favored complainants after appeal to the Supreme Court:
    • Discrimination did not require identical treatment of all affected genders.
    • Defined sexual harassment as unwelcome sexual conduct affecting work.
    • Workplace harassment is deemed an abuse of power.

Takeaways for Employers

  • Workplace harassment is a form of discrimination.
  • Objective tests determine unwanted conduct by a reasonable person's standard.
  • Cultural perceptions may affect interpretations of unwanted conduct in the workplace.