Legal Requirements & Diversity in Human Resource Management

Legal Requirements & Diversity

Enactment: 1982
Amendment/Repeal: Can only be changed by an act of Parliament consented to by at least 2/3 of the provinces, representing at least 50% of the population.
Purpose: Guarantees fundamental rights.
Key Rights for HRM:
- Right to live and seek employment anywhere in Canada.
- Freedom of thought, belief, opinion, and expression.
- Equality rights without discrimination based on:
- Race
- Creed
- Colour
- Religion
- Sex
- Age
- National/ethnic origin
- Disability.
- Freedom of association.
Notable Point: No right to own property in the Charter, unlike in the US Constitution and German Basic Law.
Limitations of Charter: Charter rights are not absolute and can be limited by law if “demonstrably justified in a free and democratic society.”
Application: The Charter applies only to federal and provincial governments and their agencies, not individuals.
Supreme Court of Canada: Can review proposed legislation for constitutionality (e.g., same-sex marriage).

Existence: HRL exists at the federal level and in all provinces.
- Federal Level: Canadian Human Rights Act.
- Provincial Level: Example - Saskatchewan Human Rights Code.
Objective: Aims for equal employment opportunity by prohibiting discrimination based on certain grounds.
Consistency Across Jurisdictions: Prohibited grounds are generally uniform, with minor variations.
Most Relevant Grounds in Practice Include:
- Disability
- Age
- Sex
- National/ethnic origin
- Race
HRL Importance: Fundamental to various HR disciplines such as hiring, promotions, compensation, and terminations.
Clarification on Discrimination: HRL does not prohibit discrimination based on performance, seniority, experience, education, etc.
Legal Proceedings: Cases are heard by Human Rights Commissions or Tribunals, not traditional courts.

Direct Discrimination: Treating an employee less fairly than others based on a prohibited ground.
Indirect Discrimination (Systemic): Unintentional discrimination, where workplace policies discriminate against employees.
Reverse Discrimination: Treating a member of a protected group more favourably than another employee.
Examples of Indirect Discrimination:
- Providing mental health support only to employees aged 40 and above.
- Requiring the ability to lift 50lbs for a job where it's not essential, thus excluding women unable to lift.
- Promoting a woman over an equally qualified man to increase women's representation in management.
Bona Fide Occupational Requirement (BFOR): Discrimination is permissible if it is for a valid occupational requirement (e.g., requiring a female actress for a role).

Sex:
- Issues like physical requirements (e.g., height, weight).
- Concepts such as the glass ceiling and old boys' networks.
Religion:
- Time off for religious observances during working hours.
- Provision of dedicated spaces for religious practices.
National/Ethnic Origin:
- Discrimination based on names or linguistic backgrounds, regardless of fluency in official languages.

Age:
- Implementation of phased-in retirement.
- No mandatory retirement policies.
- Physical workplace adaptations for older workers.
Disability:
- Frequently invoked grounds, with an increasing focus on mental health issues and addiction.
Sexual Orientation:
- Recognition of same-sex partners as spouses.
- Considerations for benefit coverage and related costs.

Context of Accommodation: Often arises for scheduling conflicts between work and religious duties or for employees with disabilities.
Responsible Parties: This duty applies to employers and, if relevant, unions.
Union Involvement: May require union consent depending on solutions proposed.
Multi-party Task: The search for suitable accommodation requires collaboration.
Reasonable Accommodation: Employees must accept reasonable accommodation, no entitlement to “perfect” accommodation.
Impact of Employee Conduct: The employee's actions can impact the fulfillment of accommodation duties by employers.
Discharge of Duty: If employees refuse reasonable accommodation, the employer’s duty may be considered fulfilled.
Factors Defining Undue Hardship:
- Costs to the employer.
- Impact on co-workers.
- Effects on operations.
- Size of the employer.
- Implications on any existing collective bargaining agreements (CBA).
- Health and safety considerations.

Oversight Bodies:
- Canadian Human Rights Commission (CHRC) for federal jurisdiction.
- Saskatchewan Human Rights Commission (SHRC) for provincial jurisdiction.
Dispute Resolution Facilitation: HR Commissions help to resolve disputes through mediation.
Tribunal Referrals: If resolution fails, cases are referred to CHRT or court processes by CHRC or SHRC, respectively.
Complaint-based Enforcement: Enforcement relies on complaints; lack thereof means no consequences.
Prohibited Retaliation: Retaliation against employees filing complaints is forbidden and can lead to fines.

Common Remedies Include:
- Reinstatement of employment.
- Compensation for lost wages and benefits.
- Issuance of an apology by the employer.
- Cessation of discriminatory practices.
- Compensation for suffering endured as a result of discrimination.

Current Hot Topics:
- Drug Testing:
- Should random drug testing be permitted?
- Should restrictions apply only to safety-sensitive roles?
- Comparisons between drug testing and alcohol testing.
- Disclosure requirements for past addiction issues.
- Privacy Concerns at Work:
- Employee privacy on employer-owned devices.
- Use of CCTV in the workplace.
- Monitoring employees through software.
- Balancing Freedoms and Interests:
- Employee freedom of expression vs. employer reputation management.
- Guidelines for off-duty social media use and potential employment consequences.