© 2011 by nelson education ltd. 3. canada’s legal framework distinct and complex. comprised of...

LEGAL ENVIRONMENT OF EQUAL EMPLOYMENT AND DIVERSITY

© 2011 by Nelson Education Ltd.

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CANADA’S LEGAL ENVIRONMENT

Canada’s Legal Framework Distinct and complex. Comprised of two sets of laws governing workers

in federal or provincial and territorial sectors of the country: 10% of Canadian workforce (federal sector)◦ Canada Labour Code ◦ Canadian Human Rights Act

90% of workforce (remaining non-federal sectors)

◦ Provincial Legislation◦ Territorial LegislationCopyright © 2008 by Nelson, a division of Thomson Canada

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WHICH ACTS COVER WHICH SECTOR?

Provincial Employment

Standards Act, 2000

Occupational Health & Safety Act

Labour Relations Act, 1995

Copyright © 2008 by Nelson, a division of Thomson Canada Limited. 3 - 3

Federal Canada Labour

Code CLC, Part 1 –

Industrial Relations

CLC, Part 2, Health & Safety

CLC, Part 3 – Employment Standards

CANADA’S LEGAL ENVIRONMENT


CANADIAN CHARTER OF RIGHTS AND FREEDOMS Federal law enacted in 1982 guaranteeing

the rights and freedoms of all Canadians Part of the Canadian Constitution (1982).

A set of laws containing the basic rules for how Canada operates.

Challenges to both the Charter and theConstitution are handled in the courts.

CHARTER OF RIGHTS AND FREEDOMS Fundamental freedoms guaranteed:

Freedom of conscience and religion Freedom of thought, belief, opinion and

expression (including freedom of the press and other media of communication)

Freedom of peaceful assembly; and Freedom of association

Other rights protected by the Charter: Mobility rights, legal rights, equality rights,

official language and minority language education rights, and rights of Aboriginal peoples of Canada.


CHARTER OF RIGHTS AND FREEDOMS Section 33 – “the

notwithstanding clause”Under “the notwithstanding clause”, Parliament or a legislature can pass a law that is exempt from certain sections of the Charter (i.e. the fundamental freedoms, the legal rights or the equality rights.)Used very rarely

Example: Quebec Government passed laws requiring signs to be in French only.

Expires after five years.Copyright © 2008 by Nelson, a division of Thomson Canada Limited. 3 - 6

HUMAN RIGHTS

Canadian Human Rights Legislation human rights acts or codes legislated to prohibit

discrimination on various grounds with respect to employment, provision of goods, services and facilities normally available to the public, and accommodation.

Two types of legislation:Canadian Human Rights Act

covers federally regulated employees who are 10% of Canadian workforce

Provincial and Territorial Human Rights Legislation covers non-federally regulated employees (remaining

90% of workforce)

Copyright © 2008 by Nelson, a division of Thomson Canada

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WHAT IS DISCRIMINATION?

Discrimination is any practice or standard that, intentionally or not, has the effect of limiting the opportunities available to certain individuals or groups because of shared personal characteristics such as race or colour, in a way that perpetuates the view that they are less capable, or are less worthy of recognition or value.

- New Brunswick Human Rights Commission


TYPES OF DISCRIMINATION Direct Discrimination:

◦ occurs when people are treated differently (usually less favourably) based on a prohibited ground.

Indirect/Constructive/Adverse or Systemic Discrimination: ◦ occurs when people are treated

differently (usually less favourably) as a result of a seemingly neutral policy or practice.


PROHIBITED GROUNDS OF DISCRIMINATION


RACE

RELIGION

AGE

SEX

DISABILITY

SEXUAL ORIENTATION

MARITAL STATUS

FAMILY STATUS

NATIONAL/ETHNIC ORIGIN

CONVICTIONS ((PARDONS NOT GRANTED)

EMPLOYER REQUIREMENTS

Bona Fide Occupational Requirement (BFOR/Q = qualification)a justifiable reason for discriminating

against a member of a designated group. Duty to Accommodate:

an employer’s legal duty to take reasonable steps, in policies or conditions of work, to accommodate an employee’s individual needs.


HARASSMENT


Harassment: “…any unwanted physical or verbal conduct that offends or humiliates you. Such conduct can interfere with your ability to do a job or obtain a service.” (Canadian Human Rights Code)

HARASSMENT

Harassment is a type of discrimination that takes many forms: Threats, intimidation or verbal abuseUnwelcome remarks or jokesDisplay of sexist, racist or other offensive

pictures/postersSexually suggestive remarks or gestures Inappropriate physical contact (touching,

pinching etc.)Leering or whistlingOutright demands for sexual favoursPhysical assault (including sexual assault)Copyright © 2008 by Nelson, a division of Thomson Canada

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HARASSMENT Sexual Harassment

unwanted, often coercive, sexual behaviour directed by one person towards another. Can be emotionally abusive and creates an unhealthy, unproductive work environment.

Most frequent complaint received by human rights agencies.

Most costly for employers without effective policies, or who fail to treat such complaints from employees, customers and/or clients seriously.


SEXUAL HARASSMENT Consensual Relationships and

Workplace Romance Survey: 63% of Canadians have had a workplace romance

Creates Employer Dilemma: monitor workplace relationships and risk

“meddling” in employee’s private lives? ignore such relationships and risk the potential

problems they present?


SEXUAL HARASSMENTElectronic Sexual Harassment Cyber sexual harassment is a growing

concern that occurs in a variety of forms:

Forwarding e-mail jokes with sexual content

Sending e-mails pestering another employee for a date

Accessing pornographic web sites at work and sharing content with other employees


SEXUAL HARASSMENT Employer actions to stop electronic

sexual harassment:Adopt “zero tolerance” policies, whereby

disciplinary action occurs regardless of proclaimed innocence of the employee.

Train all employees on sexual harassment and electronic usage policies.

Equip e-mail systems and Web sites with scanners to screen for inappropriate words and images and flag offending employees for disciplinary action.


SEXUAL HARASSMENTTwo basic types of sexual

harassment:Quid pro quo:

Sexual harassment in which employment outcomes are linked to the individual granting sexual favours.

Hostile Environment:Sexual harassment in which an individual’s work performance or psychological well-being is unreasonably affected by intimidating or offensive working conditions.


SEXUAL HARASSMENT

90% of all women working outside the home will experience sexual harassment at some point in their working lives.

49% of women in the workforce have experienced at least one type of unwanted sexual attention.

Only 4 of every 10 Canadian women who suffers sexual harassment at work will take any formal action.

Only 1 out of every 2 women believe a complain would be taken seriously in their workplace.Copyright © 2008 by Nelson, a division of Thomson Canada

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OTHER LEGISLATION

The Canada Labour Code: -- governs workplace for industries with federal jurisdiction, and regulates labour standards and occupational health and safety.

Employment Standards Act: -- minimum, non- negotiable standards of employment required by law. No one can “contract” out of these standards.-- designed to protect workers from possible exploitation through unregulated labour markets.


OTHER LEGISLATIONOccupational Health and Safety (OH&S) legislation that outlines the general rights and

responsibilities of the employer, the supervisor and the worker.

all employee have three basic rights with respect to Occupation Health and Safety:

The Right to Know (e.g. WHMIS) The Right to Participate (Health and Safety Committees) The Right to Refuse Dangerous Work

Labour Relations Legislation: governs collective bargaining and industrial

relations among employers, their unionized employees and trade unions.


EMPLOYMENT EQUITY AND PAY EQUITY Two Separate Pieces of Legislation

◦ Employment Equity (EE) addresses discrimination in employment,

especially where designated groups are concerned

◦ Pay Equity addresses historical wage gaps between

femalesand males doing the same or comparable work


EMPLOYMENT EQUITY (EE) The Employment Equity Act

(1986) passed to achieve equality in the workplace

and to correct conditions that create barriers to employment for members of designated groups and established the need for accommodation of differences. Highlights included LEEP and FCP.

The Employment Equity Act (1995) replaced 1986 act and strengthened

legislation by covering private sector employers under federal jurisdiction, as well as federal government employees. Copyright © 2008 by Nelson, a division of Thomson Canada

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EMPLOYMENT EQUITY (EE)

Employer Requirements: Employers are required to develop and

implement EE plans and programs, and to report to HRSDC annually on their progress in achieving a representative workforce for the four designated groups:

Aboriginal people Persons with disabilities Visible minorities Women


EMPLOYMENT EQUITY (EE) Advantages of embracing Employment Equity for employers includes:◦ enhanced innovation, improved

competitiveness and improved access to new markets

◦ help in creating tolerance for diversity in organizational culture

◦ improved corporate image◦ enhances recruitment efforts◦ increases employee commitment Copyright © 2008 by Nelson, a division of Thomson Canada

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EMPLOYMENT EQUITY (EE)Establishing an Employment Equity

Plan: To demonstrate “reasonable effort”

employers must:1. Create organizational commitment

and structure for an Employment Equity program.

2. Develop mechanisms to consult and collaborate with employee representatives.

3. Conduct a workforce survey and undertake a workforce analysis.Copyright © 2008 by Nelson, a division of Thomson Canada

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4. Review employment systems if under representation exists.

5. Develop and implement an EE plan to address any inequities discovered through workforce analysis and employment systems review.

6. Monitor implementation of the plan. Review and revise as necessary.



Glass Ceiling ◦ Discriminatory practices that have

prevented women and other designated group members from advancing to executive level jobs.

Glass Walls and Glass Elevator◦ Over time, women tended to advance to

senior positions, but only in a limited number of functional areas such as human resources or corporate communications and for less pay than their male counterparts.



Breaking the Glass Practical steps employers can take to break down

the glass ceiling, walls and elevators that still hold women and other members of designated groups back from real advancement, such as: creating mentoring programs and career rotation

opportunities; increasing representation in top management and on

Boards of Directors; allowing for work/family balance, etc.


PAY EQUITYPay Equity The right to equal pay for work of

equal value. Pay equity legislation was enacted in

1987 to address the historical wage gap that exists between men and women.

The current wage gap in Canada is 71% and widens when race and ethnic background are considered.


PAY EQUITYEqual pay for Equal Work Addresses overt discrimination in wages

through direct comparison of jobs occupied by different genders though the jobs are basically the same. Example: male and female professors

Equal Pay for Work of Equal Value Aims to reduce the wage gap by comparing

jobs of a different nature that are considered “male” or “female” jobs. Example: nurses vs. mechanics


MANAGING DIVERSITY

Indicators of Diversity Fig. 3-8


MANAGING DIVERSITYThe Business Case:

Diversity allows new talent and new ideas from employees of diverse backgrounds.

Diversity helps recruiting and retention and increases market share, as people and customers prefer to work and buy from others “like” themselves.

Diversity leads to lower costs due to fewer lawsuits

Do you feel more comfortable interacting with someone that is similar to you? Why?


MANAGING DIVERSITYDiversity Training Intended to minimize discrimination and

harassment lawsuits, and to improve acceptance and understanding of people with different backgrounds, experiences, capabilities and lifestyles.

Often includes three components: legal awareness cultural awareness sensitivity training


RESOURCES FOR HR PROFESSIONALS Canada Labour Code http://laws-lois.justice.gc.ca/eng/acts/L-2/index.html Employment Standards Act, 2000 http://www.e-laws.gov.on.ca/html/statutes/english/elaws_sta

tutes_00e41_e.htm

Canadian Human Rights Act http://laws-lois.justice.gc.ca/eng/acts/H-6/index.html Workplace Safety and Insurance Act

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_97w16_e.htm


http://laws-lois.justice.gc.ca/eng/acts/L-2/index.html

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_00e41_e.htm

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_00e41_e.htm

http://laws-lois.justice.gc.ca/eng/acts/H-6/index.html



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