The Changing Legal
The Legal Framework for
Employment Law in Canada
GOVERNMENTAL LEGAL FRAMEWORKS
IMPACT ON HUMAN RESOURCES
Government – Federal & Provincial Laws
Regulatory Bodies: Commissions/Boards/Tribunals
â€¢ Stay current on laws, interpretation of the laws, &
â€¢ Develop & administer programs to ensure
â€¢ Obtain, maintain and retain optimal workers
Hierarchy of Employment Legislation in Canada:
â€¢ Government sets legislation
Provincial/territorial employment laws
â€¢ all other employers (90% of Canadian workers)
Frameworks to abide by
Frameworks to abide by
â€¢ Canadian Charter of Rights & Freedoms – guarantees equal
rights before the law
â€¢ Human Rights Act – equal employment opportunity without
regard to race, national/ethnic origin, colour, religion, age, sex,
sexual orientation, marital status, family status, disability, or
â€¢ Employment Equity – remove employment barriers and
promote equality for four designated groups: women, persons
with a disability, Aboriginal people, and members of a visible
â€¢ Pay Equity – Equal pay for equal work, regardless of sex
â€¢ Collective Bargaining Agreement
â€¢ Employment Contract
Legislation Protecting the General
â€¢ Tort Law
â€¢ Primarily Judge-based
â€¢ precedent and jurisprudences set by one judge through his or her
assessment of a case
â€¢ establishes how similar cases will be interpreted.
â€¢ Intentional â€“ assault, battery, trespass.
â€¢ Unintentional â€“ negligence caused by carelessness
â€¢ The Canadian Charter of Rights and Freedoms
â€¢ Equality Rights (section 15)- right to equal protection and benefit of
the law without discrimination
â€¢ freedom of conscience and religion
â€¢ freedom of thought, belief, expression and opinion
â€¢ freedom of peaceful assembly
â€¢ freedom of association
Legislation Protecting the General
CANADIAN HUMAN RIGHTS ACT
â€¢ Equal employment opportunity without regard to minority
â€¢ Act applies to all federal government department & agencies,
crown corporations and organizations under federal jurisdictions
(banks, airlines, etc.)
â€¢ Organizations not under federal jurisdiction must oblige
to provincial human rights laws
â€¢ Provincial laws very similar to federal laws
Legislation Protecting the
CANADIAN HUMAN RIGHTS ACT
â€¢ Prohibits discrimination: a distinction, exclusion or
preference based on one of the prohibited grounds that
has the effect of nullifying or impairing the right of a
person to fully and equal recognition and exercise of
his/her human rights and freedoms
â€¢ Provides equal employment opportunities for members
of protected groups
â€¢ Bona Fide Occupational Requirement (BFOR)
â€¢ Under certain circumstances intentional, direct discrimination is
â€¢ For example – Can engage in age discrimination at establishments
that serve alcohol where all employees must be over the legal
â€¢ How to determine the appropriateness of a BFOR?
â€¢ Rationale: Is the policy/procedure that resulted in discrimination
based on a legitimate, work related purpose?
â€¢ Good faith: Did the decision makers of the organization honestly
believe that the requirement was necessary to fulfill the
requirements of the role?
â€¢ Reasonable necessity: Was it impossible to accommodate those
who have been discriminated against without imposing undue
hardship on the employer?
Examples of Systematic Discrimination
Requirement for Reasonable Accommodation
â€¢ adjustment of employment policies/practices so that no individual
is denied benefits or is disadvantaged
â€¢ based on prohibited grounds in human rights legislation
â€¢ e.g. work station redesign for wheelchair
â€¢ financial costs make accommodation impossible
â€¢ Basis determined by courts
â€¢ differential treatment
â€¢ enumerated ground (protected by legislation)
â€¢ substantive sense (is burden imposed or benefit withheld?)
â€¢ respect dignity
â€¢ discrimination must be legally defensible
â€¢ most appropriate accommodation should be undertaken
Legislation Protecting the General
â€¢ differential or unequal
â€¢ indirect (3rd party)
â€¢ by association
â€¢ constructive or systemic
â€¢ embedded in policies with
adverse impact on
Indirect discrimination often occurs due to implicit stereotype biases –
making implicit assumptions about someoneâ€™s personality, ability, or
skills based on the social group to which they belong (Outcomes are
often the same).
â€¢ maximum height/weight requirements
â€¢ limited accessibility to company premises
â€¢ job evaluation systems that are not genderneutral
â€¢ lack of a harassment policy or guidelines
Types of Complaints Received by the Canadian
Human Rights Commission in 2016
Implicit biases impact on HR practices
â€¢ Ethnicity/Nationality: Identical resumes, half with traditionally
African American names (e.g. Lakisha & Jamal), half with White
sounding names (e.g. Emily & Greg). Resumes with white sounding
names received 30% more callbacks (Bertrand & Mullainthan, 2003);
Similar experiment with Arab sounding names received 50% fewer
callbacks (Derous, Ryan, & Nguyen, 2012)
â€¢ Sexual Orientation: When confederates applied for jobs
(unknowingly) portrayed as homosexual or not, those portraying
homosexuals reported poor interpersonal reactions and less
favourable perspectives that they would get hired. (Hebl, Foster,
Mannix, & Dovidio, 2002)
â€¢ Sex: Women who are ambitious are more likely to be targeted with
interpersonal harassment and workplace aggression (Berdahl, Bai &
Surprising implicit biases impact on HR
â€¢ Weight: As compared to average weight employees,
overweight employees evaluated more negatively, hired less
frequently (Rudolph, Wells, Wellon, & Baltes, 2009), less likely
to be invited to an interview (AgerstrÃ¶m & Rooth, 2011), and
their performance was evaluated as they were less motivated
and had lower work ethic (Shapiro, King, & Quinoeses, 2007)
â€¢ Physical Attractiveness: Across a large meta-analysis, physical
attractiveness is positively associated with hiring, promotion,
and performance evaluations (Hosoda, Romero, & Coats,
â€¢ Height: Positive relationship between height and income
(Judge & Cable, 2004)
Employment Equity Act
â€¢ based on Charter of Rights and Freedoms
â€¢ applies to federally regulated employers only
â€¢ promotes equality, removes employment barriers
â€¢ Four designated groups:
â€¢ Visible minorities
â€¢ Persons with disabilities
â€¢ Aboriginal people
Why Organizations Should Commit to
â€¢ Why bother with diversity management?
â€¢ Labour pool is no longer â€œpale, male, & staleâ€ – Canadian labour
market very diverse
â€¢ Need to retain your talent – knowledge workers particularly
â€¢ Diversity as a competitive advantage – particularly for
â€¢ Increased financial performance – positive relationship
between organizational diversity and book to market equity
(Roberson & Park, 2007), racial diversity and productivity,
return on equity and market performance (Richard, 2000) and
boards with greater gender diversity demonstrate superior
firm performance (Erhardt, Werbel, & Shrader, 2003)
How Organizations can Commit to
â€¢ Senior Management Commitment – focus on all aspects of HR
with respect to diversity
â€¢ Diversity Committee – serves as the link across employees,
management & union. Should reflect all employee groups
â€¢ Education & Retraining – all ranks should receive training
â€¢ Communication of changes – must be communicated
â€¢ Evaluation of Results and Follow Up – keep metrics, conduct
diversity audits, follow up on necessary actions
What do organizations do?
â€¢ Diversity training programs: builds awareness of the
â€¢ diversity and teach employees on how to respond to
â€¢ Mentoring programs & Apprenticeships: formal/informal. Be
careful of counterproductive mentoring with females!
â€¢ Alternate work arrangements: can be used to accommodate
â€¢ Support groups: provide support for those who might feel
â€¢ Communication: formal protocols for communication
procedures to avoid
â€¢ offence (ex – chairperson rather than chairman)
â€¢ â€œUnwelcome behaviour that demeans, humiliates or embarrasses a
person and that a reasonable person should have known would be
â€¢ Humiliating an employee in front of coworkers
â€¢ Written or verbal abuse
â€¢ â€œOffensive or humiliating behaviour that is related to a person’s sex, as
well as behaviour of a sexual nature that creates an intimidating,
unwelcome, hostile, or offensive work environment or that could
reasonably be thought to put sexual conditions on a personâ€™s job or
â€¢ Unwelcome sexual remarks, invitations, or requests
â€¢ Employer Responsibility
â€¢ protect employees from harassment
â€¢ includes harassment by clients or customers
To reduce liability, employers should develop and integrate a
policy that includes:
1. a clear workplace anti-harassment policy statement
2. information for victims (definitions, examples)
3. employeesâ€™ rights and responsibilities
4. employersâ€™ and managersâ€™ responsibilities
5. anti-harassment policy procedures
6. penalties for retaliation against a complainant
7. guidelines for appeals
8. other options such as union grievance procedures and human
9. how the policy will be monitored and adjusted
Employment Labour Standards
â€¢ laws present in every Canadian jurisdiction that
establish minimum employee entitlements and
set a limit on the maximum number of hours of
work permitted per day a week
â€¢ establish minimum terms for:
â€¢ Wages, paid holidays, maternity/paternity
â€¢ complaints filed with ministry of labour or
Privacy: A Double-edged Sword
â€¢ Employer has right to prevent liability to the company
â€¢ eliminate time wasted on personal matters
â€¢ prevent abuse of company resources
â€¢ Employees have right to:
â€¢ control over information about themselves
â€¢ freedom from interference in their personal life
â€¢ Internet/Email/Phone Usage?
â€¢ Video Surveillance?
Respecting Employee Privacy
â€¢ Respecting Employee Privacy:
â€¢ Personal Information Protection and Electronic
Documents Act (PIPEDA):
â€¢ Law governs collection, use, and disclosure of personal
â€¢ Employers must get consent from employees when
information is collected.
â€¢ Electronic monitor of employees is permitted.
â€¢ Employers should have written policy.
Respecting Employee Privacy
â€¢ Respecting Employee Privacy:
â€¢ Video Surveillance:
â€¢ Monitor productivity.
â€¢ Prevent employee theft and vandalism.
â€¢ Employees must be made aware.
â€¢ Not advised if reasonable alternatives exist.
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