3 - 1 Copyright © 2008 by Nelson, a division of Thomson Canada Limited. Part 2: Staffing the Organization Chapter 3: Legal Environment of Equal Employment

3 - 1 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Part 2: Staffing the OrganizationPart 2: Staffing the OrganizationPart 2: Staffing the OrganizationPart 2: Staffing the Organization

Chapter 3: Legal Environment of Chapter 3: Legal Environment of Equal Employment and DiversityEqual Employment and Diversity

Prepared by Linda Eligh, University of Western Ontario

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

Learning ObjectivesLearning ObjectivesLearning ObjectivesLearning Objectives

After you have read this chapter, you should be able to:

1.Introduce Canada’s legal environment and discuss the Canadian Charter of Rights and Freedoms.

2.Discuss Canadian Human Rights Acts in various jurisdictions and direct and indirect discrimination on prohibited grounds.

3. Introduce the meaning of several prohibited grounds with examples of court challenges.

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Learning ObjectivesLearning ObjectivesLearning ObjectivesLearning Objectives

4. Describe the two types of sexual harassment and how employers should respond to sexual harassment complaints.

5. Discuss the employment standards acts, labour relations legislation, and occupational health and safety, and the requirements of each jurisdiction.

6. Discuss the issues surrounding employment equity and pay equity

7. Define diversity management and discuss why it is important.

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Canada’s Legal EnvironmentCanada’s Legal EnvironmentCanada’s Legal EnvironmentCanada’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 Legislation

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Canada’s Legal EnvironmentCanada’s Legal EnvironmentCanada’s Legal EnvironmentCanada’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.

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Charter of Rights and Freedoms Charter of Rights and Freedoms Charter of Rights and Freedoms Charter of Rights and Freedoms

• Fundamental freedoms guaranteed:Freedom of conscience and religionFreedom of thought, belief, opinion and expression

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

Freedom of peaceful assembly; andFreedom 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.

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Charter of Rights and FreedomsCharter of Rights and FreedomsCharter of Rights and FreedomsCharter 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.

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Human RightsHuman RightsHuman RightsHuman 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)

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PROHIBITED GROUNDSPROHIBITED GROUNDSPROHIBITED GROUNDSPROHIBITED GROUNDS

RACE

RELIGION

AGE

SEX

DISABILITY

SEXUAL ORIENTATION

MARITAL STATUS

FAMILY STATUS

NATIONAL/ETHNIC ORIGIN

CONVICTIONS (PARDONS NOT GRANTED)

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What is discrimination?What is discrimination?What is discrimination?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

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Types of DiscriminationTypes of DiscriminationTypes of DiscriminationTypes 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.

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Employer RequirementsEmployer RequirementsEmployer RequirementsEmployer Requirements

• Bona Fide Occupational Requirement (BFOR/Q)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.

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HarassmentHarassmentHarassmentHarassment

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)

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• 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)

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• Sexual Harassmentunwanted, 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.

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Sexual HarassmentSexual HarassmentSexual HarassmentSexual 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?

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Electronic 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

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• 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.

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Two 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.

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Sexual HarassmentSexual HarassmentSexual HarassmentSexual 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.

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Other LegislationOther LegislationOther LegislationOther Legislation

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

Employment Standards: -- minimum, non- negotiable standards of employment required by law. -- designed to protect workers from possible exploitation through unregulated labour markets.

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Other LegislationOther LegislationOther LegislationOther Legislation

Occupational 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.

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Employment Equity and Pay EquityEmployment Equity and Pay EquityEmployment Equity and Pay EquityEmployment Equity and Pay Equity

• Two Separate Pieces of Legislation

Employment Equity (EE) addresses discrimination in employment,

especially where designated groups are concerned

Pay Equityaddresses historical wage gaps between females

and males doing the same or comparable work

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Employment Equity (EE)Employment Equity (EE)Employment Equity (EE)Employment Equity (EE)

Employment Equity a program, practice or legislation designed to

provide access to employment for people in designated groups who have been subject to discrimination.

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• 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.

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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

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Conference Board Report: Many employers recognize employment equity as a key

element for corporate success Employment Equity is most effective when tied to

business strategy Employment Equity is now recognized worldwide as a

uniquely Canadian tool for efficient use of scarce skilled human resources, and is increasingly being imitated by advanced industrialized countries

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• 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 imageenhances recruitment effortsincreases employee commitment

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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.

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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.

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• Glass Ceiling Discriminatory practices that have prevented

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

• Glass Walls and Glass ElevatorOver time, women tended to advance to

senior positions, but only in a limited number of functional areas such as human resources or corporate communications.

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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.

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Pay EquityPay EquityPay EquityPay Equity

Pay 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.

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Pay EquityPay EquityPay EquityPay Equity

Equal 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

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Managing DiversityManaging DiversityManaging DiversityManaging Diversity

Indicators of Diversity Fig. 3-8

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•Status quo is protected •Possible legal issues are increased•Diversity is not important

Ignore Diversity

•Diversity training is provided•Employment Equity compliance occurs•Designated group members are a focus•Conflicts and problems occur

Begin the Process of Dealing with

Diversity

•Diversity pays off for company•Conflicts are reduced•Internal problem solving takes place

Build Acceptance of Diversity

•Diversity permeates the company•Problems are approached pro-actively•Everyone gets along•Business results improve

Solve Diversity Issues and Create an

Inclusive Culture

Various Approaches to Diversity and Their Results Various Approaches to Diversity and Their Results Fig. 3-9Fig. 3-9

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The 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

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Common Diversity Management Common Diversity Management ComponentsComponents

Fig. 3-11Fig. 3-11

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Diversity 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

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Mixed reviews about diversity training exist. Some argue that:

1. Diversity training tends to draw attention to differences, building walls rather than breaking them down.

2. Diversity training content is “politically correct”, blaming majority individuals, especially white males for past wrongs.

3. Diversity training does not reduce discrimination and harassment complaints, and has not taught the behaviours needed for employees to get along in a diverse workplace.

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Backlash against diversity efforts: Members of designated groups see diversity

efforts as inadequate and simply “corporate public relations”.

White males and others not part of designated groups believe diversity sets them up to be blamed for societal problems created by diversity.

Documents

3 - 1 Copyright © 2008 by Nelson, a division of Thomson Canada Limited. Part 2: Staffing the Organization Chapter 3: Legal Environment of Equal Employment