EVOLUTION OF HUMAN EVOLUTION OF HUMAN RIGHTS LEGISLATIONRIGHTS LEGISLATION

Mr. Andrez – CLN4UMr. Andrez – CLN4U

IntroductionIntroductionCanadians enjoy both:

◦Civil Rights (and freedoms) - limit the power that a government has over its citizens

◦Human Rights – protect people from being unfairly discriminated against by other individuals

Canadians can feel secure in almost all areas of their lives

Canadians are free because laws are passed and enforced to protect their rights and freedoms

Wealth, gender, race, age, belief, family status … are not supposed to determine how you are treated in Canada – equal under the law

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Human Rights LegislationHuman Rights LegislationPurpose

◦To provide equal employment opportunities (i.e., prevent discrimination) to members of protected groups

◦Makes it illegal to discriminate—even unintentionally—against certain groups

2 levels of legislation◦Federal◦Provincial

Evolution of Human Rights LawEvolution of Human Rights Law

Human rights protection has been a process in Canada◦It has been three decades since our

rights have been “enshrined” in the Constitution

◦Did Canadians operate without rights prior to the Constitution?

Evolution of Canadian Human Evolution of Canadian Human Rights LegislationRights Legislation Much of Canada's human rights

legislation developed during the 20th century.

Unlike the U.S. Constitution, the British North America (BNA) Act did not address Human Rights issues at all.

It focused instead on the division of powers between the federal government and the provinces and territories.

Evolution of Human Rights LawEvolution of Human Rights LawCommon Law

◦Originally, Canadians were protected by the rules of British common law

◦Common law itself did not provide for a guarantee of civil liberties

◦A free person is allowed to do anything which is not positively prohibited

E.g. a person has freedom of speech as long as that freedom does not conflict with existing laws that regulate speech such as defamation laws

Defamation means making false or malicious statements that injure a person’s reputation

Christie v. York (1940),Christie v. York (1940),

One of Canada's most famous human rights cases, clearly emphasized the lack of human rights laws

in this country. Mr. Christie and several friends went to the

Montreal Forum to watch a hockey game. In a bar at intermission, the bar attendant refused to serve Mr. Christie because of his skin colour. He went to court over the issue and the judge awarded him $200 for loss of dignity and worth.

However, the business community appealed the ruling on the basis that under current legislation they had the freedom to serve anyone they chose.

The higher court agreed and overturned the original judgment, making it clear that no law existed to protect Mr. Christie's rights.

Evolution of Human Rights LawEvolution of Human Rights Law

Canadian Bill of Rights, 1960◦Aimed to establish written protection of

rights and fundamental freedoms Right of the individual to life, liberty,

security of the person and enjoyment of property

Freedom of religion Freedom of speech Freedom of assembly and association Freedom of the press

Evolution of Human Rights LawEvolution of Human Rights LawWhat were the limitations of the

Canadian Bill of Rights?1. Inadequate in protecting individual rights EQUALITY PROVISIONS were narrowly

defined to mean “equal administration of law”. People seeking rights enforcement from the courts were usually disappointed.

2. Not a constitutional document, only a federal statute, so it could be revoked

3. Did not apply to provincial governments4. Did not confer ability to create new rights

The Canadian Human Rights The Canadian Human Rights Act, 1977Act, 1977

◦Applies to employers under federal jurisdiction

◦About 10% of labour force E.g., federal gov’t, crown corps,

chartered banks, airlines, etc.

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Prohibited Grounds of Prohibited Grounds of DiscriminationDiscriminationS. 3 of the CHRA prohibits discrimination

based on:◦ Race or colour◦ Ethnic or national origin◦ Creed or religion◦ Sex (including pregnancy and childbirth)◦ Marital status◦ Family Status◦ Age◦ Disability◦ Harassment◦ Past conviction (for which a pardon has been

granted)

Slight variations between federal and provincial legislation

Charter Of Rights and Freedoms, 1982

◦Rights protection would now apply to federal, provincial and territorial governments

◦Rights protection enshrined in the Constitution Could not be repealed or changed

without constitutional amendment

The Ontario Human Rights The Ontario Human Rights CodeCode The development of these laws and

increased social pressure led politicians to establish a more comprehensive human rights legislation to protect the rights of individuals.

In 1962, Ontario proclaimed its Human Rights Code.

Laws would be enforced through the establishment of the Ontario Human Rights Commission.

Revisions to The Code have occurred several times since then to broaden its protection of individuals.

The Ontario Human Rights The Ontario Human Rights CodeCode The Ontario Human Rights Code

has supremacy over all other legislation in Ontario unless that legislation specifically states that the Code does not apply.

An example of where the Code does not apply is when persons with certain disabilities (such as uncontrolled seizures) are prohibited from driving under the Highway Traffic Act.

SOCIAL AREASSOCIAL AREASThe Ontario Human Rights Code provides

protection from discrimination in five social areas of our lives:

1.services, goods and facilities—including schools, hospitals, shops, restaurants, sports and recreation organizations and facilities.

2.occupancy of accommodation—the place where you live or want to live, whether yourent or own the premises.

3.contracts—whether written or oral agreements.

4.employment—including advertisements, application forms and job interviews as well as work assignment, training, and promotions.

5.membership in vocational associations and trade unions - such as the OntarioSecondary School Teachers’ Federation or United Steelworkers

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DiscriminationDiscriminationNot specifically defined in federal

legislation. OHRC is more specific◦Involves practices that fail to provide

equal opportunity to members of protected groups

Direct (Intentional) Discrimination◦Employment practice that intentionally

discriminates on a prohibited ground◦The deliberate use of prohibited grounds

in employment decisions

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DiscriminationDiscriminationIndirect (Systemic) Discrimination

◦Employment practice that results in discrimination against protected group, but is not intentional

◦Focus on the impact, not intent◦Referred to as: Adverse Impact, Disparate

Impact, Adverse Effect Discrimination, Constructive Discrimination

◦E.g., height requirement for police officers discriminates against women, visible minorities

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Bona Fide Occupational Bona Fide Occupational RequirementsRequirementsWhat is a BFOR?

◦A job requirement that legally overrides human rights protection

◦Allowed when abilities need to carry out the essential job requirements are related to a prohibited ground

◦E.g., employee’s religious commitments require wearing a turban; job requires a hard hat for safety purposes

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Bona Fide Occupational Bona Fide Occupational RequirementsRequirementsExamples of court cases involving

BFORs

Etobicoke, ON – mandatory retirement for firefighters after age 60

1982 Supreme court decision stated that being under 60 was not a BFOR◦Inadequate evidence suggesting that

reaching age 60 resulted in inability to perform the job

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Bona Fide Occupational Bona Fide Occupational RequirementsRequirementsExamples of court cases involving

BFORs

Canadian Coast Guard◦Applicant with complete hearing loss in

one ear was excluded from officer cadet training

◦Coast guard cited the condition was a safety risk

◦BFOR claim was denied because employer’s evidence of the safety risk was inadequate

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Bona Fide Occupational Bona Fide Occupational RequirementsRequirementsWhen BFORs are upheld:

Theatrical productions◦That require actors with particular

characteristics

Use of gender as selection criterion◦E.g., Male nursing attendants to provide

bathing, etc. for male hospital patients◦E.g., RCMP guards must be of same sex

as prisoners being guarded

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Supreme Court Case re:Supreme Court Case re: BC Firefighter BC FirefighterWoman employed in elite firefighting unit

by province of BC for more than 2 yearsNew fitness tests were introduced for unitShe failed one of new tests (run 2.5 km in

11 minutes) and was firedUnion grieved – got appealed to Supreme

CourtCourt sided with complainant

◦ BC gov’t had failed to establish the fitness requirement as a BFOR – lack of evidence showing inability to meet it was a safety risk

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Criteria used to assess Criteria used to assess BFORBFOR In this decision, the court established

3 criteria to assess appropriateness of BFORs

1. Is the standard rationally connected to the performance of the job?

2. Was the standard established in an honest belief that it was necessary to accomplish the purpose identified in stage 1?

3. Is the standard reasonably necessary to accomplish its purpose?

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Duty to AccommodateDuty to AccommodateRequirement that employer must

accommodate the employee to the point of “undue hardship”◦ Aka: Reasonable Accommodation◦ Employer is required to make certain

adjustments to job content or working conditions if an individual cannot meet job requirements (due to BFOR)

◦ E.g., redesigning work stations, lighting, adjusting work schedules

Undue hardship not specifically defined◦ Factors to consider include financial cost,

disruption of collective agreement, morale of other employees, etc.

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O’Malley v. Simpson-Sears O’Malley v. Simpson-Sears Ltd.Ltd.O’Malley was a full-time sales clerk at S-S

for several years; worked 2/3 SaturdaysBecame member of 7th Day Adventist

Church which observes sabbath from Fri – Sat PM

No longer available to work on SaturdaysEmployer suggested she resign; she didn’tEmployer cut her hoursLower courts sided with employer, saying

this was not intentional discriminationSupreme Court ruled it was adverse effect

discrimination (not intentional) Inadequate reason for not accommodating

employee

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Adverse Effect Discrimination as Adverse Effect Discrimination as defined in O’Malley v. Simpson-defined in O’Malley v. Simpson-Sears Ltd.Sears Ltd.“…an employer for genuine business

reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work group”

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HarassmentHarassment Harassment based on any of the

prohibited grounds◦ OHRC defines it as: “engaging in a

course of vexatious [annoying or provoking] comments or conduct which is known or ought to be reasonably known to be unwelcome”

Behaviour that creates a hostile work environment

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HarassmentHarassmentCHRC’s standard

◦Is harassment if “a reasonable person ought to have known that such behaviour was unwelcome”

◦May include verbal abuse, threats, display of offensive material, practical jokes that cause embarrassment, unwelcome remarks, innuendo, etc.

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Sexual HarassmentSexual Harassment Unsolicited or unwelcome sex- or gender-

based conduct that has adverse employment consequences for target

3 characteristics of SH identified by CHR Tribunal1. Encounters must be unsolicited, unwelcome, and

expressly or implicitly known by the respondent to be unwelcome;

2. The conduct must either continue despite complainant’s protests or, if the conduct stops, the complainant’s protests must have led to negative employment consequences; and

3. The complainant’s cooperation must be due to employment-related threats or promises