Equality and Human Rights in Employment

• Pages: 1064-1186

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Chapter : Equality and Human Rights in Employment

: INTRODUCTION

Labour law has long been grounded in equality considerations. Historically, the main issue

has been diminishing the inequality of bargaining power between employers and employees

through trade unions. Today, when we speak of equality rights in the workplace, we are more

likely referring to protections against discrimination — to diminishing sexism, racism, and

homophobia, and to enhancing the ease with which persons with disabilities can partici-

pate fully in the workforce. In this regard, labour relations are subject to the constraints of

equality law. The equality provisions of the Canadian Charter of Rights and Freedoms apply to

labour and employment legislation and to its application by administrative tribunals, as well

as to any employment relationship that has a nexus with government. Human rights legis-

lation applies to employers, unions, and employees in the public and private sectors, and

it may take primacy over other legislation. As discussed in Chapter , grievance arbitrators

have jurisdiction, to an increasing degree, to apply human rights legislation and the equality

provisions of the Charter. Other statutes also explicitly promote particular aspects of equal-

ity. Pay equity legislation, for example, reects important policy decisions about equality

relationships in the workplace and about the social status of employees. Other important

human rights issues, which have received a growing recognition, include workplace harass-

ment and privacy in the workplace.

In this chapter, we address some of the most pressing equality issues involved in labour

relations, a few of which were mentioned in earlier chapters. We begin with an overview of

the meanings given to equality and the identication of equality-seeking groups. We then

discuss specic areas of equality and human rights law, such as harassment law, pay equity

law, the duty to accommodate, and privacy issues, as they apply in the labour and employ-

ment context. Some traditional labour relations principles, such as respect for seniority,

must be reconciled with equality requirements.

: THE CONCEPT OF EQUALITY

: Theoretical Development of the Concept

Equality is a complex concept. It has evolved in many dierent arenas and it is highly con-

textual. “Equality and inequality,” one writer has said, “are political constructions; both their

conditions and their denitions vary across space, time, and philosophical families”: Jane

Theoretical De velopment of the Concept | :



Jenson, “Rethinking Equality and Equity: Canadian Children and the Social Union” in Edward

Broadbent, ed, Democratic Equality: What Went Wrong? (Toronto: University of Toronto Press,

) .

Our contemporary understanding of social equality has its roots in a commitment to pol-

itical and legal equality, which is embodied in principles such as “one person, one vote” and

the right to equal treatment before the law. These are examples of formal equality; the cap-

acity to enjoy them and use them eectively is often dependent on social or economic status.

Proponents of formal equality may go no further than to accept that arbitrary barriers

should not be placed in the way of anyone’s opportunity to improve his or her condition.

Underlying the notion of formal equality is the objective of treating people more or less the

same. However, if one begins with the assumption that, for example, only men are capable

of being lawyers, high school principals, or skilled tradespeople, excluding women (explicitly

or in practice) from those lines of work will not be seen as a denial of equality rights. Under

this status-based approach to equality rights, anyone who is treated in a manner appropriate

to his or her status is seen to be treated equally.

Taking the commitment to equality one step further leads to the idea that people should

be judged on their individual merit and not be excluded from pursuing opportunities or

receiving benets because of particular characteristics, such as class, race, sex, religion, or

disability. This idea of equality of opportunity represented a step forward from the earlier

status-based concept to a liberal concept of equality based on the right of each individual to

achieve whatever can be achieved through that person’s own eorts. Yet when we look below

the surface of this liberal ideal, it becomes obvious that because of their economic status,

some people are better placed than others to develop their aptitudes.

As noted above, anti-discrimination law initially stressed “sameness,” emphasizing the

fact that all human beings share common characteristics simply because they are human

beings. Whatever its strengths, that approach overlooked the ways in which people can be

treated unequally under a veil of equal treatment. The gradual realization of this shortcom-

ing in recent decades led to the development of the concept of substantive equality or equal-

ity of outcome. Key to this concept is the distinction between direct and indirect (or adverse

eect) discrimination and the development of the legal duty to accommodate.

The distinction between direct and indirect discrimination was based on the recognition

that there can be discrimination without an intention to discriminate. Ostensibly neutral job

requirements are often developed without consideration of their impact on members of par-

ticular groups. A job requirement that an employee be able to lift heavy weights might have

an adverse eect on women or on people with particular disabilities, even if the employer

does not actually intend to exclude them from the job. Similarly, a requirement that employ-

ees work on Saturdays may not be intended to discriminate against those whose religion

makes Saturday a day of rest. Human rights legislation imposes a duty to accommodate if

it can be done without undue hardship to the employer or other employees. Facially neutral

rules such as the examples just given will not be upheld as “bona de occupational require-

ments” if the employee can be accommodated without undue hardship pursuant to human

rights law.

This evolution in the concept of equality has been accompanied by an evolution in the

identication of the groups protected by anti-discrimination law. Initially, a few categories

CHAPTER : EQUALITY AND HUMAN RIGHTS IN EMPLOYMENT

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were identied on the basis of seemingly immutable attributes such as race and sex. Human

rights legislation now recognizes a much wider variety of grounds, which may include family

status, marital status, sexual orientation and criminal record. This is in accord with the

broadening view of the concept of equality and the acceptance of the idea that individual

cases of discrimination and unequal treatment in employment do not exist in isolation from

broader social conditions. Areas of contention at the borders of today’s expanded grounds

include immigration status and the status of being a temporary or part-time worker.

: Application of the Concept of Equality by the Courts

Although understanding dierent approaches to the concept of equality requires some

familiarity with the approaches taken by various disciplines — philosophical and political

approaches, among others — we also need to understand how the law sees that concept.

The main sources of equality law in the labour relations context are found in section  of

the Canadian Charter of Rights and Freedoms and in human rights statutes, and in the inter-

pretation of those instruments by appellate courts.

Until the enactment of human rights legislation, there was no way to challenge inequal-

ity directly where issues such as race or sex were involved. Provincial legislation prohibiting

Chinese from working in mines was successfully challenged more than a century ago on

division of powers grounds; it was held to trespass on federal authority over “naturalization

and aliens” under section () of the Constitution Act, . Not much later, however, a

provincial statute prohibiting Chinese employers from hiring white women was held to be

within provincial authority because its primary purpose was found to be protective. See

Union Colliery Co v Bryden, [] AC  (PC) and Quong-Wing v R (),  SCR . The

rst detailed statute codifying equality in employment as a basic human right was the Sas-

katchewan Bill of Rights Act, SS , c . It was quasi-criminal legislation that required

proof of an invidious intent: its sanctions were penal, focusing on nes and imprisonment.

Attacking discrimination by punishing the perpetrators of discrimination proved ineective,

however, and other provincial legislatures passed statutes designed to give victims compen-

sation and relief. In  Ontario passed the rst human rights statute — the Fair Employ-

ment Practices Act, SO , c .

Slowly, during the next two decades, the other provinces and the federal government

enacted similar legislation. Over the years, the prohibited grounds of discrimination under

those statutes were expanded, as were the areas of activity to which they applied, the admin-

istrative machinery for their enforcement, and the range of remedies available. In Seneca

College of Applied Arts and Technology v Bhadauria, []  SCR , Laskin CJ held that a civil

action could not be brought to vindicate equality rights set out in human rights statutes,

because those statutes themselves provided a comprehensive administrative and adjudica-

tive regime for the protection of such rights.

Human rights legislation was the major source of equality law until section  of the

Canadian Charter of Rights and Freedoms came into force in . When the Supreme Court

of Canada decided its rst case under section  — Andrews v Law Society of British Colum-

bia, []  SCR  — it sought guidance from contemporary jurisprudence under human

rights legislation. The idea that intention is not required for a nding of discrimination, the