Human Rights Legislation in the Workplace

• Author: Geoffrey England
• Pages: 213-273

213

Cha pter 7

HUMAN RIGHTS

LEGISLATION IN

THE WORKPLACE

All Canadian provinces and t he federal jurisdiction have enacted hu-

man rights statutes designed to eliminate discrim ination on proscribed

grounds from all walks of life, including employment.1 The develop-

ment of this legislation has been inspired by the grow ing concern in

Canada and at the international level since the Second World War with

protecting human rights; by the increasingly important role of women,

immigrants, and visible minorities in the Canadian labour force; and by

the enactment of the Canadian Char ter of Rights and Freedoms, wh ich,

although it does not apply directly to t he terms of pr ivate employment

contracts, has nonetheles s fuelled the expectation of all workers for

greater “rights” in their employment relationships.2

1 Canadian Huma n Rights Act, R.S.C. 1985, c. H-6 [Can. HRA]; Alberta Human

Rights, Citizenship and Multic ulturalism Act, R.S.A. 2000, c. H-14 [Alta. HRCMA];

British Columbi a Human Rights Code, R.S.B.C. 1996, c. 210 [B.C. HRC]; Mani-

toba Human Rights Code, C.C.S .M. c. H175, s. 9(2) [Man. HRC]; New Brunswick

Human Rights Act, R.S.N.B. 1973, c. H-11 [N.B. HRA]; Newfoundland and Labra -

dor Human Rights Code, R.S.N.L. 199 0, c. H-14 [N.L. HRC]; Nova Scotia Human

Rights Act, R.S.N.S. 1989, c. 214 [N.S. HRA]; Ontario Human Rights Code, R. S.O.

1990, c. H.19 [Ont. HRC]; Prince Edward Island Huma n Rights Act, R.S.P.E.I.

1988, c. H-12 [P.E.I. HRA]; Quebec Charte r of Human Rights and Freedoms, R.S.Q.

c. C-12 [Quebec Charter]; Saskatchewa n Human Rights Code, S.S. 1979, c. S-24.1

[Sask. HRC]. For further elaboration on t he employment dimension of thi s legis-

lation, see G. Engl and, R. Wood, & I. Christie, Employm ent Law in Canada, 4th

ed., looseleaf (Ma rkham, ON: LexisNexis C anada, 2005–) c. 5 at 1.

2 G. England, “The Impact of t he Charter on Individual Employ ment Law in Can-

ada: Rewr iting an Old Story” (2006) 13 C.L.E.L.J. 1 [“Impact of the Char ter”].

INDIVIDUAL EMPLOYMEN T LAW214

It is important to understand from the outset that the concept of

“discriminat ion” espoused by modern human rights legislation goes

beyond the situation where an employer deliberately penali zes a work-

er out of distaste for a protected characteristic — for example, where

an employer refuses to hire Jews out of anti-Semitism. This situation

is referred to in human rights parlance as “direct” or “intentional”

discrimination. Rather, the human rights acts seek to eliminate the

disadvantages that women and visible m inorities are perceived as suf-

fering, even though their cur rent employer or potentia l employer may

not harbour any persona l animosity towards them. Accordingly, the

employment practices and policies of an employer can be regarded as

“discriminator y” in the latter sense if they simply have a deleterious

impact on a protected group, even though the practices and policies

in question, on their face, treat non-protected and protected groups

identically. Thi s situation is referred to in human rights parlance a s

“indirect” discrim ination. Much of the public controversy generated by

the fact th at human rights acts accord “preferential treatment” to pro-

tected groups — for example, by means of aff‌irmative action hiring and

promotion remedies — springs from a widespread misunderstanding of

or disagreement with the notion that discrimination encompasses non-

intentionally produced societal di sadvantages.

It is als o important to appreciate f rom the outset the p otentially enor-

mous in f‌luence of human rights legislation on other areas of Canadi an

employment l aw. A central feature of modern human rights acts is the

duty of “reasonable accommodation,” which obliges employers to attempt

to rearrange work schedules, job assignments, and other facets of the pro-

duction process up to the point of causing the f‌irm “undue hardship,” in

order to avoid disadvantaging protected employees — for example, by lay-

ing off employees whose dis abilities incapacitate them from performi ng

some of their duties. This duty goes to the very heart of the employer’s

managerial prerogatives, allowing human rights tribunals to dictate how

much economic harm the employer must sustain in order to safeguard

an employee’s personal rights. Conceivably, this precedent — that an

employer’s interests must give way to the employee’s claim to be treated

fairly — has inf‌luenced courts to develop a broad duty of fair ness on em-

ployers, possibly under the rubric of est ablished doctrines, such as “con-

structive d ismissa l,” “reasonable notice,” and “just cause,” or even as an

independent implied term in the employment contract.3

Furthermore, the human rights leg islation brings to the fore the

issue of where to strike t he balance between, on the one hand, advan-

3 Ibid. at 26.

Human Right s Legislation in the Workplace 215

cing employee r ights, and on the other hand, avoiding the imposition

of extra costs on employers that would imperil their competitiveness to

the disadvant age of their existing and potentia l employees and society

as a whole. Although leg islating safeguards for human rights almost

certainly will ach ieve some eff‌iciency gains for employers, there will

clearly be a point at which legal intervention will create inef f‌iciencies.

Unfortunately, there is a dearth of empirica l evidence on the economic

costs and b enef‌its of modern Canadian human r ights laws. Social sta-

bility could be jeopardi zed if workers’ expect ations for ever-increasing

rights cannot be met by employers.

An asses sment of Canadian human rights legislation must also take

into account the notorious slowness of cur rent enforcement procedures.

Thi s slow nes s is an impo rtan t lim itat ion on t he su cces s of th e legi slat ion,

for any body of substantive rights is only as good as its enforcement ma-

chinery. Not only is the employee harmed by delays, but the employer,

too, may suffer from the uncertainty and public stigma associated with

a human rights complaint. The rais on d’êt re of all protective employ ment

legislat ion is to provide employee s with an acces sible, cheap, and exped-

itiou s method of enforc ing the ir employ ment ri ghts com pared w ith com-

mon law litigation, which is unaffordable for most workers.

This chapter b egins by out lining the protected grounds under Can-

adian human rights acts and then exam ines what conduct on the em-

ployer’s part constitutes proscribed discri mination. We then analyze the

defences to discrimination, especially the crucially importa nt defence of

“bona f‌ide occupational requirement” and the employer’s duty of reason-

able accommodation. These general principles are then examined in the

context of sexual har assment. Finally, the enforcement machinery and

available remedies under human rights acts, including those of aff‌irma-

tive action, are examined. The reader should refer to one of the special-

ized human right s texts for further el aboration of these matters.4

a. prohIBIteD GroUNDS oF

DISCrImINatIoN

Depending on the jurisdiction, the following grounds of discrimina-

tion are ex plicitly protected in human rights statutes: race; mental5

4 The leading tex t is W. S. Tarnopolsk y, Di scrimination and the Law: Including

Equality Rights unde r the Charter, rev. ed., by W.F. Pentney, looseleaf (Don Mi lls,

ON: DeBoo, 1988).

5 Example: Lane v. ADGA Group Cons ultants Inc., 2007 HRTO 34, where bipolar

disorder was r uled to be a protected “disabilit y” or “handicap.”