Human Rights Legislation in the Workplace

• Author: Geoffrey England
• Pages: 159-211

CHAPTER

HUMAN

RIGHTS

LEGISLATION

IN THE

WORKPLACE

All

Canadian provinces

and the

federal

jurisdiction have enacted

human

rights

statutes designed

to

eliminate

discrimination

on

pro-

scribed grounds

from

all

walks

of

life,

including

employment.1

The

development

of

this

legislation

has

been inspired

by the

growing con-

cern

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

Charter

of

Rights

and

Freedoms,

which, although

it

does

not

apply directly

to the

terms

of

private

employment

contracts,2

nonetheless

has

fuelled

the

expectation

of all

workers

for

greater "rights"

in

their employment

relationships.

Canadian

Human

Rights

Act,

R.S.C.

1985,

c. H-6

[Can.

HRA];

Alberta

Human

Rights,

Citizenship

and

Multiculturalism

Act,

R.S.A.

1980,

c.

H-11.7

[Alta.

HRA];

British

Columbia

Human

Rights

Code,

R.S.B.C.

1996,

c. 210

[B.C.

HRC];

Manitoba

Huma

Rights

Code,

S.M.

1987-88,

c. 45, s.

9(2) [Man.

HRC];

New

Brunswick Human

Rights

Act,

R.S.N.B.

1973,

c.

H-ll

[N.B.

HRA];

Newfoundland

Human

Rights

Code,

R.S.N.

1990,

c.

H-14

[Njld.

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

[Out.

HRC];

Prince Edward

Island

Human

Rights

Act,

R.S.PE.1.1988,

c.

H-12

[PEL

HRA];

Quebec

Charter

of

Human

Rights

and

Freedoms,

R.S.Q.,

c.

C-12

[Quebec

Charter];

Saskatchewan

Human

Rights

Code,

S.S. 1979,

c.

S-24.1

[Sash.

HRC].

For

further

elaboration

on the

employment

dimension

of

this legislation,

see G.

England,

I.M.

Christie

& M.

Christie,

Employment

Law

in

Canada,

3d

ed., looseleaf (Markham,

Ont:

Butterworths,

1998)

c. 5,

8(V).

The

effect

of the

Charter

on the

terms

of

employment contracts

and

collective

agreements

of

public

and

parapublic employers

is

examined

in

Lavigne

v.

O.P.S.E.U.,

[1991]

2S.C.R.

211.

H

1

2

159

160

INDIVIDUAL

EMPLOYMENT

LAW

It

is

important

to

understand

from

the

outset that

the

concept

of

"discrimination" espoused

by

modern human rights legislation goes

beyond

the

situation where

an

employer deliberately penalizes

a

worker

out of

distaste

for his or her

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 minorities

are

per-

ceived

as

suffering,

even though their current employer

or

potential

employer

may not

harbour

any

personal

animosity towards them.

Accordingly,

the

employment practices

and

policies

of an

employer

can

be

regarded

as

"discriminatory"

in the

latter sense

if

they simply

have

a

deleterious impact

on a

protected group, even though

the

prac-

tices

and

policies

in

question

on

their

face

treat

non-protected

and

pro-

tected

groups identically. This situation

is

referred

to in

human rights

parlance

as

"indirect" discrimination. Much

of the

public controversy

generated

by the

fact

that human

rights

acts accord "preferential treat-

ment"

to

protected groups

— for

example,

by

means

of

affirmative

action hiring

and

promotion remedies

—

springs

from

a

widespread

misunderstanding

of or

disagreement with

the

notion that discrimina-

tion encompasses

non-intentionally

produced societal disadvantages.

Also,

it is

important

to

appreciate

from

the

outset

the

potentially

enormous

influence

of

human

rights

legislation

on

other areas

of

Cana-

dian employment law.

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

production process

up to the

point

of

causing

the

firm

"undue

hardship,"

in

order

to

avoid disadvantaging protected employees

— for

example,

by

laying

off

employees whose

disabilities

incapacitate them

from

performing some

of

their duties. This duty goes

to the

very heart

of

the

employer's managerial prerogatives, allowing human rights tri-

bunals

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

—

will influence courts

to

develop

a

general duty

of

fairness

on

employers,

possibly

under

the

rubric

of

established doctrines such

as

"constructive dismissal," "reasonable

notice,"

and

"just cause,"

or

even

as an

independent implied term

in

the

employment contract.

Furthermore,

the

human rights legislation brings

to the

fore

the

issue

of

where

to

strike

the

balance between,

on the one

hand, advanc-

ing

employee rights,

and on the

other hand, avoiding

the

imposition

of

Human

Rights Legislation

in the

Workplace

161

extra

costs

on

employers that would imperil their competitiveness

to

the

disadvantage

of

their existing

and

potential employees

and

society

as

a

whole. Although legislating safeguards

for

human

rights

almost

certainly

will achieve some

efficiency

gains

for

employers, there will

clearly

be a

point

at

which legal intervention

will

create inefficiencies.

Unfortunately,

there

is a

dearth

of

empirical evidence

on the

economic

costs

and

benefits

of

modern Canadian human

rights

laws. Potentially,

social

stability could

be

jeopardized

if

workers' expectations

for

ever-

increasing

rights

simply

cannot

be met by

employers.

An

assessment

of

Canadian human rights legislation must also take

into

account

the

notorious slowness

of

current enforcement procedures.

This

is an

important limitation

on the

success

of the

legislation,

for any

body

of

substantive rights

is

only

as

good

as its

enforcement machinery.

Not

only

is the

employee harmed

by

delays,

but the

employer, too,

stands

to

suffer

from

the

uncertainty

and

public stigma associated with

a

human rights complaint.

The

raison

d'etre

of all

protective employment

legislation,

of

course,

is to

provide employees with

an

accessible, cheap,

and

expeditious method

of

enforcing their employment rights compared

with common

law

litigation, which

is

unaffordable

for

most workers.

This chapter begins

by

outlining

the

protected grounds under

Canadian

human rights acts

and

then examines what conduct

on the

employer's part constitutes proscribed discrimination. Then,

we

ana-

lyze

the

defences

to

discrimination, especially

the

crucially important

defence

of

"bona

fide

occupational requirement"

and the

employer's

duty

of

reasonable accommodation. These general principles

are

then

examined

in the

context

of

sexual harassment. Finally,

the

enforce-

ment machinery

and

available remedies under human rights acts,

including

affirmative

action remedies,

are

examined.

The

reader

should

refer

to one of the

specialized human rights texts

for

further

elaboration

of

these

matters.3

A.

PROHIBITED

GROUNDS

OF

DISCRIMINATION

Depending

on the

jurisdiction,

the

following

grounds

of

discrimination

are

explicitly protected

in

human rights statutes: race; mental

and

3 The

leading text

is

W.S. Tarnopolsky, Discrimination

and the

Law:

Including

Equality

Rights

Under

the

Charter,

rev.

ed. by WE

Pentney, looseleaf (Don

Mills,

Ont.:

DeBoo,

1985).