Ch 5*vanessa *Done* Flashcards
Discrimination Definition
Intentional act of exclusion, may be Direct discrimination or indirect.
Adverse impact discrimination
unintentional discrimination that has an adverse effect on members of certain groups (also known as Constructive Discrimination)
Meiorin test to determine when to discriminatory rule is justifiable:
- Demonstrate that a rational connection exists between the purpose for which the standard was introduced and the objective requirements of the job
- Demonstrate that the standard was adopted in an honest and good faith belief that it was necessary for the performance of the job
- Establish that the standard was reasonably necessary to accomplish that legitimate work related purpose, to establish this the employer must show that it was impossible to accommodate employees who share the characteristics of the claimant without imposing undue hardship on itself
Factors to consider when assessing whether the duty to accommodate has been met:
- Did the employer investigate alternative approaches that do not have a discriminatory effect, such as individual testing?
- Were the valid reasons why alternative approaches were not implemented? What where they?
- Can the workplace accommodate different standards that reflect group or individual differences and capabilities?
- Can legitimate workplace objectives be met in a less discriminatory manner?
- Does the standard ensure that the desired qualifications is met without placing an undue burden on those whom it applies?
- Have other parties who are obliged to assist in the search for accommodation fulfilled the roles?
Undue Hardship
A defence available to an employer if it can prove that fulfilling the duty to accommodate would impose an excessive burden on it based on a number of factors, including financial cost and safety.
Other factors which undue hardship is based on:
- Financial costs
- Size and resources of the employer
- Disruption of operations
- Morale problems of other employees
- Substantial interference with the rights of other individuals or groups
- Interchangeability of workforce and facilities
- Health and safety concerns
Accommodation Requests Definition
Tailoring the workplace to meet the needs of the individual employee
It is in the responsibility of both parties to make sure the needs of accommodation is heard and met. (employer, employee, and union of the responsibility)
Three factors that accommodation requests involve
- Individualism - each person needs a unique solution
- Dignity - must be accommodated in a matter that respects their dignity including privacy, confidentiality, comfort, and autonomy
- Inclusion - must be design with everyone in mind
Types of Accommodation
- Accommodating employees with disabilities
- Accommodating employees’ religious beliefs and practices
- Accommodating employees pregnancy and breast feeding needs
- Accommodating employee’s family status
- Accommodating employees’ Age
Harrassment
Not defined in the legislation, but prohibited if associated with a protected ground
Examples of prohibited behavior include:
Threats, derogatory, remarks, the display of pornographic, racist, unwelcome gestures etc
How to investigate harassment complaints
• Take allegations seriously, promptly , thoroughly, and fair to both parties
How to determine whether harassment has occurred
the standard objective:
would a reasonable person think the conduct or comment was inappropriate?
Employer Liability for Human Rights Violations:
Employer is vicariously liable for the discriminatory acts of its agents and employees in the workplace . The employer is directly liable for the actions of management
an employer may avoid liability for harassment by non managerial employees, if the employer …?
- can show that it was unaware that harassment was occurring
- Was diligent in preventing it
- And responded appropriately to it once aware
Remedies for Human Rights Tribunals
Human rights tribunal can dismiss a complaint that is without merit.
If a complaint does have merit the tribunal may order the respondent to….?
- To cease the discriminatory policy or behaviour
- To refrain from engaging in the same or similar discriminatory acts in the future
- To award the complainant any opportunities or privileges that were lost as a result of discrimination
- To compensate the complainant for any or all wages income lost or expenses incurred
- To take any other action the tribunal considers proper to place the complainant in the position he or she would have been in but for the discrimination
How to Accommodate employees with disabilities
○ Meeting the required standard
○ Providing alternative work
○ Employer’s duty to accommodate is ongoing and must be pursued actively
○ Employees obligation to cooperate
○ Employer should follow guidelines in handling requests for disability p135
○ Employers should accommodate employees who abuse drugs/alcohol
How to Accommodate employees’ religious beliefs and practices
○ Religious days off
○ Including dress codes, break policies, work schedules, religious leave
Flexibility needs to be built in to employers policies
How to Accommodate employees pregnancy and breast feeding needs
temporary relocation, flexible work schedules and break times
How to Accommodate employee’s family status
Flexible work hours to care for elderly parents, not consistently scheduling meetings after business hours
How to Accommodate employees’ Age
Discrimination against an employee on the basis of age is not longer possible unless the employee is under the age of 19.
13(3)(b) still makes allowances for differentiation based on age under bona fide retirement, superannuation, or pension plans
Is substance abuse protected by human rights legislation?
yes
Is on the job drug testing justifiable ?
No, except in limited circumstances, such as safety sensitive positions where conditions apply or when an employee is injured on the job and the accident reasonably suggests impairment.
If on the job drug tests results are positive
employers response is tailored to the individual circumstance, and must offer reasonable accommodation and is not allowed to automatically dismiss the employee
Are employees allowed to hold out for better accommodations, if they are not satisfied with what their employer provided ?
No
