Chapter 4- Legal Requirements and Diversity, Equity, and Inclusion

Question 1

Government Impact

Answer 1

Federal and provincial laws regulate the employee-employer relationship

Responsibility of HR specialists:
-Stay abreast of the laws and interpretation of the laws by regulatory bodies and court rulings
-Develop programs to ensure company compliance
-Pursue their traditional roles of obtaining, maintaining, and retaining an optimal workforce (in light of laws and societal objectives)

https://www.worksafesask.ca/wp-content/uploads/2019/06/OHS-Legislation-190611.pdf

Question 2

Grouping Canadian Employment Legislation

Answer 2

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Question 3

Which Employment Laws Apply?

Answer 3

HR is responsible for ensuring that the organization is compliant with employment legislation

Three questions guide HR on which employment laws apply:

1. Question 1Is the person an employee of the company or an independent contractor?
2. Question 2Is the organization provincially or federally regulated?
3. Question 3Is the employee unionized or nonunionized?

Question 4

1. Is the person an employee of the company or an independent contractor?

Answer 4

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Question 5

2. Is the organization provincially or federally regulated?

Answer 5

Federal employment laws cover about 10% of Canadian employees who work in federally-regulated industries
-e.g., banks, postal service, federal government
-The Canada Labour Code covers the minimum employment standards (e.g., minimum wage, termination provisions) for all employees in federally regulated industries
-Also applies to businesses in the territories and on First Nations reserves, and certain Crown
Corporations

90% of Canadian employees fall under provincial legislation: The employment laws of the province employees work in apply

Question 6

The Legal Framework for HRM

Answer 6

Federal Government Regulations (10%) (Partial List):
Banks

Air transportation

Radio & TV broadcasting

Telecommunications

First Nations

Federal departments

Provincial & Territorial Regulations (90%):

All other businesses not
federally regulated
For example:

Retail & hospitality

Hospitals & health care

Schools, colleges & universities

Most Manufacturers

Question 7

3. Is the employee unionized or nonunionized?

Answer 7

Each province has its own employment standards act or code that defines minimum standards

Unionized employees are covered under each province’s labour laws

Labour relations acts set rules for how unions and employers will organize and collectively bargain to determine the minimum employment standards

Question 8

HR Responsibilities

Answer 8

There are also some employees who are exempt for many employment laws

These vary by province and may include farmers, municipal police, inmates, politicians, family members working in a family business

HR is responsible for determining which employment laws apply to each employee, and:
-Staying abreast of the laws and interpretation of the laws by regulatory bodies and court rulings
-Developing programs to ensure company compliance
-Pursuing their traditional roles of obtaining, maintaining, and retaining an optimal workforce (in light of laws and societal objectives)

Question 9

Human Rights Legislation

Answer 9

Unlike employment laws, which impact a single HR activity at a time, human rights legislation affects nearly every HR function

Human rights legislation is about not treating any Canadians differently because of their membership in a protected group

membership in a protected group is defined in the Canadian Charter of Rights and Freedoms

Question 10

The Charter of Rights and Freedoms

Answer 10

The Canadian Charter of Rights and Freedoms is contained in the Constitution Act of 1982

Most far-reaching legal challenge for HR managers

Charter provides fundamental rights to every Canadian

The Canadian Charter of Rights and Freedoms is contained in the Constitution Act of 1982
-Most far-reaching legislation for HR managers

Charter provides fundamental rights to every Canadian:
-Freedom of conscience and religion
-Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication
-Freedom of peaceful assembly
-Freedom of association

Question 11

Infringements

Answer 11

“Every individual is equal before the law and under the law and has the right to the equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.” Section 15 CCHRF

When a person challenges an infringement of their rights, the dispute may be settled by a tribunal, or in court

Courts interpret and apply the Constitution and legislation (federal and provincial), and develop and apply the common law (i.e., precedents)

Every province and territory has lower courts, which are the first to hear a case and make a ruling

Cases may proceed to provincial higher courts, to courts of appeal, and ultimately, to the Supreme Court of Canada

The SCC only hears cases of public importance or national significance and is the ultimate interpreter of the Charter

Question 12

Human Rights Legislation

Answer 12

Federal Law
-Passed by Parliament and enforced by federal Human Rights Commission/Tribunal
-To ensure equal employment opportunities with employers under federal jurisdiction

Provincial Law
-Enacted by provincial governments and enforced by provincial human rights commissions/tribunals
-To ensure equal employment opportunities with employers under provincial jurisdiction

Question 13

The Canadian Human Rights Act

Answer 13

A federal law prohibiting discrimination.

The act applies to all federal government departments and agencies, Crown corporations, and business and industry falling under federal jurisdiction (e.g., banks, airlines, railways, interprovincial communication)

Each province has its own antidiscrimination law

Question 14

Discrimination Defined

Answer 14

Dictionary: “A showing of partiality or prejudice in treatment; specific action or policies directed against the welfare of minority groups.”

Discrimination is not defined in the Charter of Rights and Freedoms, nor in any federal or provincial human rights legislation with the exception of Quebec.

Question 15

Prohibited Grounds of Discrimination

Answer 15

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Question 16

Direct Discrimination

Answer 16

Direct Discrimination
-On grounds specified in the human rights legislation—is illegal.
-Legal discrimination: bona fide occupational requirement (BFOR)
—But there is a duty to accommodate to the point of undue hardship

Question 17

Indirect (Systemic) Discrimination

Answer 17

Systemic Discrimination
-Company policy, practice, or action that is not openly or intentionally discriminatory, but has a discriminatory impact or effect
–Minimum height and weight requirements
–Minimum scores on employment tests
–Promotion criteria that favours seniority

Question 18

Harassment

Answer 18

Harassment
-Treating an employee in a disparate manner because of that person’s sex, race, religion, age, or other protected classification

Sexual harassment
-Unsolicited or unwelcome sex or gender-based conduct that has adverse employment consequences for the complainant

Employer Retaliation
-It is a criminal act to retaliate against employees who file human rights charges

Question 19

Enforcement

Answer 19

Canadian Human Rights Commission (CHRC) is responsible for enforcement of the Canadian Human Rights Act

Canadian provinces and territories generally have their own human rights laws and human rights commissions with similar discrimination criteria, regulations, and procedures

Question 20

Employment Equity Act Designated Groups

Answer 20

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Question 21

Employment Equity Act (1987)

Answer 21

Abella Commission on Equality in Employment was appointed

Employment Equity Act was passed by the federal government in 1987
-Employers with 100+ employees under federal jurisdiction to develop annual plans setting out goals and timetables

Question 22

Employment Equity Amendment (1996)

Answer 22

As of 1996, employers are responsible for providing reasonable accommodation, such as:
-Providing a sign language interpreter for a job interview with a deaf applicant
-Altering dress or grooming codes to allow Aboriginal people to wear braids, etc.

Question 23

Functional Impact of Employment Equity

Answer 23

Virtually every HR function is affected by employment equity plans:
-Human resource plans
-Job descriptions
-Recruiting
-Selection
-Training and development
-Performance appraisal
-Compensation program

Question 24

Major Steps: Employment Equity Programs

Answer 24

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Question 25

Pay Equity

Answer 25

Equal pay for work of equal value
-Federally, and in most provinces, it is illegal to pay women less than men if their jobs are of equal value

Major cases include:
-Federal government settled in 1999 at a cost of over $3.5 billion
-2011 Supreme Court of Canada ruling involving Canada Post is expected to cost $250 million

-The implication for HR is to be very certain wage and salary systems do not discriminate

Question 26

Reverse Discrimination

Answer 26

Usually arises when an employer seeks to hire or promote a member of a protected group over an equally (or better) qualified candidate who is not a member of a protected group
-Places HR departments in difficult position
-Canadian Human Rights Act declares Employment Equity Programs non-discriminatory if they fulfil the spirit of the law

Question 27

The Principle of Natural Justice

Answer 27

Minimum standards of fairness and implied obligations for decision-making

Rights:
-To a fair hearing
-To a bias-free proceeding
-To present the opposing argument
-Of legal representation
-To timely notice of a hearing
-To a timely process

Question 28

Strategic Implications of Legal Challenges

Answer 28

Ensure all rules and policies consider legal aspects

Employment equity requirements

Good corporate citizen

Training

Sexual harassment and unjust dismissal

Question 29

Privacy Legislation

Answer 29

Relatively newer legislation relating to the collection, storage, and access to personal information about employees

Includes information about race or national or ethnic origin, religion, age or marital status, medical and employment history, finances, DNA, identifying numbers (e.g., SIN), views and opinions about a person as an employee, but not business info

Two sets of privacy legislation:
-Privacy Act – right to access and correct personal information the GOC holds
-PIPEDA – sets rules for how many organizations collect, use and disclose personal information in Canada

Question 30

Workplace Policies

Answer 30

Current, ethical, and effective HR policies serve many purposes:

-Outlining expectations in the workplace (e.g., unacceptable behaviours, safe work practices)

-Meeting statutory requirements, such as having a working alone policy in Alberta or a workplace violence policy in Ontario

-Outlining how to address complaints, problems, and grievances

-Helping to protect employees from their colleagues’ poor behaviour and from misdeeds by the organization

-Helping to train and develop employees by explaining acceptable parameters

-Outlining breaks, vacations, and statutory holidays which may meet or exceed requirements from employment standards to eligible employees

Question 31

Types of HR Policies

Answer 31

Harassment (aka respectful workplace, code of conduct)

Attendance, leave, and break policies

Occupational health and safety

Workplace violence

Remote work

Technology use

Social media

Substance use

Confidentiality

Theft

Question 32

Other Legal Challenges

Answer 32

Canadian Labour Code (1971)
Dismissal

Hours of work and overtime regulations

Minimum wages

Occupational health and safety

Weekly rest day

WHMIS

Question 33

Diversity, Equity & Inclusion in Canadian Workplaces

Answer 33

Human characteristics that influence an employee’s values, perceptions of self and others, behaviours, and interpretation of events around them.

Question 34

Diversity, Equity, and Inclusion in Canadian Workplaces

Answer 34

Ensuring that treatment of others is equitable and just regardless of differences on diversity dimensions is the central goal of diversity, equity, and inclusion within organizations

Diversity is recognizing the presence of difference, equity is ensuring access to the same opportunities, and inclusion is about welcoming and valuing all people.

Question 35

Challenges for Diverse Workers

Answer 35

Stereotyping
-Grouping people based on commonalities without consideration of their individuality and capabilities

Old Boy’s Network
-Informal relationships among male managers and executives

Glass Ceiling
-Invisible but real obstructions to career advancement of women and visible minorities

Pet to Threat
-Shared experience by many Black women that the mentors and managers who once supported them later undermine them because they are perceived as a threat or competition

Question 36

LO 6 Strategic Importance of Diversity, Equity, and Inclusion

Answer 36

A combination of factors have fundamentally changed the way Canadian organizations work and who they employ:
-Changing Workforce
-Importance of Human Capital
-Increasing Role of Work Teams
-Diversity as a Competitive Advantage

Question 37

Diversity and Inclusion

Answer 37

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Question 38

Current Industry Practices

Answer 38

Diversity and Inclusion Training Programs:
-Awareness training
-Skill-building training
-Content vs. process training

Mentoring Programs:
-Senior manager provides guidance
-Formal or informal

Alternate Work Arrangements:
-Non-traditional work arrangements
-Provide more flexibility to employees

Apprenticeships:
-A form of on-the-job training
-Learn from an experienced person

Support Groups:
-Provide emotional support to new employee who shares a common attribute with the group

Communication Standards:
-Formal internal protocols
-Eliminate biases in communication