Class 3 - Human Rights Protections

Question 1

Canadian Legal Framework (3 types of law)

Answer 1

Constitutional law
Statutes or acts
Case or common law

Question 2

Legal Framework for employment

Answer 2

HR laws are statutory, but considered QUASI-CONSTITUTIONAL

Regulatory regime
- Made by government, includes Human Rights’

Common law regime
- Judge-made law (including torts and contracts)

Collective bargaining regime

Question 3

Types of Discrimination (DABS away from it)

Answer 3

Direct
- Rule, practice, preference, or restriction that on its face treats a person differently or unequally based on a prohibited ground
I.e. married man wanted for…

Adverse effect
- Rule, practice, preference, restriction tat seems neutral, but inadvertently or indirectly operates in a manner that discriminates
I.e. you must be 5’10” to apply

By association
- Association, relationship, dealing with a person protected under Cose
I.e. parent of child with disability passed over for promotion

Systemic
- Unintentional discrimination arising from pattern of behavior that is rooted in established stereotypes, attitudes, and value systems that perpetuates the relative disadvantage of a protected group
I.e. business done on golf course

Question 4

OHRC: Defenses to Prima Facie Discrimination

Answer 4

1. BFOR
2. Special service organization
3. Nepotism (for or against)
4. Medical/personal attendants/homeworker/domestic (in-home only)
5. Special programs
6. Bona Fide pension or insurance plans

Question 5

Bona Fide Occupational Requirement

Answer 5

1. Rationally connected to job
2. Adopted in Good faith belief
3. Reasonably necessary to fill its’ work-related purpose
   - > Virtually impossible to accommodate without imposing undue hardship

Question 6

BFOR: Accomodation

Answer 6

based on dignity, individualization, inclusion

Question 7

BFOR: Undue Hardship

Answer 7

3 factors:

• cost
• availability of outside sources of funding
• health and safety requirements

Question 8

Duty to Accommodate

Answer 8

Employers have duty to accommodate
- Ends where employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future

Question 9

The Meiorin Test

Answer 9

1999

• Tawny Meiorin had been a successful forest-firefighter for 3 years
• New standards by the employer, one of which was to run 2.5km in 11 min
• Failed the test 4 times and was dismissed by employer

Issue: did the new standard discriminate against women, and if so was it justified as a BFOR?

SCC ruling: important because it determined that the distinction between intention and unintentional discrimination is not relevant

• > Found test was discriminatory (evidence showing most women can’t meet standard because they have lower aerobic capacity than men)
• > Found standard was NOT a BFOR

Failed aprt 3 because employer did not show that running was necessary or that an accommodation would impose undue hardship

Question 10

Job Accommodation Process

Answer 10

1. Can employee fulfill their existing job as presently constituted?
2. Can employee perform core aspects of existing job in modified form?
3. Can employee fulfill duties of another job in present form?
4. Can employee perform another job in modified form?