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

Question 1

Grouping Canadian Employment Legislation

Answer 1

• Policies, substance abuse testing, workplace violence
• Employment and Labour Standards
• Human Rights
• Privacy Legislation
• Legislative foundation in employment and labour settings

Question 2

Which Employment Laws Apply?

Answer 2

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

Three questions guide HR on which employment laws apply
- Question 1: Is the person an employee of the company or an independent contractor?
-Question 2: Is the organization provincially or federally regulated?
- Question 3: Is the employee unionized or non-unionized

Question 3

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

Question 4

2. Is the organization provincially or federally regulated?

Answer 4

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 5

3. Ia the employee unionized or non unionized?

Answer 5

Each province has its own employment standards act to 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 6

HR Responsibilities

Answer 6

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 their traditional roles of obtaining, maintaining, and retaining an optimal workforce (in light of laws and societal objectives

Question 7

Human Rights Legislation

Answer 7

Unlike employment laws, which impact a single HR activity at a time, human rights legislations 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 Canadian Charter of Rights and Freedoms

Question 8

The Charter of Rights and Freedoms

Answer 8

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 9

Infringements

Answer 9

“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 10

The Canadian Human Rights Act

Answer 10

A federal law prohibiting discrimination
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 11

Discrimination Defined
Dictionary

Answer 11

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

Question 12

Prohibited Grounds of Discrimination

Question 13

Direct Discrimination

Answer 13

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 14

Indirect (Systemic) Discrimination

Answer 14

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 favors seniority

Question 15

Harassment

Answer 15

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 16

Enforcement

Answer 16

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 17

The Employment Equity Act

Answer 17

Women, Persons with a disability, Aboriginal people and Visible minorities

Employers with 100+ employees under federal jurisdiction must develop and submit annual plans for removing employment barriers and promoting equity with members of these four groups

Question 18

Major Steps: Employment Equity Programs

Question 19

Pay Equity

Answer 19

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 20

Reverse Discrimination

Answer 20

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 21

Privacy Legislation

Answer 21

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 22

Workplace Policies

Answer 22

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 behaviourand 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 23

Types of HR Policies

Answer 23

• 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 24

Other Legal Challenges

Answer 24

• Canada LabourCode
• Dismissal
• Minimum wages
• Occupational health and safety
• Weekly day of rest
• WHMIS

HR is responsible for knowing and enforcing the laws and for developing policies to advise on acceptable behavioursand procedures to follow when issues arise

Question 25

Diversity, Equity, and Inclusion in Canadian Workplaces

Answer 25

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 26

Challenges for Diverse Workers

Answer 26

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 27

Strategic Importance of Diversity, Equity, and Inclusion

Answer 27

A combination of factors have fundamentally changed the way Canadian organizations work and who they employ

• Changing worforce
• Importance of Human Capital
• Increasing Role of Work Teams
• Diversity as a Competitive Advantage

Question 28

Diversity, Equity, and Inclusion Initiatives

Answer 28

Diversity, Equity, and Inclusion Initiatives
* HR and senior mgmt commitment to inclusion
* Communication, hiring, and reward structures promote inclusion

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

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