Copyright © 2011 Pearson Canada Inc. The Changing Legal Emphasis: From Compliance to Valuing Diversity Dessler & Cole Human Resources Management in Canada Canadian Eleventh Edition

Copyright © 2011 Pearson Canada Inc.2-2 Legal Framework For Employment Law In Canada constitutional law  Charter of Rights and Freedoms legislated Acts of Parliament  Income Tax Act….. regulations (for legislated Acts)  rules to aid interpretation of laws common law  judicial precedents contract law  collective agreements/employment contracts constitutional law  Charter of Rights and Freedoms legislated Acts of Parliament  Income Tax Act….. regulations (for legislated Acts)  rules to aid interpretation of laws common law  judicial precedents contract law  collective agreements/employment contracts

Copyright © 2011 Pearson Canada Inc.2-3 Multiple Legal Jurisdictions for Employment/Labour Law provincial/territorial employment laws govern 90% of Canadian workers federal laws govern 10% of workers in federal civil service, Crown corporations and agencies, transportation, banking and communications provincial/territorial employment laws govern 90% of Canadian workers federal laws govern 10% of workers in federal civil service, Crown corporations and agencies, transportation, banking and communications

Copyright © 2011 Pearson Canada Inc.2-4 Employment/Labour Standards Legislation establish minimum employee entitlements pertaining to:  wages, paid holidays and vacation  maternity, parenting and adoption leaves  bereavement and compassionate care leave  termination notice and overtime pay set limit on maximum number of work hours permited per day or week principle of equal pay for equal work establish minimum employee entitlements pertaining to:  wages, paid holidays and vacation  maternity, parenting and adoption leaves  bereavement and compassionate care leave  termination notice and overtime pay set limit on maximum number of work hours permited per day or week principle of equal pay for equal work

Copyright © 2011 Pearson Canada Inc.2-5 Legislation Protecting Human Rights Charter of Rights and Freedoms (1982)  guarantees fundamental freedoms to all Canadians  Section 15 guarantees the right to equal protection and equal benefit of the law without discrimination (in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) Charter of Rights and Freedoms (1982)  guarantees fundamental freedoms to all Canadians  Section 15 guarantees the right to equal protection and equal benefit of the law without discrimination (in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability)

Copyright © 2011 Pearson Canada Inc.2-6 Discrimination distinction, exclusion or preference based on a prohibited ground which nullifies or impairs a person’s rights to full and equal recognition and exercise of human rights and freedoms

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Copyright © 2011 Pearson Canada Inc.2-8 Types of Discrimination Prohibited Intentional direct differential/unequal treatment indirectly based on association Intentional direct differential/unequal treatment indirectly based on association Unintentional (constructive/systemic) apparently neutral policies have adverse impact on protected groups Unintentional (constructive/systemic) apparently neutral policies have adverse impact on protected groups

Copyright © 2011 Pearson Canada Inc.2-9 Requirement For Reasonable Accommodation adjustment of employment policies/practices so that no individual is:  denied benefits  disadvantaged in employment  prevented from carrying out a job based on prohibited grounds in human rights legislation e.g. work station redesign for wheelchair adjustment of employment policies/practices so that no individual is:  denied benefits  disadvantaged in employment  prevented from carrying out a job based on prohibited grounds in human rights legislation e.g. work station redesign for wheelchair

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Copyright © 2011 Pearson Canada Inc.2-11 Undue Hardship human rights legislation mandates employers must accommodate to point of ‘undue hardship’ the point where financial cost or health and safety risks make accommodation impossible human rights legislation mandates employers must accommodate to point of ‘undue hardship’ the point where financial cost or health and safety risks make accommodation impossible

Copyright © 2011 Pearson Canada Inc.2-12 Permissible Discrimination Bona Fide Occupational Requirement  justifiable reason for discrimination  based on business necessity for safe and efficient operations  intrinsically required by job tasks (eg. must have sight to drive a truck) Bona Fide Occupational Requirement  justifiable reason for discrimination  based on business necessity for safe and efficient operations  intrinsically required by job tasks (eg. must have sight to drive a truck)

Copyright © 2011 Pearson Canada Inc.2-13 Harassment unwelcome behaviour that demeans, humiliates, or embarrasses a person and that a reasonable person should have known would be unwelcome

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Copyright © 2011 Pearson Canada Inc.2-15 Sexual Harassment offensive or humiliating behaviour that is related to a person's sex, as well as behaviour of a sexual nature that creates an intimidating, unwelcome, hostile, or offensive work environment or that could reasonably be thought to put sexual conditions on a person’s job or employment opportunities

Copyright © 2011 Pearson Canada Inc.2-16 Sexual Harassment Sexual Coercion  harassment of a sexual nature that results in some direct consequence to the worker's employment status or some gain in or loss of tangible job benefits Sexual Annoyance  sexually related conduct that is hostile, intimidating, or offensive to the employee but has no direct link to tangible job benefits or loss thereof Sexual Coercion  harassment of a sexual nature that results in some direct consequence to the worker's employment status or some gain in or loss of tangible job benefits Sexual Annoyance  sexually related conduct that is hostile, intimidating, or offensive to the employee but has no direct link to tangible job benefits or loss thereof

Copyright © 2011 Pearson Canada Inc.2-17 Harassment Policies To reduce liability, employers should:  establish sound harassment policies  communicate such policies to all employees  enforce policies in a fair and consistent manner  take an active role in maintaining a working environment that is free of harassment To reduce liability, employers should:  establish sound harassment policies  communicate such policies to all employees  enforce policies in a fair and consistent manner  take an active role in maintaining a working environment that is free of harassment

Copyright © 2011 Pearson Canada Inc.2-18 Harassment Policies 1. have a clear workplace anti-harassment policy statement 2. information for victims 3. employees’ rights and responsibilities 4. employers’ and managers’ responsibilities 5. have clear workplace anti-harassment policy procedures 6. penalties for retaliation against a complainant 7. guidelines for appeals 8. other options such as union grievance procedures and human rights complaints 9. how the policy will be monitored and adjusted 1. have a clear workplace anti-harassment policy statement 2. information for victims 3. employees’ rights and responsibilities 4. employers’ and managers’ responsibilities 5. have clear workplace anti-harassment policy procedures 6. penalties for retaliation against a complainant 7. guidelines for appeals 8. other options such as union grievance procedures and human rights complaints 9. how the policy will be monitored and adjusted

Copyright © 2011 Pearson Canada Inc.2-19 Employment Equity federal Employment Equity Act based on Charter of Rights proclaimed in 1987, amended in 1995 protects women, visible minorities, persons with disabilities, Aboriginal peoples  removes employment barriers  promotes equality federal Employment Equity Act based on Charter of Rights proclaimed in 1987, amended in 1995 protects women, visible minorities, persons with disabilities, Aboriginal peoples  removes employment barriers  promotes equality

Copyright © 2011 Pearson Canada Inc.2-20 Employment Equity Designated Groups Women People with Disabilities Visible Minorities Aboriginals

Copyright © 2011 Pearson Canada Inc.2-21 Plight of the Four Designated Groups lower pay occupational segregation glass ceiling underutilization lower pay occupational segregation glass ceiling underutilization higher rates of unemployment underemployment low status jobs with little career growth potential

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Copyright © 2011 Pearson Canada Inc.2-23 Employment Equity Program Implementation Steps Step 3: Employment Systems Review Step 2: Data Collection and Analysis Step 1: Senior Management Commitment and Support Step 4: Plan Development Step 5: Implementation Step 6: Monitoring, Evaluation, Revising

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Copyright © 2011 Pearson Canada Inc.2-26 Diversity Management broader/more inclusive than employment equity a set of activities designed to:  integrate all employees in multicultural workforce  use diversity to enhance organization’s effectiveness broader/more inclusive than employment equity a set of activities designed to:  integrate all employees in multicultural workforce  use diversity to enhance organization’s effectiveness

Copyright © 2011 Pearson Canada Inc.2-27 Creating an Inclusive Environment top management commitment integration of diversity initiatives and talent management diversity training programs support groups top management commitment integration of diversity initiatives and talent management diversity training programs support groups critical relationship networks open dialogue management responsibility and accountability