Human Rights

1
Human Rights Harassment Prevention

• CFPSA Regional Morale and Welfare NPF Conference
• 2004

2
Canadian Human Rights Act

• Purpose (Section 2 of CHRAct)
• Promote elimination of discrimination
• Educate the public about their rights and
  responsibilities
• Provide redress to individuals who have been
  unlawfully discriminated against
• (remedial and not punitive)
• Promote greater economic social equality

3
Canadian Human Rights ActGrounds (Section 3)

• National/Ethnic Origin
• Colour
• Religion
• Age
• Sex (including pregnancy childbirth)
• Race
• Sexual Orientation
• Marital Status/Family Status
• Disability (S. 25, overt covert)
• Conviction (if a pardon has been granted)

4
Canadian Human Rights ActDiscriminatory Practices

• Employment
• Goods, Services Facilities or Accommodation
  customarily available to the public
• Commercial Premises/Residential Accommodation
• Employment Application Advertisements
• Employee Organisations
• Equal Wages
• Publication of Discriminatory Notices

5
Canadian Human Rights ActDiscriminatory
Practices-continued

• Differences in wages between male and female
  employees if performing same work based on
• Skill
• Effort
• Responsibility
• Working conditions
• Not discriminatory if differences are based on
  prescribed reasonable factors.
• Cant reduce wages to equalize (S.11(6))

6
Canadian Human Rights ActExceptions

• Bona fide Occupational Requirement (BFOR-
  employment)
• Bona fide Justification (BFJ-service)
• Differences in wages between men women
  justified if based on
• Different performance ratings
• Seniority
• Red circling
• Regional wage rates
• Internal labour shortages surpluses

7
Canadian Human Rights ActExceptions-continued

• Maternity child care (Section 15 (f))
• Age guidelines- e.g.lower transportation fares
  for children seniors
• Refuse employment - if individual did not reach
  minimum age of employment
• Mandatory retirement - only if individual is no
  longer capable of performing the essential duties
  of the position
• Special Programs (Section 16)
• Accommodation Plans
• Terms conditions of a pension plan

8
Canadian Human Rights ActOverview

• Prohibits
• Discrimination
• Harassment
• Retaliation (Section 14.1 and Section 59)

9
Canadian Human Rights ActOverview

• Provides for
• Recognition of BFOR or BFJ
• Reasonable Accommodation (S.15(2))
• Employment Equity Special Programs(Section 16)
• Vicarious Liability (S. 65 - clarify)
• Certain Exceptions

10
Canadian Human Rights Act

• Discrimination (definition, grounds, practice)
• Direct or Indirect (adverse) impact
• Harassment
• Sexual Harassment (unwelcome, abusive, can be one
  time or a course of conduct)
• by a Coworker, Supervisor, or as a reprisal for
  refusal to comply
• Reasonable Person test
• Sexual Assault
• Poisoned Environment
• Time Limit (ordinarily 1 year)

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Role of NPF Human Rights Harassment Prevention
Advisor

• Provides information and advice on Human Rights
  and Harassment matters to CEO and President, to
  CFPSA
• Registrar of all NPF complaints
• Represents CFPSA at Canadian Human Rights
  Tribunal hearings
• Manages the Human Rights Program

12
Role of Human Rights Harassment Prevention
Advisor continued

• Develops Policies and Procedures on Human Rights
  and Harassment matters
• Provides education and awareness sessions to
  management staff
• Reviews organisational policies and procedures to
  ensure they are in compliance with Canadian
  Human Rights Act

13
Role Of Human Rights Investigations Manager

• Mediates complaints (non-punitive)
• Manages Human Rights projects (research on
  issues)
• Investigates complaints (criteria)
• Provides advice to management staff on rights
  and responsibilities
• Assists HRHPA with Education Awareness of
  Human Rights Harassment issues

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Who to file a complaint with?

• Asfia Sultan
• Human Rights Harassment Prevention Advisor
  (HRHPA)
• 245 Cooper Street, Ottawa,
• ON K2P 0G2 ( 1 800 506 6679 )
• Phone [phone] or 996 3866
• Secure Fax [phone]
• E-mail sultan.asfia_at_cfpsa.com
• http//www.cfpsa.com/en/services/hrservices/human_
  e.asp

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SCENERIO 1 Two young women were employed as
waitresses at a restaurant. Both alleged the
cook continuously harassed them by grabbing their
legs, bottoms, breasts and genitals. When they
resisted, he told them to shut-up or hed fire
them.   One of the complainants complained to
the owner who responded by telling the
complainant that he was not able to do anything
about the cooks conduct. A short while later
that complainants employment was terminated.
  The second complainant also complained to the
owner but found him unsympathetic and unwilling
to address the problem as well. Both the cook
and the owner yelled at the second complainant in
front of customers and eventually fired her upon
the pretext of a customer complaint.   The MHRC
conducted an investigation into the matter and
found evidence to support the complainants. The
owner stated that he did not consider the cooks
conduct to be discriminatory nor did he consider
himself to be liable. The cook, by this time,
had left Canada and had returned to his
homeland.
16
THE SOLUTION The Adjudicators decision, which
supported the two complaints, was appealed to the
Supreme Court of Canada (SCC) and upheld. In
its reasoning the SCC defined Sexual Harassment
as follows

• It is unwelcome
• It is of a sexual nature
• It detrimentally affects the work environment
• It represents an abuse of economic and sexual
  power
• It is demeaning and a profound affront to a
  victims dignity and self respect
•  In addressing the matter of liability the SCC
  pointed out that
• (The cooks) opportunity to harass the
  appellants sexually was directly related to his
  employment position as the next in line in
  authority to the employer. (The cook) used his
  position of authority, a position accorded him by
  the respondent, to take advantage of the
  appellants. The authority granted to (The
  cook), both through his control over food orders
  and work hours, and through his purported ability
  to fire waitresses, gave him power over the
  waitresses. It was the respondents
  responsibility to ensure that his power was not
  abused. This it clearly did not do, even after
  the appellants made specific complaints about the
  harassment. So it is liable for the actions of
  (The cook).
• The respondent was ordered to pay the complainant
  lost wages and general damages.

17
SCENERIO 2 A male Clerk worked for CF/DND.
He was eligible for promotion. His wife also
worked for CF/DND as a Clerk. She filed a
sexual harassment complaint against a superior
officer. The male Clerk, attempted to assist his
wife in various ways to deal with her complaint.
  The male Clerk complained that he was
subjected to various threats from superior
officers and that his promotional opportunities
were affected because of his involvement with his
wifes sexual harassment complaint.   The
complainant alleged that a Captain told him on
one occasion that he would remain at his present
rank for a very long time. On another occasion
a Colonel told him that if the complainant
continued to interfere in his wifes case, it
would destroy his career.
18
THE SOLUTION The Canadian Human Rights
Tribunal, who ruled on the case, found that based
upon a balance of probability, evidence supported
the threats the complainant had been subjected
to, occurred as he had alleged.   The Tribunal
also found that the threats represented
differential discriminatory treatment toward the
Clerk because of his Marital Status one of the
protected grounds included the CHR Act. In
their decision, the Tribunal noted that any
reliance upon an individuals marital status,
regardless of whomever they might be married to
specifically, was discriminatory. The ruling
determined that the complainant had therefore
been subjected to offensive comments.   There was
no evidence, however, that the remarks he had
been subjected to had negatively influenced the
complainants promotional opportunities.   Nonethe
less, the complainant was awarded general damages
in the amount of 3,000.00 (with interest) to
compensate him for damage to his feelings. High
command was also ordered to issue a written
apology to him within 30 days.
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SCENERIO 3   A series of fitness tests for
frontline forest fire fighters was introduced by
a provincial government fire fighting department.
The tests were introduced in response to a
coroners report that recommended, for safety
reasons, all frontline fire fighters be
physically fit.   One of the fitness tests
adopted established a single uniform fitness
standard. That standard stated that all
firefighters must meet an aerobic requirement by
completing a 2.5 km run in 11 minutes or less.
  One female firefighter, who had been with the
department for 3 years and whose employment
record had been satisfactory, completed the 2.5
km test run. She took 49 seconds longer than
allowed, however, to complete the run. The
fire department then fired her.   The complainant
grieved her dismissal and won.
20
THE SOLUTION After appealing the provincial
arbitrators decision to the Supreme Court of
Canada (SCC), the SCC ruled against the employer.
The SCC established a 3 - point test for
determining whether a standard should be a bone
fide requirement or not. Under this test an
employer must establish that the standard

• Was adopted for a purpose rationally connected to
  the job.
• Was adopted in an honest and good faith belief it
  was necessary to fulfill a
• legitimate purpose.
• Was necessary to accomplish that purpose and then
  demonstrate it was not
• possible to accommodate without undue hardship
•  - Applying the test to this case, the employer
  failed to demonstrate that the
• standard was necessary because they failed to
  produce evidence completion
• of the aerobic test demonstrated an ability
  to safely perform the actual duties
• of the job.
• - The employer also failed to demonstrate it was
  impossible to accommodate
• without undue hardship.
• The complainant was reinstated and compensated
  for all lost wages
• and benefits.

21
SCENERIO 4 The complainant, a 20 - year old
female, was employed as a secretary to the
proprietor of a private Corporation. Over the
course of her employment, which lasted
approximately one month, the complainant alleged
that she was subjected to unwelcome and
persistent conduct consisting of sexual comments
and advances by her employer. The complainant
stated that her employer, a strong and aggressive
individual, bragged to her about other sexual
activities he had experienced previously with
other female employees.   Finally, one day the
complainants employer grabbed the complainant
and placed her against the wall, pressing his
body against hers, attempting to kiss her,
whereupon the complainant pushed herself free and
ran from the workplace. Upon returning to work
the next workday, the employer informed the
complainant that she was fired because he didnt
need her anymore.   The complainant, who
supported both her mother and sister on her
meager income, filed a complaint with the OHRC
who investigated the complaint and found a
pattern of evidence that clearly supported the
complainants allegations.  
22

•  
• T THE SOLUTION
• The respondent was ordered to pay the
  complainant lost wages as well as general damages
  and ordered to cease and desist his harassment of
  employees. In determining what criteria to
  use, in considering the appropriate quantum of
  general damages to award the complainant, the
  adjudicator developed the following list of seven
  factors
•  
•       (i) - The nature of the
  harassment, that is was it simply verbal or was
  it
• physical as well?
• (ii) - The degree of
  aggressiveness and physical contact in the
• harassment
• (iii) - The ongoing nature,
  that is, the time period of the harassment
  
• (iv) - The frequency of the
  harassment
•   (v) - The age of the
  victim
• (vi) - The vulnerability of
  the victim and
• (vii) - The psychological
  impact of the harassment upon the victim.