Human Rights in Employment Casebook, pp'310 362 and BC Human Rights Code

1
Human Rights in Employment Casebook, pp.3-10-
3-62 and BC Human Rights Code

• Overview of the Human Rights Code
• Fora where to bring the complaint of
  discrimination
• Human rights after BC v. BCGSEU (Meiorin)
• Union liability for discrimination
• Undue hardship
• Independent employer duty to investigate
• Financial cost
• Mandatory retirement
• Harassment (definition, rationale, and employer
  liability)

2
BC Human Rights Code

• Read Code and pp.3-10 to 3-14
• What are prohibited grounds of discrimination in
  employment? (s.13)
• What is discrimination?
• Exemptions and Special programs (s.42)
• Enforcement (ss.22-32)
• Remedies (s.37)

3
BC Human Rights Code

• Complaint must establish a prima facie case of
  discrimination on a prohibited
• Onus shifts to employer to establish bfoq which
  includes a duty of accommodation up to undue
  hardship or to establish special program or
  employment
• Remedies
• make whole for individuals and mental anguish
• - remedy past and prevent future affirmative
  action

4
Where to Go if Complaint of Discrimination?

• Non-union employees
• If only complaint is discrimination go to Human
  Rights Tribunal . No common law action of
  discrimination Seneca College v. Bhadauria
  (1981 SCC) p. 3-11.
• If separate common law action (wrongful or
  constructive dismissal for e.g.) then
  discrimination can be a collateral issue that is
  raised in and addressed by court Keays v. Honda
  (2006 Ont. C.A.).

5
Where to go?

• Unionized employees
• Grievance arbitration jurisdiction of arbitrators
  to interpret and apply employment-related
  legislation. In Parry Sound (SCC 2003) the
  arbitrator was required to apply Human Rights
  Code.
• The Tribunal may defer a complaint if could be
  more appropriately dealt with in another
  proceeding (BCHRC s. 25(2) or dismiss the
  complaint if its substance has been appropriately
  dealt with in another proceeding (s.27(1)(f)) .

6
Direct v. Adverse Effect Discrimination

• Direct standard discriminatory on its face
• Honest good faith
• Reasonably necessary and does not place
  unreasonable burden on those to whom it applies
• Adverse effect facially neutral standard
  discriminates in effect
• Rational connection between job and standard
• Individual cannot be accommodated without undue
  hardship

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BC v. BCGSEU 1999 SCCThe Unified Approach 3-14
to 3-24

• Abolishes distinction between direct and adverse
  effect discrimination
• Substitutes unified approach for determining
  whether discriminatory standard is bfor
• 1. Adopted for purpose rationally connected to
  performance of job
• 2. Adopted in good faith
• 3. Standard reasonably necessary to accomplish
  that purpose impossible to formulate standard
  that will accommodate employees sharing
  characteristic of complainant without imposing
  undue hardship on employer

8
Ramifications of BC v. BCGEU

• Accommodation for difference must be built into
  standard
• Challenged male employment norm
• Onus on employer both to establish accommodation
  in standard and individualized accommodation up
  to undue hardship
• Undue hardship contextual determination

9
Union Liability for Discrimination (p. 314)

• Renaud (1992 S.C.C.) -union can be liable for
  discrimination
• 1. by participating in the formulation of a work
  rule that has a discriminatory effect, or
• 2.for refusing to accommodate employee/union
  member by insisting on upholding collective
  agreement
• Although he test of undue hardship applies to a
  union, it will often be met by showing a of
  prejudice to other employees if proposed
  accommodating measures are adopted.
• Question
• Should unions be responsible for discrimination
  when they have attempted to change the collective
  agreement?

10
Undue Hardship Renaud 3-28

• More than de minimis standard
• Question of fact that depends on the
  circumstances of the case
• From Central Alberta Dairy Pool financial cost,
  disruption of collective agreement, problems of
  moral, interchangeablility of workforce and
  facilities. The size of the employer is a factor
  and so to are health and safety issues
• The search accommodation is a multi-party
  inquiry. Along with the employer and the union
  there is also a duty on the complainant to assist
  in securing an appropriate accommodation.

11
Is there an independent employer duty to
investigate the nature of employees disability?

• Conte v. Rogers Cablesystems 1999 C.H.R.D.
  p.3-36
• At the very least the employer is required to
  engage in an examination of the employees
  current medical condition, the prognosis for
  recovery and the employees capability for
  alternative work.
• Oak Bay Marina2002 BCJ (BCCA)
• None of the authorities impose a process of
  investigation on an already informed employer. If
  the question of accommodation is to be approached
  with some common sense, it seems that the
  employers as well as the complainants
  circumstances would have to be considered
  carefully in imposing such an obligation

12
Undue Hardship and Financial Cost

• How should adjudicators consider the costs of
  accommodating employees?
• Onus on employer more than de minimis
• Ford Motor Company 2002 Ont. S.C. p.3-40
• Private sector employer tribunal very
  deferential to Fords evidence re costs. Note,
  employees became members of a religious faith.
• Newfoundland v. NAPE 2004 SCC. P. 3-44
• Public sector wage restraint legislation
  canceling pay equity payment s in collective
  agreements a violation of equality rights in
  Charter. However, justified in s. 1 Courts
  should be deferential to fiscal crisis of
  government.

13
Mandatory Retirement, p.3-46

• Mandatory retirement policies permit employers to
  terminate without notice employees once they
  reach a specific age. Typically, they have been
  permitted by age-related or retirement related
  exemptions in human rights legislation. See the
  definition of age in the BC Human Rights Code
  s.1 age is 19 to 65.
• Mandatory retirement policies were established in
  the 1950s and 1960s along with employer-based
  pension plans.

14
Current Context

• Aging population
• Greater longevity
• Shift from defined benefit to defined
  contribution pension plans
• Gradual transition to retirement
• Later entry into employment.
• Labour shortage

15
The Debate over Mandatory Retirement

• In favour of mandatory retirement
• Need for defined benefit pensions
• Provide young workers with access to good jobs.
• Support early age for access to pensions.
• Against mandatory retirement
• Discriminatory
• Promotes poverty amongst elderly, particularly
  women and new immigrants

16
Charter and Mandatory Retirement, p.3-47

• In McKinney and three other cases the SCC upheld
  human rights exemptions that permitted mandatory
  retirement on the ground that they were
  demonstrably justified limitations on equality
  rights.
• Note, for the Charter to apply directly, the
  impugned action must be public.
• In Greater Vancouver Regional District Employees
  Union the BCCA indicated that it was time to
  reconsider whether mandatory retirement was
  justified.

17
Human Rights Code (Mandatory Retirement
Elimination) Amendment Act

• See the course website this bill has received
  first reading
• It would redefine age as 19 years or over.
• Thus, mandatory retirement policies that are
  identified by employers are age discriminatory
  and prohibited under the Human Rights Code.
• NB a poll conducted in January 2007 indicated
  that over 61 per cent of people in BC opposed
  mandatory retirement.

18
Human Rights Code (Mandatory Retirement
Elimination) Amendment Act

• Note the proposed s.41(2) Nothing in this Code
  prohibits a distinction on the basis if that
  distinction is permitted or regulation by any
  other Act or regulation.
• Impact permits statutorily mandated retirement
  schemes police, firefighters and statutory
  schemes with age-related benefits such as workers
  compensation.

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Some facts re Retirement

• The average age of retirement in Canada is 62
• University professors, doctors and other similar
  employees have led the campaign against mandatory
  retirement.
• Since mandatory retirement was abolished in 1987
  in the US, the average retirement age has
  increased by 2 years. The age for eligilibilty
  for old age pension was raised by two years.
• Quebec abolished mandatory retirement 20 years
  ago and the age for eligibility to the Quebec
  pension Plan has not been increased since then.
• Mandatory retirement policies are almost
  invariably part of a collective agreement or
  personnel policy associated with good jobs and a
  pension.
• Vulnerable employees in low paid jobs do not have
  retirement policies.

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Harassment, p.3-49

• Definition of sexual harassment
• Mahmoodi v. Dutton
• Unwelcome sexual conduct on an objective basis.
  Would a reasonable person know that the conduct
  in question was not welcome?
• There is no obligation on complainant to
  expressly object to the conduct unless the
  respondent would reasonably have no reason that
  it was unwelcome.

21
Rationale for prohibiting sexual harassment

• Janzen v. Platy Enterprises 1989 SCC, p.3-51
• Sexual harassment in the workplace may be
  broadly defined as unwelcome conduct of a sexual
  nature that detrimentally affects the work
  environment or leads to adverse job-related
  consequences for the victims of the harassment.
• Sexual harassment has to do with abuse of power
• Sexual harassment is likely to be gendered
  because of the power relations in the workplace
• NB the prohibition against discrimination on
  specified ground also prohibits harassment on
  those grounds.

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Employer Liability for Harassment

• Robichaud v. Canada 1987 SCC, 3-54
• Broad remedial approach to interpreting human
  rights legislation
• The goal of human rights legislation is to
  eliminate discrimination.
• Employers are vicariously liable for the sexually
  harassing conduct of supervisors who harass
  workers.
• Employers are in a position of control and they
  an take action to remove undesirable conditions.

23
Hinds v. Canada Employment and Immigration
Commission

• Should the employer be help responsible for
  racial harassment where someone used the internal
  mail system to leave racially harassment with
  complainant?
• No follow up to complaint.
• Did not follow harassment procedures.
• Award 4,000 for damage to dignity