Human Resource Management B8204: Understanding the Legal Environment

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Human Resource Management B8204 Understanding
the Legal Environment

• Thursday January 19th, 2006

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Agenda

• Understanding the Legal Environment
• Chapter 2 (pp. 38-54)
• Butler (1997)
• Sexual Harassment
• Peirce, Smolinski, Rosen (1998)
• Federal, provincial and territorial governments
  set limits on HRM
• Need to be proactive about legal requirements
  rather than just merely maintaining compliance
  with legislation

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Our Legal Environment
All human beings are born free and equal in
dignity and rights (Article 1, the Universal
Declaration of Human Rights, December 1948,
United Nations). All individuals should have an
equal opportunity to make for themselves the
lives that they are able and wish to have,
consistent with their duties and obligations as
members of society, without being hindered in or
prevented from doing so by discriminatory
practices based on race, national or ethnic
origin, colour, religion, age, sex, sexual
orientation, marital status, family status,
disability or conviction for an offence for which
a pardon has been granted (Section 2, the
Canadian Human Rights Act).
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Relevance

• This information is likely to go out of date
  faster than other areas
• Volatile area need current knowledge
• Grounds for discrimination in employment
• Competitive advantage
• Managers need to consider legal issues when
  making the following decisions
• Which employees to hire
• How to compensate employees
• What benefits to offer
• How to accommodate employees
• How and when to fire employees

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The Legal Framework for HRM
Federally Regulated (10) (Partial List)
Provincially Regulated (90)
.
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Legal Environment of HRM

• Perceived discrimination at work
• Increasing diversity in the workforce
• Increasing rate of legal activity related to
  personnel decisions
• Increased Litigation has resulted in
• Need for HRM expertise
• Evaluation of HR policies and practices
• Better HRM practices
• Legally defensible
• More effective

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Examples of Litigation

• Minimum test score required on SAT imposed by
  NCAA for college athletic eligibility thrown out
  unjustified disparate impact against
  African-Americans
• Many Canadian class action lawsuits for breach of
  employment-related obligations successful in last
  3 yrs
• 2.75 million to San Francisco State U.
  instructor after turned down for tenure
• Gibbs v. Battlefords and Dist. Co-operative Ltd.
  (1996) Disability benefits denied on the basis
  of nervous disorder mentally disabled employee
  entitled to same medical benefits others

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Overview of the Legal Context

• The Legal Framework for Employment Includes
• Common Law
• Constitutional Law
• Acts of Federal Provincial Parliament
• Contract Law
• Major forms of Employment Legislation Include
• Employment Standards Legislation
• Human Rights Code
• Employment Equity Laws
• Pay equity

• Legislation in Canada
• Charter of Rights and Freedoms
• Official Languages Act
• Employment Equity Act
• The Canadian Human Rights Act
• Personal Information Protection and Electronic
  Documents Act (PIPEDA)
• Employment Standards
• Pay Equity Act

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Fairness The Intended Purpose

• Most employment law represents an ongoing
  attempt to determine and enforce standards that
  reflect the consensus on what it means to be fair
  or equitable as an employer.

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Government Impact

• Government impact on HR
• Huge impact on HR policies and procedures
• Also helps make HR more important within the
  organization
• Passing of laws (e.g., Canada Labour Safety Code
  of 1968)
• At a minimum employers need to comply with legal
  requirements for their jurisdiction
• Impact
• HR must stay current regarding regulations and
  laws
• HR must ensure company is compliant
• HR must ensure optimal workforce (through hiring,
  training, etc.)

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Charter of Rights and Freedoms

• Found in the Constitution Act of 1982
• Provides some 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 and
• Freedom of association.
• Rights and freedoms subject only to such
  reasonable limits prescribed by law as can be
  demonstrably justified in a free and democratic
  society (Section 1 of Charter).

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Charter of Rights and Freedoms

• Charter provides protection in specific areas
• Highlighting the right to live and seek
  employment anywhere in Canada and equality
  rights for all individuals
• The Right to Work
• Two decisions upheld Section 15(c)- the right to
  work excludes mandatory retirement from this.
• In other words, mandatory retirement due to age
  is not considered age discrimination by the
  Supreme Court of Canada provided that this
  discriminatory practice be reasonable and
  justifiable.

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Human Rights Legislation

• Provides equal employment opportunities without
  regard to peoples race, national or ethnic
  origin, colour, religion, age, sex, sexual
  orientation, marital status, family status,
  disability or conviction for an offence for which
  a pardon has been granted.
• The biggest legislative impact on HR.
• Impacts all aspects of HRM planning, recruiting,
  selection, training, compensation, and labour
  relations.
• Two levels of legislation
• Federal Canadian Human Rights Act (March 1978)
• Provincial

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Prohibited Grounds of Discrimination
Race or colour
Pardoned conviction
National or ethnic origin
Canadian Human Rights Act
Disability
Religion
Marital and family status
Age
Sex, sexual orientation
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Discrimination

• Direct (Intentional) Discrimination
• Blatant Deliberate use of race, religion or
  other prohibited criteria in employment decisions
• Sometime permitted bona fide occupational
  qualifications (BFOQ)
• Indirect (Systemic) Discrimination
• Employment criteria that have the effect of
  discriminating on prohibited grounds but are not
  used with the intent to discriminate.
• E.g., stairway entrance only internal
  hiring/word-of-mouth organizational culture
  evaluation systems based on male-dominated
  aspects (e.g., strength)
• Much more difficult to identify and correct.

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Discrimination

• Duty to accommodate
• Requirement that an employer must accommodate the
  employee to the point of undue hardship.
• Undue hardship
• Not formally defined
• Factors considered financial cost, disruption of
  a collective agreement, problems of morale of
  other employees, and interchangeability of
  workforce and facilities.
• Reasonable accommodation
• Adjustments in job content and working conditions
  that an employer may be expected to make in order
  to accommodate a person protected by human rights
  provisions.
• Allow employees with special needs to perform
  their job effectively.

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Bona Fide Occupational Requirements

• A job requirement that legally overrides a human
  rights protection.
• BFOQ Criteria
• Is the standard rationally connected to the
  performance of the job?
• Was the standard established in an honest belief
  that it was necessary to accomplish the purpose
  identified in stage one?
• Is the standard reasonably necessary to
  accomplish its purpose?

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In-Class Exercise

• Decide which cases are illustrations of
  discrimination and which cases are not (due to
  BFOQ).
• Support your decision.

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Human Rights Complaints
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Enforcement and Retaliation

• Employers may not retaliate against anyone who
  exercises their rights as provided by the Human
  Rights Act. (It is a criminal act to do so.)
• Includes filing complaint, testifying
• Enforcement
• Canadian Human Rights Commission (CHRC) enforces
  the CHRA
• Received complaints investigator appointed to
  collect info. recase report submitted to
  commission with recommendation of substantiated
  claim (or unsubstantiated claim). Compensation
  can be awarded.
• Obstruction of investigation or tribunal,
  criminal offense, jail time and/or fine (50,000
  for organization 5,000 for individual)

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Remedies for Violations

• Stop the discriminatory practice.
• Restore the rights, opportunities, and privileges
  denied the victim.
• Compensate the victim for wages lost and any
  expenses incurred as a result of the
  discriminatory practice.
• Compensate the victim for any additional cost of
  obtaining alternative goods, services, facilities
  or accommodation as a result of the
  discriminatory practice.
• Develop and implement employment equity programs
  to equalize opportunity for certain groups that
  have suffered from discriminatory practices in
  the past.
• (P. 189)

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Equity in the Workplace

• Impacts every aspect of HRM
• Employment Equity Programs
• Developed by employers to undo past employment
  discrimination or to ensure equal employment
  opportunity in the future. (p.191)
• Primarily a federal level provincial level is
  usually voluntary
• Employment Equity
• Federal Employment Equity Act
• Federal Contractors Program
• Pay and Equity
• Equal pay for the same or similar work
• Equal pay for work of equal value

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Pay Equity

• Equal pay for work of equal value.
• Women earn on average 0.85 for every 1.00 that
  men earn (Statistics Canada, 1999).
• Same job, different pay
• Different jobs (of equal value), different pay
• Reasons
• Work experience
• Education
• Major field of study
• Occupation and industry
• Very costly to rectify
• Federal government (library science ees)
  2.4million
• Bell Canada 400 to 500 million
• Federal government / Treasury Board 3.5 billion
  (230, 000 ees)

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Other Legal Issues

• Canada Labour Code (1907, modified 1971)
• Unions
• Hours of work and overtime regulations
• Canada Labour Code std work day 8hr std work
  week 40hr, OT 1.5x reg. pay
• Occupational health and safety
• Weekly rest day
• Dismissal
• Common Law reasonable notice immediate
  dismissal if compensated (severance pay)
• Minimum wages
• Provincial and Federal boards set this
• Workplace Hazardous Material Information System
  (WHMIS)
• Regulates the handling of hazardous materials

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Harassment

• Canadian Human Rights Act also prohibits
  harassment, such that it is a discriminatory
  practice.
• Harassment
• Occurs with a member of an organization treats
  an employee in a disparate manner because of that
  persons sex, race, religion, age, or other
  protective classifications

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Sexual Harassment

• What is sexual harassment?
• How do you measure it?
• Who does it?
• Why do people do it?
• What are the consequences?
• Lessons learned?

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Sexual Harassment

• Peirce, Smolinski, Rosen (1998). Why sexual
  harassment complaints fall on deaf ears. AME.
• Factors contributing to managerial and
  organizational inaction fall prey to deaf ear
  syndrome
• Inadequate policies and procedures
• Managerial reactions and rationalizations
• Inertial tendencies

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Sexual Harassment

• What is it?
• Generate a full and comprehensive list of what we
  think it is
• What is the underlying feature (ie can we
  provide a unifying definition?)
• How do we Measure it?
• Frequency?
• Two different questions, two different answers
• Severity or impact?

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Sexual Harassment

• Who does it?
• Primarily men
• A considerable amount of peer-based harassment
• Why do they do it?
• Social structure
• Power imbalance (eg gender distribution in
  groups)
• Personal psychopathology
• Obsession
• Rape and Sexual harassment myths
• Organizational factors

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What are the Consequences?

• Personal?
• Organizational?
• And new avenues for research
• Vicarious?
• Behavioral responses (e.g., absenteeism and
  turnover, grievances, workplace violence)

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For Next ClassManaging Workplace Diversity

• Kossek Zonia (1993)
• Gilbert Ivancevich (2000)