Human Resources Management &
Labour Relations
Lucy Djelalian Pepper
Commerce 2BC3
Legal Issues in HRM
Legal dimension to many HRM systems
• Recruitment/Selection
• Human rights legislation
• Compensation
• Employment equity
• Dismissal
• Employment standards
• Pay equity
• Health & Safety
• H&S legislation
• Union issues
• Labour legislation
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Canada’s Legal Framework for HRM
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What laws apply?
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Federal laws apply to federally regulated organizations
• e.g. Canada Labour Code (CLC)
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Provincial (or territorial) laws apply to provincially (territorially)
regulated organizations
• E.g. Employment Standards Act (ESA)
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Human Rights Legislation
Prohibits discrimination in employment and in the provision of
goods and services
° 2 levels of legislation
• Federal - Canadian Human Rights Act (CHRA)
• Provincial - Ontario Human Rights Code (OHRC)
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Prohibited Grounds of Discrimination
Definition: Restriction or preference based on a prohibited ground that results in
unequal treatment/opportunity
• Race or colour
• Sex/gender, sexual orientation,
gender identity
• Ethnic or national origin
• Marital status, Family status
• Creed or religion
• Age
Examples of Prohibited Grounds:
• Physical or mental disability
Discrimination
Direct (Intentional) Discrimination
• Employment practice that on its face discriminates on a prohibited
ground
• The deliberate use of prohibited grounds in employment decisions
° Examples
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Discrimination
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Indirect (Adverse effect) Discrimination
• Employment practice that results in discrimination against protected
group, even if neutrally intended
• Focus on the impact, not intent
• Examples:
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Case Study: O’Malley v. Simpson-Sears Ltd.
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Lower courts sided with employer
Grounds: This was not intentional discrimination
Supreme Court ruled it was adverse effect discrimination
Not intentional, but had discriminatory effect
Could have accommodated employee
Ordered to pay lost wages due to discrimination
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Is All Discrimination Illegal?
No
° For example, hiring involves discrimination
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Key Questions
• Is discrimination on the basis of prohibited grounds?
• If yes, is there a bona fide occupational requirement (BFOR)?
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Examples of Bona Fide Occupational
Requirements
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Religious schools may hire only teachers of a particular faith
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Requiring adequate vision for airline pilots, transit drivers
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In advertising, manufacturer of women’s clothing can hire female
models
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Theatrical productions & hiring actors
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Criteria to Establish a BFOR?
Is not something an employer “applies for”
° Can seek legal advice or consult precedents
° Complainant must 1st establish that a case of prima facie
discrimination exists
° Defendant must prove on a balance of probabilities that the
discriminatory standard is a BFOR
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Case Study: Meiorin Supreme Court Case
- British Columbia*
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Court sided with complainant
BC government had failed to establish the fitness requirement as a
BFOR
Lack of evidence showing this standard was required for job or that
same aerobic capacity was appropriate for both men and women
Ordered reinstatement of Meiorin and 5 years back pay
Video: https://www.youtube.com/watch?v=XMk_aqzOQYs
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*(Public Service Employee Relations Commission) v. B.C.G.S.E.U. (1999)
Criteria Used to Assess BFOR
Is the standard rationally connected to the performance of the job?
2. Was the standard established in an honest and good faith belief that
it was necessary to accomplish this purpose (as per #1)?
3. Is the standard reasonably necessary to accomplish its purpose?
a. Must show it is impossible to accommodate employees without
imposing undue hardship on employer
1.
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Reasonable Accommodation
Employer ‘s duty to take reasonable steps to accommodate an
individual to avoid discrimination and provide for equal opportunity
° Related to needs of those with disability, older workers, workers of
religious faith, etc.
° Duty to accommodate does not apply if accommodation will cause
employer “undue hardship”
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What Constitutes Undue Hardship?
Burden is on employer to show data to support undue hardship
° May be a variety of considerations
• Financial cost
• Significant disruption of collective agreement – although,
agreement may need to change
• Health and safety risk
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Reasonable Accommodation
Employer has responsibilities
1. Understand the need for accommodation
2. Explore options for accommodation
3. Determine feasibility vs undue hardship
° Failure to consider accommodation can be violation of the legislation
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Examples of Reasonable
Accommodations
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Making existing facilities accessible
Job restructuring; part-time or modified work schedules
Acquiring or modifying equipment
Changing tests, training materials, or policies
Providing qualified readers or interpreters
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Remedies for Human Rights Violations
Early settlement, conciliation agreement, or tribunal decision
° Goal is to restore opportunities that were denied victim, stop the
discriminatory practice in order to prevent future discrimination
° Not punitive
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Examples: Meiorin and O’Malley Cases
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Harassment
• Verbal or physical conduct that is unwelcome, and is related to a
prohibited ground
• Offensive behaviour related to employee’s sex, race, religion, etc.
• May include verbal abuse, display of offensive material, unwelcome
remarks, innuendo, etc.
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Sexual Harassment
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Unsolicited or unwelcome sex- or gender-based conduct
• Creates “hostile work environment” or has adverse employment
consequences for target
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Types of Sexual Harassment
Gender harassment
• Behaviours that express hostile/negative views of men/women,
sexual orientation
° Unwanted sexual attention
• Unwanted behaviors aimed at achieving sexual co-operation
(sexually suggestive comments, leering, etc.), but not tied to jobrelated consequences/promises
° Sexual coercion (quid pro quo)
• Unwanted behaviours aimed at achieving sexual co-operation, tied
to job-related consequences/promises
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Is it Sexual Harassment?
What if…?
1. Respondent doesn’t know that the behaviour is unwelcome?
• Yes, if behaviour is “expressly or implicitly known by the
respondent to be unwelcome”, then it is harassment
2. The harassment stops when a person complains?
• Yes, if the complaint leads to negative employment
consequences or other retribution, then it is harassment
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Is it Sexual Harassment?
What if…?
3. The target cooperates?
• Yes, it would still be considered harassment if the cooperation is
due to employment-related threats or promises
4. The comment or behaviour was intended as a joke?
• The test is whether it creates a hostile or poisoned work
environment
• Using the “reasonable person” standard
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Case: Robichaud v. The Queen (1987)
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Bonnie Robichaud was a lead hand at Air Defence Command Base in
North Bay, Ont.
• In 1980, alleged harassment by her supervisor (Brennan)
• Sexual encounters had taken place
• HR Tribunal dismissed the harassment complaint
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Review Tribunal overturned, finding sexual harassment
• Evidence of coercion, threats
• Ruled both Brennan and DND were liable
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Case: Robichaud v. The Queen (1987)
Court of appeal – partially overturned
• Agreed than harassment had occurred, but set aside the employer’s
responsibility
° Supreme court overruled appeal court
• Ruled that employer shares responsibility for actions of supervisor
• Supervisor is agent of the employer; authority comes from employer
• “…only an employer can remedy undesirable effects of
[harassment]; only an employer can provide the most important
remedy—a healthy work environment”
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