Part 2: Staffing the Organization
Chapter 3: Legal Environment of
Equal Employment and Diversity
Prepared by Linda Eligh, University of Western Ontario
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Learning Objectives
After you have read this chapter, you should be able
to:
1. Introduce Canada’s legal environment and discuss the
Canadian Charter of Rights and Freedoms.
2. Discuss Canadian Human Rights Acts in various
jurisdictions and direct and indirect discrimination on
prohibited grounds.
3. Introduce the meaning of several prohibited grounds with
examples of court challenges.
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Learning Objectives
4. Describe the two types of sexual harassment and how
employers should respond to sexual harassment
complaints.
5. Discuss the employment standards acts, labour
relations legislation, and occupational health and
safety, and the requirements of each jurisdiction.
6. Discuss the issues surrounding employment equity and
pay equity
7. Define diversity management and discuss why it is
important.
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Canada’s Legal Environment
• Canada’s Legal Framework
Distinct and complex.
Comprised of two sets of laws governing workers in federal
or provincial and territorial sectors of the country:
10% of Canadian workforce (federal sector)
 Canada Labour Code
 Canadian Human Rights Act
90% of workforce (remaining non-federal sectors)
 Provincial Legislation
 Territorial Legislation
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Canada’s Legal Environment
CANADIAN CHARTER
OF RIGHTS AND FREEDOMS
 Federal law enacted in 1982 guaranteeing
the rights and freedoms of all Canadians
 Part of the Canadian Constitution (1982).
A set of laws containing the basic rules for
how Canada operates.
 Challenges to both the Charter and the
Constitution are handled in the courts.
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Charter of Rights and Freedoms
• Fundamental freedoms guaranteed:
 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
• Other rights protected by the Charter:
 Mobility rights, legal rights, equality rights, official
language and minority language education rights, and
rights of Aboriginal peoples of Canada.
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Charter of Rights and Freedoms
• Section 33 – “the notwithstanding clause”
Under “the notwithstanding clause”, Parliament or a
legislature can pass a law that is exempt from certain
sections of the Charter (i.e. the fundamental freedoms,
the legal rights or the equality rights.)
Used very rarely
 Example:
Quebec Government passed laws
requiring signs to be in French only.
Expires after five years.
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Human Rights
• Canadian Human Rights Legislation
 human rights acts or codes legislated to prohibit
discrimination on various grounds with respect to
employment, provision of goods, services and
facilities normally available to the public, and
accommodation.
• Two types of legislation:
 Canadian Human Rights Act
 covers
federally regulated employees who are 10% of
Canadian workforce
 Provincial and Territorial Human Rights Legislation
 covers
non-federally regulated employees (remaining 90%
of workforce)
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PROHIBITED GROUNDS
RACE
SEXUAL ORIENTATION
RELIGION
MARITAL STATUS
AGE
FAMILY STATUS
SEX
NATIONAL/ETHNIC ORIGIN
DISABILITY
CONVICTIONS
(PARDONS NOT GRANTED)
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What is discrimination?
Discrimination is any practice or standard that,
intentionally or not, has the effect of limiting the
opportunities available to certain individuals or
groups because of shared personal
characteristics such as race or colour, in a way
that perpetuates the view that they are less
capable, or are less worthy of recognition or
value.
- New Brunswick Human Rights Commission
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Types of Discrimination
• Direct Discrimination:
occurs when people are treated differently
(usually less favourably) based on a
prohibited ground.
• Indirect/Constructive/Adverse or
Systemic Discrimination:
occurs when people are treated differently
(usually less favourably) as a result of a
seemingly neutral policy or practice.
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Employer Requirements
• Bona Fide Occupational Requirement
(BFOR/Q)
a justifiable reason for discriminating against
a member of a designated group.
• Duty to Accommodate:
an employer’s legal duty to take reasonable
steps, in policies or conditions of work, to
accommodate an employee’s individual
needs.
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Harassment
Harassment: “…any unwanted physical or
verbal conduct that offends or humiliates you.
Such conduct can interfere with your ability to
do a job or obtain a service.”
(Canadian Human Rights Code)
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Harassment
• Harassment is a type of discrimination
that takes many forms:
 Threats, intimidation or verbal abuse
 Unwelcome remarks or jokes
 Display of sexist, racist or other offensive
pictures/posters
 Sexually suggestive remarks or gestures
 Inappropriate physical contact (touching, pinching
etc.)
 Leering or whistling
 Outright demands for sexual favours
 Physical assault (including sexual assault)
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Harassment
• Sexual Harassment
 unwanted, often coercive, sexual behaviour directed
by one person towards another. Can be emotionally
abusive and creates an unhealthy, unproductive work
environment.
 Most frequent complaint received by human rights
agencies.
 Most costly for employers without effective
policies, or who fail to treat such complaints from
employees, customers and/or clients seriously.
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Sexual Harassment
• Consensual Relationships and Workplace
Romance Survey:
 63% of Canadians have had a workplace romance
• Creates Employer Dilemma:
 monitor workplace relationships and risk “meddling” in
employee’s private lives?
 ignore such relationships and risk the potential
problems they present?
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Sexual Harassment
Electronic Sexual Harassment
 Cyber sexual harassment is a growing concern
that occurs in a variety of forms:
 Forwarding e-mail jokes with sexual content
 Sending e-mails pestering another employee for a
date
 Accessing pornographic web sites at work and
sharing content with other employees
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Sexual Harassment
• Employer actions to stop electronic sexual
harassment:
 Adopt “zero tolerance” policies, whereby
disciplinary action occurs regardless of proclaimed
innocence of the employee.
 Train all employees on sexual harassment and
electronic usage policies.
 Equip e-mail systems and Web sites with
scanners to screen for inappropriate words and
images and flag offending employees for disciplinary
action.
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Sexual Harassment
Two basic types of sexual harassment:
Quid pro quo:
Sexual harassment in which employment outcomes
are linked to the individual granting sexual favours.
Hostile Environment:
Sexual harassment in which an individual’s work
performance or psychological well-being is
unreasonably affected by intimidating or offensive
working conditions.
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Sexual Harassment
 90% of all women working outside the home will
experience sexual harassment at some point in their
working lives.
 49% of women in the workforce have experienced at
least one type of unwanted sexual attention.
 Only 4 of every 10 Canadian women who suffers
sexual harassment at work will take any formal action.
 Only 1 out of every 2 women believe a complain would
be taken seriously in their workplace.
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Other Legislation
The Canada Labour Code:
-- governs workplace for industries with federal
jurisdiction, and regulates labour standards and
occupational health and safety.
Employment Standards:
-- minimum, non- negotiable standards of employment
required by law.
-- designed to protect workers from possible exploitation
through unregulated labour markets.
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Other Legislation
Occupational Health and Safety (OH&S)
 legislation that outlines the general rights and
responsibilities of the employer, the supervisor and
the worker.
 all employee have three basic rights with respect to
Occupation Health and Safety:



The Right to Know (e.g. WHMIS)
The Right to Participate (Health and Safety Committees)
The Right to Refuse Dangerous Work
Labour Relations Legislation:
 governs collective bargaining and industrial relations
among employers, their unionized employees and trade
unions.
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Employment Equity and Pay Equity
• Two Separate Pieces of Legislation
Employment Equity (EE)
 addresses
discrimination in employment,
especially where designated groups are
concerned
Pay Equity
 addresses
historical wage gaps between females
and males doing the same or comparable work
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Employment Equity (EE)
Employment Equity
a program, practice or legislation designed to
provide access to employment for people in
designated groups who have been subject to
discrimination.
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Employment Equity (EE)
• The Employment Equity Act (1986)
 passed to achieve equality in the workplace and to
correct conditions that create barriers to employment
for members of designated groups and established
the need for accommodation of differences.
Highlights included LEEP and FCP.
• The Employment Equity Act (1995)
 replaced 1986 act and strengthened legislation by
covering private sector employers under federal
jurisdiction, as well as federal government
employees.
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Employment Equity (EE)
Employer Requirements:
 Employers are required to develop and implement
EE plans and programs, and to report to HRSDC
annually on their progress in achieving a
representative workforce for the four designated
groups:
 Aboriginal people
 Persons with disabilities
 Visible minorities
 Women
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Employment Equity (EE)
Conference Board Report:
 Many employers recognize employment equity as a key
element for corporate success
 Employment Equity is most effective when tied to
business strategy
 Employment Equity is now recognized worldwide as a
uniquely Canadian tool for efficient use of scarce skilled
human resources, and is increasingly being imitated by
advanced industrialized countries
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Employment Equity (EE)
• Advantages of embracing Employment
Equity for employers includes:
enhanced innovation, improved
competitiveness and improved access
to new markets
help in creating tolerance for diversity in
organizational culture
improved corporate image
enhances recruitment efforts
increases employee commitment
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Employment Equity (EE)
Establishing an Employment Equity Plan:
 To demonstrate “reasonable effort” employers
must:
1. Create organizational commitment and
structure for an Employment Equity program.
2. Develop mechanisms to consult and
collaborate with employee representatives.
3. Conduct a workforce survey and undertake a
workforce analysis.
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Employment Equity (EE)
4. Review employment systems if under
representation exists.
5. Develop and implement an EE plan to address
any inequities discovered through workforce
analysis and employment systems review.
6. Monitor implementation of the plan. Review
and revise as necessary.
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Employment Equity (EE)
• Glass Ceiling
Discriminatory practices that have prevented
women and other designated group members
from advancing to executive level jobs.
• Glass Walls and Glass Elevator
Over time, women tended to advance to
senior positions, but only in a limited number
of functional areas such as human resources
or corporate communications.
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Employment Equity (EE)
Breaking the Glass
 Practical steps employers can take to break down the
glass ceiling, walls and elevators that still hold women
and other members of designated groups back from real
advancement, such as:
 creating mentoring programs and career rotation opportunities;
 increasing representation in top management and on Boards of
Directors;
 allowing for work/family balance, etc.
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Pay Equity
Pay Equity
 The right to equal pay for work of equal
value.
 Pay
equity legislation was enacted in 1987 to
address the historical wage gap that exists
between men and women.
 The current wage gap in Canada is 71% and
widens when race and ethnic background are
considered.
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Pay Equity
Equal pay for Equal Work
 Addresses overt discrimination in wages through direct
comparison of jobs occupied by different genders though
the jobs are basically the same.
 Example: male and female professors
Equal Pay for Work of Equal Value
 Aims to reduce the wage gap by comparing jobs of a
different nature that are considered “male” or “female”
jobs.
 Example: nurses vs. mechanics
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Managing Diversity
Indicators of
Diversity
Fig. 3-8
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Various Approaches to Diversity and Their Results
Ignore Diversity
•Status quo is
protected
•Possible legal
issues are
increased
•Diversity is not
important
Begin the Process
of Dealing with
Diversity
Build Acceptance
of Diversity
•Diversity
training is
provided
•Employment
Equity
compliance
occurs
•Designated
group members
are a focus
•Conflicts and
problems occur
•Diversity pays
off for company
•Conflicts are
reduced
•Internal problem
solving takes
place
Fig. 3-9
Solve Diversity
Issues and
Create an
Inclusive Culture
•Diversity
permeates the
company
•Problems are
approached
pro-actively
•Everyone gets
along
•Business results
improve
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Managing Diversity
The Business Case:
 Diversity allows new talent and new ideas from
employees of diverse backgrounds.
 Diversity helps recruiting and retention and increases
market share, as people and customers prefer to work
and buy from others “like” themselves.
 Diversity leads to lower costs due to fewer lawsuits
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Common Diversity Management
Components
Fig. 3-11
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Managing Diversity
Diversity Training
 Intended to minimize discrimination and harassment
lawsuits, and to improve acceptance and understanding
of people with different backgrounds, experiences,
capabilities and lifestyles.
 Often includes three components:



legal awareness
cultural awareness
sensitivity training
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Managing Diversity
Mixed reviews about diversity training exist.
 Some argue that:
1. Diversity training tends to draw attention to
differences, building walls rather than breaking
them down.
2. Diversity training content is “politically correct”,
blaming majority individuals, especially white males
for past wrongs.
3. Diversity training does not reduce discrimination
and harassment complaints, and has not taught the
behaviours needed for employees to get along in a
diverse workplace.
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Managing Diversity
Backlash against diversity efforts:
 Members of designated groups see diversity
efforts as inadequate and simply “corporate
public relations”.
 White males and others not part of
designated groups believe diversity sets
them up to be blamed for societal problems
created by diversity.
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