October 19th, 2017 | Sterling

Employment Law in HR: Unintentional Discrimination

Employment Law in HR: Unintentional Discrimination

Canadian human rights laws help promote equality in the workplace and are an integral part of Canadian society. One of the key responsibilities of an employer is to provide a safe, accommodating and legally compliant working environment for all employees, including those groups who most need protection. In Part 1 of the Employment Laws in HR series, Employee Law in HR: Unintentional Discrimination, Mark Sward, Director of Privacy at Sterling Talent Solutions, discusses Canadian human rights laws, which types of activities to watch out for to avoid unintentional discrimination, how to determine whether an activity that adversely affects a protected group may be acceptable and shares a few unintentional discrimination cases. Some types of discrimination are obvious, like refusing to hire people of a certain ethnicity or making derogatory comments about an employee’s religion. Others are subtler and can catch a well-intended and seemingly well-prepared employer by surprise.

Review of Canadian Human Rights Laws

Human rights laws exist in all jurisdictions in Canada. They are designed to prevent discrimination based on certain protected characteristics. Each jurisdiction (the ten provinces, three territories and the federal jurisdiction) has its own law with its own nuances, but many of the protected classes are similar. The Canadian Charter of Rights and Freedoms, enacted in 1982, is part of the Constitution and applies to government action only, not to private organizations or individuals. The Canadian Human Rights Act applies to organizations in the federal jurisdiction, like telecommunications companies and railways, and covers discrimination based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, genetic characteristics, disability, gender expression or identity, or conviction that is subject to a pardon or record suspension.

Each province and jurisdiction has its own human rights law, and each is slightly different and protects different groups in different ways, so it is vital that organizations familiarize themselves with the laws that could apply to them. For provincially-regulated businesses, the applicable law may be the one that applies where the business is located, where the applicant resides, where the recruitment is happening or where the employment will take place. If these activities happen in more than one province or territory, multiple laws could apply.

Human Rights Laws Exceptions

Most human rights laws permit discrimination in some cases where the job truly requires it. A “bona fide occupational requirement” is an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees that when considered in other contexts would constitute discrimination and thus be in violation of human rights law. An example of a bona fide occupational requirement would be the need for a driver to operate a vehicle safely and legally. If a candidate’s disability makes them unable to operate the vehicle, then the employer would be permitted to discriminate against that candidate.

A company had a duty to accommodate their employees or candidates to avoid discrimination under human rights laws. Employers must accommodate employees who fall into the groups protected by the human rights law up to the point of undue hardship taking into account health, safety and cost. Samples of this will be office space configuration or specialized computer software. The threshold for the maximum amount of undue hardship is based on the specific situation and should be determined on a case by case basis. Many accommodations can be built into the workplace or company policies. Undue hardship is not strictly defined in law and could include excessive costs and safety hazards.

Illegal discrimination or the appearance of it may result in a human rights complaint, which can lead to a time-consuming and expensive investigation. A person could make a discrimination complaint against their company to a human rights board, commission or tribunal, whose goal is primarily to resolve the situations and not necessarily to punish the employers. Employees may make a complaint to human rights regulators free of charge and without legal representation. If the complaint is accepted, the regulator may attempt to mediate a resolution. If mediation is unsuccessful, the matter may go a hearing for a formal decision. A resolution of the dispute can result in reinstatement, damages or policy changes. Employees can also seek injunctive relief or damages in civil court.  Having good practices and procedures in place to reduce the possibility of illegal discrimination may help respond to a human rights complaint or lawsuit.

How to Avoid Unintentional Discrimination

During the webinar, Mark shared a few examples of an organization conducting unintentional discrimination. One example that is a common occurrence is a company’s “traditional” dress codes. Some company dress codes are obviously discriminatory, such as dressing sexy or not allowing a woman to wear a hijab. But there are others that are not so obvious, such as men must be cleanly shaven. Employers must ensure that dress codes do not unfairly discriminate and that accommodations are made where necessary.

To avoid unintentional discrimination, companies need to build protections into procedures to prevent these from happening. Employers need to know and understand human rights laws. Some items that a business needs to consider to prevent unintentional discrimination:

  • Companies need to understand prohibited grounds for discrimination
  • Each jurisdiction in Canada is different and the laws need to be understood
  • Organizations must create clear internal policies with human rights protections built into HR SOPs
  • Businesses need to consult with legal counsel to create a clear anti-discrimination policy.
  • Companies need to provide good faith accommodation
  • Organizations need to handle discrimination complaints respectfully and diligently

Compliant Background Screening Policies

Employers have access to a great deal of information about their job applicants and their employees. Some of this information can be covered by human rights laws and must be handled very carefully. To help ensure that they respect the rights of applicants and employees, organizations should be aware of their obligations and develop background checking policies that take into account their particular needs, risk tolerance and legal obligations.

Find out more about employment law and HR and Unintentional Discrimination by checking out the On Demand version of this very informative webinar. You can also sign up for the next webinar in the Employment Law and HR series, “What is a Bona Fide Occupational Requirement?”

Please note: Sterling Talent Solutions is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.