Part 2 Staffing the Organization Chapter 3 Legal

Part 2: Staffing the Organization Chapter 3: Legal Environment of Equal Employment and Diversity Prepared by Linda Eligh, University of Western Ontario 3 -1 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

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. 2 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

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. 3 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

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) Ø Canada Labour Code Ø Canadian Human Rights Act 90% of workforce (remaining non-federal sectors) Ø Provincial Legislation Ø Territorial Legislation 4 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Canada’s Legal Environment CANADIAN CHARTER OF RIGHTS AND FREEDOMS Ø Federal law enacted in 1982 guaranteeing the rights and freedoms of all Canadians Ø Part of the Canadian Constitution (1982). A set of laws containing the basic rules for how Canada operates. Ø Challenges to both the Charter and the Constitution are handled in the courts. 5 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Charter of Rights and Freedoms • Fundamental freedoms guaranteed: Ø Freedom of conscience and religion Ø Freedom of thought, belief, opinion and expression (including freedom of the press and other media of communication) Ø Freedom of peaceful assembly; and Ø Freedom of association • Other rights protected by the Charter: Ø Mobility rights, legal rights, equality rights, official language and minority language education rights, and rights of Aboriginal peoples of Canada. 6 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

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. ) ØUsed very rarely v Example: Quebec Government passed laws requiring signs to be in French only. ØExpires after five years. 7 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Human Rights • Canadian Human Rights Legislation Ø 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: Ø Canadian Human Rights Act v covers federally regulated employees who are 10% of Canadian workforce Ø Provincial and Territorial Human Rights Legislation v covers non-federally regulated employees (remaining 90% of workforce) 8 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

PROHIBITED GROUNDS RACE SEXUAL ORIENTATION RELIGION MARITAL STATUS AGE FAMILY STATUS SEX NATIONAL/ETHNIC ORIGIN DISABILITY CONVICTIONS (PARDONS NOT GRANTED) 9 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

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 10 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Types of Discrimination • Direct Discrimination: Øoccurs when people are treated differently (usually less favourably) based on a prohibited ground. • Indirect/Constructive/Adverse or Systemic Discrimination: Øoccurs when people are treated differently (usually less favourably) as a result of a seemingly neutral policy or practice. 11 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employer Requirements • Bona Fide Occupational Requirement (BFOR/Q) Øa justifiable reason for discriminating against a member of a designated group. • Duty to Accommodate: Øan employer’s legal duty to take reasonable steps, in policies or conditions of work, to accommodate an employee’s individual needs. 12 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

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) 13 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Harassment • Harassment is a type of discrimination that takes many forms: Ø Threats, intimidation or verbal abuse Ø Unwelcome remarks or jokes Ø Display of sexist, racist or other offensive pictures/posters Ø Sexually suggestive remarks or gestures Ø Inappropriate physical contact (touching, pinching etc. ) Ø Leering or whistling Ø Outright demands for sexual favours Ø Physical assault (including sexual assault) 14 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Harassment • Sexual Harassment Ø unwanted, often coercive, sexual behaviour directed by one person towards another. Can be emotionally abusive and creates an unhealthy, unproductive work environment. v Most frequent complaint received by human rights agencies. v Most costly for employers without effective policies, or who fail to treat such complaints from employees, customers and/or clients seriously. 15 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Sexual Harassment • Consensual Relationships and Workplace Romance Survey: Ø 63% of Canadians have had a workplace romance • Creates Employer Dilemma: Ø monitor workplace relationships and risk “meddling” in employee’s private lives? Ø ignore such relationships and risk the potential problems they present? 16 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Sexual Harassment Electronic Sexual Harassment Ø Cyber sexual harassment is a growing concern that occurs in a variety of forms: v Forwarding e-mail jokes with sexual content v Sending e-mails pestering another employee for a date v Accessing pornographic web sites at work and sharing content with other employees 17 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Sexual Harassment • Employer actions to stop electronic sexual harassment: Ø Adopt “zero tolerance” policies, whereby disciplinary action occurs regardless of proclaimed innocence of the employee. Ø Train all employees on sexual harassment and electronic usage policies. Ø Equip e-mail systems and Web sites with scanners to screen for inappropriate words and images and flag offending employees for disciplinary action. 18 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Sexual Harassment Two basic types of sexual harassment: ØQuid pro quo: Sexual harassment in which employment outcomes are linked to the individual granting sexual favours. ØHostile Environment: Sexual harassment in which an individual’s work performance or psychological well-being is unreasonably affected by intimidating or offensive working conditions. 19 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Sexual Harassment Ø 90% of all women working outside the home will experience sexual harassment at some point in their working lives. Ø 49% of women in the workforce have experienced at least one type of unwanted sexual attention. Ø Only 4 of every 10 Canadian women who suffers sexual harassment at work will take any formal action. Ø Only 1 out of every 2 women believe a complain would be taken seriously in their workplace. 20 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

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. 21 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Other Legislation Occupational Health and Safety (OH&S) Ø legislation that outlines the general rights and responsibilities of the employer, the supervisor and the worker. Ø all employee have three basic rights with respect to Occupation Health and Safety: v v v The Right to Know (e. g. WHMIS) The Right to Participate (Health and Safety Committees) The Right to Refuse Dangerous Work Labour Relations Legislation: Ø governs collective bargaining and industrial relations among employers, their unionized employees and trade unions. 22 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employment Equity and Pay Equity • Two Separate Pieces of Legislation ØEmployment Equity (EE) v addresses discrimination in employment, especially where designated groups are concerned ØPay Equity v addresses historical wage gaps between females and males doing the same or comparable work 23 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employment Equity (EE) Employment Equity Øa program, practice or legislation designed to provide access to employment for people in designated groups who have been subject to discrimination. 24 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employment Equity (EE) • The Employment Equity Act (1986) Ø 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) Ø replaced 1986 act and strengthened legislation by covering private sector employers under federal jurisdiction, as well as federal government employees. 25 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employment Equity (EE) Employer Requirements: Ø 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: v Aboriginal people v Persons with disabilities v Visible minorities v Women 26 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employment Equity (EE) Conference Board Report: Ø Many employers recognize employment equity as a key element for corporate success Ø Employment Equity is most effective when tied to business strategy Ø 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 27 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employment Equity (EE) • Advantages of embracing Employment Equity for employers includes: Øenhanced innovation, improved competitiveness and improved access to new markets Øhelp in creating tolerance for diversity in organizational culture Øimproved corporate image Øenhances recruitment efforts Øincreases employee commitment 28 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employment Equity (EE) Establishing an Employment Equity Plan: Ø 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. 29 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

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. 30 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employment Equity (EE) • Glass Ceiling ØDiscriminatory practices that have prevented women and other designated group members from advancing to executive level jobs. • Glass Walls and Glass Elevator ØOver time, women tended to advance to senior positions, but only in a limited number of functional areas such as human resources or corporate communications. 31 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Employment Equity (EE) Breaking the Glass Ø 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: v creating mentoring programs and career rotation opportunities; v increasing representation in top management and on Boards of Directors; v allowing for work/family balance, etc. 32 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Pay Equity Ø The right to equal pay for work of equal value. v Pay equity legislation was enacted in 1987 to address the historical wage gap that exists between men and women. v The current wage gap in Canada is 71% and widens when race and ethnic background are considered. 33 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Pay Equity Equal pay for Equal Work Ø Addresses overt discrimination in wages through direct comparison of jobs occupied by different genders though the jobs are basically the same. v Example: male and female professors Equal Pay for Work of Equal Value Ø Aims to reduce the wage gap by comparing jobs of a different nature that are considered “male” or “female” jobs. v Example: nurses vs. mechanics 34 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Managing Diversity Indicators of Diversity Fig. 3 -8 35 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

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 36 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Managing Diversity The Business Case: Ø Diversity allows new talent and new ideas from employees of diverse backgrounds. Ø Diversity helps recruiting and retention and increases market share, as people and customers prefer to work and buy from others “like” themselves. Ø Diversity leads to lower costs due to fewer lawsuits 37 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Common Diversity Management Components Fig. 3 -11 38 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Managing Diversity Training Ø Intended to minimize discrimination and harassment lawsuits, and to improve acceptance and understanding of people with different backgrounds, experiences, capabilities and lifestyles. Ø Often includes three components: legal awareness v cultural awareness v sensitivity training v 39 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Managing Diversity Mixed reviews about diversity training exist. Ø 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. 40 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.

Managing Diversity Backlash against diversity efforts: Ø Members of designated groups see diversity efforts as inadequate and simply “corporate public relations”. Ø White males and others not part of designated groups believe diversity sets them up to be blamed for societal problems created by diversity. 41 Copyright © 2008 by Nelson, a division of Thomson Canada Limited.