Compliance with Legislation
The Government of Canada and all provincial and territorial governments have passed Human Rights laws dealing with employment discrimination. The Charter of Rights and Freedoms also guarantees equality and reinforces these requirements in Human Rights legislation. These laws reflect a commitment to provide fair workplace opportunities, as well as recognition that equal opportunity in employment has not existed in many situations in the past.
Discrimination – A Definition Practices or attitudes that have, whether intended or not, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics.
As used in human rights laws, discrimination means making a distinction between certain individuals or groups based on a prohibited ground, such as:
- National or ethnic origin
- Gender (including pregnancy and childbirth)
- Marital status
- Family status
- Pardoned conviction
- Physical or mental disability (including dependence on alcohol or drugs)
- Sexual orientation
The Charter of Rights and Freedoms
The Charter permits any law, program, or activity that has as its object improving the conditions of disadvantaged individuals or groups. Section 15 of the Charter, often referred to as the “Equality Rights” section, provides an open-ended list of prohibited grounds of discrimination in the provision of employment and services.
The Canadian Human Rights Act
The Canadian Human Rights Act recognizes the inherent dignity and the equal and inalienable rights of all members of the human family. It recognizes that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society.
The Employment Equity Act
The Act regulates activities of private and public sector employers under federal jurisdiction that employ 100 or more employees. Employment Equity refers to the implementation of employment practices, such as hiring and promotion. It is the fair representation and distribution of the four designated groups in the work place (women, Aboriginal peoples, persons with disabilities and members of visible minorities). It is accomplished by employment practices that correct and prevent disadvantages in employment for designated groups through special measures, reasonable accommodations of differences, and programs to remove barriers to equitable employment opportunities.
Exceptions and Obligations
Two exceptions can be granted under the Canadian Human Rights Act. They are:
Bona Fide Occupational Requirement (BFOR)
When abilities are essential to the performance of a task but would appear to discriminate on prohibited grounds, exemptions are granted under all Canadian Human Rights Act. For example, severe visual impairment would restrict the ability of a truck driver to drive a truck safely and efficiently. In such a case, a particular skill or qualification (e.g., a minimum standard of vision) can be specified if it is based on a genuine job requirement. It is the employer’s responsibility, however, to prove that an occupational requirement exists and that it is not simply a preference.
Reasonable accommodation provides that, where an employer can adjust an employment practice, environment or schedule without causing any real business difficulty, they are required to do so. For example, providing wheelchair access to the building may remove a major employment barrier for a physically disabled person. Reasonable accommodation is not restricted to the disabled. It can equally apply in recognizing that the different cultures, religions and values of a diverse workplace can be accommodated without causing undue hardship to the employer. Terms like “undue” and “reasonable” are subjective, and therefore, the Canadian Human Rights Commission looks at each case individually to determine if the question is hardship or merely inconvenience.