Employment Equity Legislation and Policy
TheEmployment Equity Actaddresses gender equity by aiming "to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfillment of that goal, to correct the conditions of disadvantage in employment experienced by womem..." (s. 2). The Act endorses the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences.
TheEmployment Equity Actapplies to all federally-regulated private sector employers and Crown corporations with 100 or more employees. In addition, theActcovers all federal government departments and agencies for which the Treasury Board is the employer as well as "separate employers" with 100 or more employees (s. 4). Section 5 defines the employer's duty as eliminating employment barriers resulting from the employer's employment policies and instituting positive policies that will ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer's workforce. The employer must also prepare and revise an employment equity plan that specifies the positive policies in terms of hiring, training, promotion and retention of persons in designated groups, and the measures to be taken to eliminate employment barriers. It has to include a timetable for the implementation and numerical goals for hiring and promotion where under-representation has been identified.
Recruitment and Selection
The idea of affirmative action programs is introduced in theCanadian Charter of Rights and freedoms, which states that sub-section (1) of Section 15 does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups that are disadvantaged because of sex or other specified grounds (s.15(2).).
The case ofBritish Columbia (Public Service Employee Relations Commission) v. BCGSEU[1999] 3 S.C.R. examined whether a change in the fitness test for firefighters unfairly excluded women from forest fighting jobs. The claimant, a female firefighter who had in the past performed her work satisfactorily, failed to meet the aerobic standard after four attempts and was dismissed. The Supreme Court of Canada held that a new framework was required and proposed a new three-step test, referred to as the "Meiorin test". First, the employer must show that it adopted the standard for a purpose rationally connected to the performance of the job. Second, the employer must establish that it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose. Third, the employer must establish that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. The Court stated that in order for a workforce standard to be justified under human rights legislation, it "must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship".
Sexual Harassment
TheCanada Labour Codedefines sexual harassment as "any conduct, comment, gesture or contact of a sexual nature (a) that is likely to cause offence or humiliation to any employee; or (b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion" (s. 247.1). InJanzen v. Platy Enterprise Ltd. [1989] 1 S.C.R. 1252, the Supreme Court defined sexual harassment as "unwelcome conduct of sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for its victims". According to theLabour Code, every employee has the right to be free of sexual harassment (s. 247(2).) and employers must make every reasonable effort to ensure that no employee is subjected to sexual harassment (s. 247(3).). The employer is also required to issue a policy statement concerning sexual harassment (s. 247(4)).
TheCanadian Human Rights Actalso contemplates employer liability for the acts of its employees in the course of employment. TheActis concerned with the effects of discrimination and not its causes of motivations. Only an employer can remedy undesirable effects and only an employer can provide a healthy work environment. This principle was upheld inRobichaud v. The Queen [1987] 2.S.C.R 84. In this case, the Supreme Court upheld that the supervisor had sexually harassed the complainant and that the employer was strictly liable for the discriminatory acts of the supervisor.
Equal Pay
TheEqual Wages Guidelines of 1986pursuant to theCanadian Human Rights Actdetermine the criteria to be applied in assessing the value of work performed by employees employed in the same establishment, including skill, effort, responsibility, and, working conditions. Notably, when a complaint is filed by an individual who is a member of an identifiable group, the sex of the members of the group is a factor in determining whether the practice complained of is discriminatory on the ground of sex (s. 11 (1).). When a complaint is filed by a group, the group must be predominantly of one sex and the group to which the comparison is made must be predominantly of the other sex (s. 12).
Section 16 allows for differences in wages between male and female employees performing work of equal value in an establishment. The justifications include different performance ratings; seniority; a re-evaluation and downgrading of the position of an employee; a rehabilitation assignment; a demotion procedure; a procedure of gradually reducing wages; a temporary training position; the existence of an internal labour shortage in a particular job classification; a reclassification of a position to a lower level; and, regional rates of wages. Sections 17 to 19 add further requirements before the difference in wages can be justified.
InSyndicat des employes de production du Quebec et de l'Acadie v. Canada(Canadian Human Rights Commission) [1989] 2 S.C.R., the Supreme Court considered s. 11, the "equal pay for work of equal value" provision of theCanadian Human Rights Act. The Court agreed with the interpretation of s. 11, that its purpose is to prohibit discrimination by an employer between male and female occupational groups.
Maternity Leave
TheCanada Labour Codedeals with reassignment, maternity leave and parental leave. According to section 204, from the beginning of the pregnancy to the end of the twenty-fourth week following the birth, a woman employee may request the employer to modify her job functions or to reassign her if they may pose a risk for her health or that of her child. She shall also be granted a leave of absence with pay, until her job functions are modified (s. 205 (2).). Furthermore, the onus is on the employer to show that a modification of job functions or a reassignment is not reasonably practicable (s. 205(3).). Every employee who has completed six consecutive months of employment is also entitled to parental leave of up to twenty-four weeks within the year following the birth (section 206(1).). Subject to some exceptions (s. 208 (2).), no employer may require an employee to take a leave of absence because the employee is pregnant (s. 208 (1).).
Every employee having taken a maternity or parental leave is entitled to be reinstated in the position that the employee occupied when the leave of absence commenced (s. 209.1). Finally, no employer can dismiss, suspend, lay off, demote or discipline an employee because she is pregnant or has applied for leave of absence, and must take into account the pregnancy of an employee or the intention of an employee to take leave of absence in any decision to promote or train the employee (s. 209.3).
Pregnancy and Childbirth
Discrimination on the basis of sex often comes from the unequal treatment of pregnant women. The Supreme Court case ofBrooks v. Canada Safeway, (1989), 59 DLR (4th) 321 (SCC) established principle that discrimination on basis of pregnancy equals discrimination on basis of gender. Accordingly, employers must consider meeting the special needs that pregnant women have, along with any complications and conditions resulting directly or indirectly from childbirth. Moreover, an employee may not be dismissed because she is or may become pregnant unless the employer is able to prove that not being pregnant is a bona fide requirement for the job or that the employee's pregnancy cannot be accommodated without undue hardship to the employer. If an employee's pregnancy is the sole or even a part of the reason for her dismissal, the employer will have violated human rights laws.
An employee may need to modify her job duties or hours of work because of her pregnancy, or related complications. Employers may have an obligation to accommodate such a request to the point of undue hardship. The dismissal of an employee after a request is likely to be discrimination on the basis of sex. An example of this can be found in the British Columbia Human Rights Tribunal decision,Leeder v. O'Cana Enterprises Ltd. (c.o.ba. "Alisa Japanese Restaurant)[1999] B.C.H.R.T.D. Leeder was discriminated against on the basis of sex when her employment was terminated following her request for accommodation of her work schedule. The refusal of the request was found to be discriminatory and Leeder was awarded compensation. InBrown v. M.N.R., Customs and Excise(1993) 19 C.H.R.R. D/39 (Can Trib), a decision of the Canadian Human Rights Tribunal, the employer's denial of an employee's request to be placed on a regular shift from her rotating shift work schedule was discriminatory.
Complaints Mechanism
Many of the general concepts and principles apply equally to human rights statutes and procedures in all Canadian jurisdictions. For example, in the province of Ontario, an employee can complain directly to the Ontario Human Rights Commission regardless of whether or not the employee has used the employer's internal complain procedures. After a complaint against an employer is made and filed with the Commission, the employer has 21 calendar days to respond within. If the parties refuse voluntary mediation, then the complainant will go straight to the investigation stage. Human rights tribunals have a broad range of remedial measures outlined in the Human Rights legislation.
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