HRM and The Law

As described in the previous section, the society in which we live in is constantly evolving. As the values that we share collectively change, so do the rules and regulations that we impose on ourselves. The legislative framework that is adopted by governments is a reflection of our values. For the HR manager, a clear understanding of the legal framework is absolutely necessary.

2. The Legal Framework

The Canadian Charter of Rights and Freedoms

The constitution Act of 1982 is the highest law of Canada and is a landmark document in Canadian history. It achieved full independence for Canada by allowing the country to change its Constitution without approval from Britain. It also enshrined the Charter of Rights and Freedoms in Canada’s Constitution which guarantees fundamental rights to every human, including: rights of freedom of speech, press, assembly, association, and religion. This video explains the various aspects of the Charter.

The Canadian Human Rights Act (CHRA)

The CHRA became effective in March 1978. It proclaims that “all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered“. Let’s examine this statement in order to fully understand its significance for HRM.
  1. “All individuals should have opportunity equal with other individuals to make for themselves the lives that they are able and wish to have”: this means that, considering their desires and abilities, the opportunity to earn a living, which implies the ‘opportunity to work’, should be equal for all.
  2. These opportunities should not be hindered by discriminatory practices based on “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”: the CHRA is very specific as to the categories that are deemed discriminatory. These categories have changed over time, following changes in our society. Currently, the issues raised by genetic testing are at the forefront of these societal changes. Is it legal to deny insurance for people known to have gene mutation that causes or increases the risk of an inherited disorder? These issues are currently being debated (see Canadian Supreme Court decision) and as genetic testing becomes more common, we as a society, will have to decide the extent to which it is OK to use this information to make decisions about people.

Enforcement

The CHRA only applies to federal government departments and agencies, to Crown corporations, and to businesses under federal  jurisdictions such as banks, airlines, and communication companies. Employees of those organizations that fall under the CHRA who feel discriminated against can file complaints directly to the Canadian Human Rights Commission (CHRC). There is a systematic process in place to handle these complaints. After a complaint is filed, a mediation process is attempted to try to resolve the issue between the parties. If the mediation fails, the dossier is handed over to the Human Rights Commissioner who can decide to:

  • dismiss the complaint;
  • send the complaint to conciliation;
  • defer the decision and request more information and further analysis; or
  • refer the complaint to the Canadian Human Rights Tribunal

Provincial Human Rights Laws

Organizations that do not fall under the CHRA are subject to provincial human rights laws. Overall, there are 14 jurisdictions in Canada (10 provinces, 3 territories and the federal jurisdiction which covers crown corporations, civil service, banking, and communication). Approximately 90% of the enforcement of the equity laws are done by the provinces and 10% by the federal government. While provincial laws are very similar to the federal one, there are some variations across provinces. A good example of one of these variations is the inclusion of ‘sexual orientation’ as a protected category. Quebec was the first province to include it in 1977, while the last province was Alberta in 2009.

Guide to your rights and responsibilities under the Human Rights Code (ohrc.on.ca)

The Ontario Human Rights Code   provides protection from discrimination. The Code states that every person has a right to freedom from discrimination in five social areas:

  1. Services, Goods and Facilities
  2. Housing
  3. Contracts
  4. Employment
  5. Membership in Vocational Associations and Trade Unions

 The Code also specifies the prohibited grounds of discrimination:

  1. Age – 18-65 years (employment); 16+ years (housing); 18+ years (all other areas)
  2. Ancestry
  3. Citizenship
  4. Colour
  5. Creed
  6. Disability:
    • disability as a medical condition that a person has.
    • barriers that prevent every member of society from participating fully
  7. Ethnic origin
  8. Family status
  9. Gender expression
  10. Gender identity
  11. Marital status
  12. Place of origin
  13. Race
  14. Receipt of public assistance
  15. Record of offences
  16. Sex
  17. Sexual orientation

It is important to stress the fact that these protections are not universal and that they reflect the society that they are intended to influence. In the US for example, many protections that are considered basic in Canada have been challenged in court. For example, the Supreme Court recently upheld a decision that protects LGBTQ workers from discrimination by  a 6-3 margin.

Enforcement of Provincial human rights laws

Employees of those organizations that fall under the Ontario Human Rights Code who feel discriminated against can file complaints directly to the Human Rights Tribunal of Ontario (HRTO). The complaint can be handled either by mediation or a hearing.

Videos:

Pay Equity

Over the years, the Canadian and Provincial governments have enacted various forms of legislation and statutory mechanisms to specifically address the issue of gender wage discrimination (see graph).

According to Forbes, Canada had a 18.2% pay disparity between men and women.

Gender pay gap by country

Video:

Pay Equity in Canada

The federal Pay Equity Act came into force on 31 August 2021.  As of this date, all employers with 10 or more employees must proactively address pay equity issues within their organizations. The goal is to ensure that there is pay equity between employees that are in position commonly held by women with those that commonly held by men.

The Canadian Government reported that in 2020 that women in Canada, on average, earn 89 cents for every dollar earned by men.

Average and median gender wage ratio, annual (statcan.gc.ca)

Home | Pay Equity (payequitychrc.ca)

Employment Equity Act

The Employment Equity Act is federal legislation that serves to enable equality in the workplace by addressing the barriers to employment as faced by members of the four designated groups:

  • Women
  • Aboriginal peoples
  • Persons with disabilities
  • Visible minorities

 

License

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test Copyright © 2020 by Stéphane Brutus and Nora Baronian is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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