reasonableness

Discrimination Matters

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As HR professionals, there are two legal concepts that guide our actions when we work within the scope of human rights legislation. The first is the concept of intent. When we deal with actions that may be discriminatory in nature, the intent does not matter—the effect does. This means that while an individual may not have intended to make a racist slur or a sexist remark, when they do so or are perceived to have done so, another person is adversely affected by that remark. The second is the concept of reasonableness. In our civil society, a reasonable person would know that not only is a racial slur or sexist remark discriminatory, it is completely unacceptable.

While each province has its own Human Rights legislation, they all identify the prohibited grounds that form the basis for employment discrimination. One of the common grounds found in all provincial and federal human rights legislation is that of age. It is discriminatory to deny or exclude someone from employment-related matters based on their age. All good HR practitioners know that it is illegal to ask someone’s age during the screening and recruitment process. This does not mean that it does not happen.

Facebook was in the negative news cycle recently due to its targeted job advertisements, which excluded individuals based on characteristics linked to prohibited grounds, including age. As noted in this article, this practice by Facebook violated Canadian Human Rights legislation. The article goes on to explore two other examples of age-related discrimination, which occurred during each of their respective recruitment processes. These cases show us how age discrimination can occur through the unintended actions and words on the part of potential employers.

The case of Moore v. Ferro (Estate), is analyzed further in this article “Unintentional Discrimination is Still Discrimination.” This complaint was filed on the basis of two prohibited grounds, age and race. It is interesting to note that the human rights tribunal identified how the age factor had an adverse effect on the complainant, as there was “evidence of reliance on stereotypes about older people.”

There are interviewing tools provided by provincial bodies, such as the Human Rights Commission of Ontario. These tools provide guidance to ensure that the recruitment process is fair, and aligns with human rights legislation for everyone. It seems a reasonable and prudent thing to review before setting up any recruitment process in the future.

The fact that the case Moore v. Ferro (Estate) happened within the setting of a law firm should remind us that due diligence and legislative compliance can happen anywhere, but must prevail, no matter what.

Discussion Questions:

  1. You are guiding a recruitment process as the HR advisor. Two candidates are equally qualified for selection. One candidate appears to be much older than the other. What advice will you give to the hiring manager for when they decide on a candidate?
  2. What measures can you put into place to avoid a situation that causes an “adverse effect” in the recruitment process?
  3. Have you experienced unintended discrimination in a workplace? How did it impact or affect you?

Upholding The Reasonable Rule of Law

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As Human Resources professionals, we work within very specific legislative parameters.

This applies directly to the need for compliance with health and safety legislation. Our role is not just to ensure that the employer and the organization adheres to the principles and practices of safety requirements – it is to ensure that all persons (including employees) keep the workplace safe for everyone.

The concept of ensuring a safe workplace for everyone, seems to be one that is reasonable within the eyes of the law. A recent legal decision in Saskatchewan outlines and confirms that reasonable safety requirements from both the employer and employee perspective must be followed. In this case, an employee was dismissed for just cause, by the employer, for failing to comply with numerous safety practices.

The former employee filed a claim for wrongful dismissal. This claim was rejected by the courts. The former employee filed an appeal, which was also rejected by the courts, and the termination of employment for just cause was upheld.

Click here to read about the case: Balzer v. Federated Co-operatives Limited.

What becomes very clear, through this brief case analysis, is the fundamental role of ongoing training and monitoring by the employer to ensure safety compliance in the workplace. This is not a case of a single incident leading to tragic consequences due to an accidental error on the part of the employee. All too often, employers do not act until there has been a critical workplace incident or even a fatality before taking action against the employee.

This case shows us that the courts look for the direct trail of evidence. One that proves whether or not the employer acted in a reasonable fashion to guide, monitor and direct the employee in order to keep the workplace safe and in order to avert the reality of potential tragic consequences.

Feeling and being safe at work is reasonable for everyone.

Discussion Questions:

  1. As the Director of Human Resources in this situation, what additional actions would you take to ensure that safety requirements are met by all employees?
  2. Do you agree with the termination for just cause in this case? Explain your rationale.
  3. Why do you think some employees do not report safety infractions? What are the risks and benefits to employees for ‘keeping quiet’ about safety concerns?