What we learned from Carey Majid & Kathy Lewis
(Notes and resources from the December 2017 session.)
What does the Human Rights Act cover?
With certain exceptions, the Human Rights Act prohibits discrimination and harassment in certain protected areas:
- Employment
- Membership in a trade union
- Provision of goods and services
- Commercial and Residential Rentals
- Publications
- Contracts
The Human Rights Act prohibits discrimination and harassment on the basis of the following prohibited grounds:
- Race
- Colour
- Nationality
- Ethnic origin
- Social origin
- Religious creed
- Religion
- Age
- Disability (including perceived disability)
- Disfigurement
- Sex (including pregnancy)
- Sexual orientation
- Gender identity
- Gender expression
- Marital status
- Family status
- Source of income
- Political opinion
- Criminal conviction (unrelated to employment)
The Human Rights Act also does the following:
- Prohibits discrimination because of a person’s association or relationship with a person or persons who are identified by one of the prohibited grounds listed above.
- Prohibits retaliation against persons who have made a complaint or have given evidence or helped in some way in a complaint.
- Prohibits sexual solicitation or advances by a person who is in a position to give or deny a benefit.
- Ensures equal pay for same or similar work.
- Approves special programs designed to reduce or eliminate disadvantages suffered by certain groups of people.
Access the Human Rights Act for more information.
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Failure to accommodate
Failure to accommodate is the most frequent complaint the office sees. They have seen very few complaints on discrimination for a criminal conviction with respect to employment. This may be because people don’t know that this is a protected area.
Employer Obligation
How it should work from an employers position?
Employers are allowed to ask for a criminal record check when offering a job. What we seen most often is that the job is offered then rescinded perhaps without explanation. Or an employee looses their job when an employer learns of the conviction or pending charges.
What they should do is discuss the record of conduct with the employee.
They are within their rights to as:
- What happened here?
- How long ago?
- What were the circumstances surrounding?
The employees obligation is to tell the truth.
The employer then compares the job duties as they exist with the conviction. If the record impacts the duties then the employer within their right to rescind the job offer or dismiss the employee.
They can choose to not hire a person but they have to go through a process of discovering if it impacts the job duties. If not, they are discriminating on the grounds of a criminal conviction.
The procedural process for employers is the difficult conversation.
The employer has a duty to accommodate to the point of undo hardship.
What can community agencies do?
- Career practitioners really need to understands the job and duties very well first before putting a person forward
- Focus on the right match! The right person in the right job
- Educate employers about the process
- Advise job seekers on the Human Rights Act
- Support employers in talking with their current staff
- Support employers to manage their staff’s fear
How do you manage privacy issues? More honest conversations would really help.
The Human Rights Act is quasi constitutional which means that it trumps the Labour Standards Act.
Asking for help first
Both employers and employees can seek help from the the Human Rights Commission. They can receive coaching and help prevent formal process/complaints. Solving problems before they become lengthly legal processes benefits individuals.
Q & A
(Just a few from a flurry of scenarios)
- Q: What are the repercussions of being found guilty of a human rights conviction? A: Financial damages paid by the employers.
- Q: What is the limitation for a claim? A: One year from the last
- Can an employer terminate an employee for actions on social media. A: Yes if their actions effects their business or if the behaviour promoted online is related.