EMPLOYMENT RIGHTS AWARENESS SLO: I can understand the terms and conditions associated with fair workplace practices.

QUESTION ONE  A company requires all job applicants to have a full medical examination. It wants all employees to be in good health before it will consider them for employment. Is this discrimination:

ANSWER  Yes. Section 19 of the Code states that job applicants cannot be required to answer questions that would directly or indirectly identify whether an employee has a disability. A blanket medical would do this. The Commission has established that employers can ask the following two-part questions:  Do you have a disability that will affect your ability to perform any of the functions of the job for which you have applied?  If the answer is yes, what functions can you not perform and what accommodations could be made which would allow you to do the work adequately?  In addition, an employee may be asked to take a medical after a job offer has been made. The offer may be conditional upon the successful completion of the medical examination. However, the medical examination must be directly related to the duties of the job that the employee will be expected to perform.

QUESTION TWO  A pregnant woman who is sick is told that pregnant employees are excluded from the disability plan. Is this employer's policy discriminatory?

ANSWER  Yes. Discrimination on the basis of pregnancy is considered to be part of gender discrimination. There have been a number of cases dealing with the responsibility of employers not to discriminate against pregnant women when providing disability benefits.

QUESTION THREE  An employer's long-term disability plan provides for persons with physical disabilities, who are unable to work, with benefits up to age 62. However, people with mental disabilities receive benefits for only 24 months, unless they are institutionalized. Is this policy discriminatory?

ANSWER  Yes. Differential treatment of persons with mental disabilities compared to persons with physical disabilities has been found to be discriminatory by a board of inquiry. The Saskatchewan Court of Appeal upheld this decision.

QUESTION FOUR  A woman of South Asian ancestry applies for a position as a receptionist. She is well qualified with a number of years of experience. She speaks English well and clearly, but the employer tells her that customers may object to her accent or have difficulty understanding what she says. Is the employer discriminating?

ANSWER  Yes. If the employee was not able to clearly communicate in English and such communication was fundamental to the job, which it presumably would be in the case of a receptionist, the employer could argue that the language requirement was a necessary job requirement. However, the preferences of customers who object to hearing an accent are not sufficient justification to allow discrimination. Regulations of the Saskatchewan Human Rights Code specifically state that customer preference is not a "reasonable occupational qualification."

QUESTION FIVE  A woman applies for a position as a laborer with a company. Before she is hired, she must demonstrate that she can lift 120 pounds. Is this employment test discriminatory?

ANSWER  Yes. The employer would have to demonstrate that the test was legitimate and related to the job that the woman was being asked to perform. Even if legitimate the test would still have disproportionate adverse impact on women. An employer would/could not modify the work requirement without undue hardship would have a valid defence. In addition, the test could not be a reuse to justify the refusal to hire women. If only female applicants were asked to perform the rest this would be evidence of discrimination.

QUESTION SIX  A man who has just completed a term in prison for armed robbery applies for a job as a maintenance worker. The company refuses to hire him because they do not want to hire people with criminal records. Is this requirement discriminatory?

ANSWER  No. While several jurisdictions across Canada do prohibit discrimination against persons who have criminal records or been charged with a criminal offence, Saskatchewan‘s Human Rights legislation does not. In provinces where this is a prohibited type of discrimination employers can argue that conviction for particular types of offences cause the individual to be unqualified to perform certain work. For example, conviction for sexual offences against children would disqualify someone from employment as a childcare worker.

QUESTION SEVEN  A believer in a religious group whose holy day is from sundown Friday to sundown Saturday asks his employer if he can arrange his work schedule to take this day off. While such an arrangement is possible, the supervisor says that he cannot arrange shifts according to the whims of individual employees. Is this action by the employer discriminatory?

ANSWER  Yes. Employers are required to make accommodations where a general employment policy adversely affects someone because of a prohibited ground of discrimination. The employer can argue that the required accommodation creates an undue hardship but in this case it is stated that there is no hardship created.

QUESTION EIGHT  A regular customer of a restaurant makes comments of a sexual nature to waitresses employed there. He also slaps some of the waitresses on their buttocks. Is this a discriminatory employment situation?

ANSWER  Yes. Employers are responsible for ensuring the working environment is free of discriminatory conditions such as sexual harassment. When employers are made aware of sexual harassment they have an obligation to respond. The employer has the power to control the workplace. Appropriate action in this case could include prohibiting the customer from using the restaurant. The actions of the customer may also constitute an assault and may be subject to the Criminal Code.