1. EVOLUTION OF HUMAN RIGHTS LEGISLATION Mr. Andrez – CLN4U

2. Introduction Canadians enjoy both: ◦ Civil Rights (and freedoms) - limit the power that a government has over its citizens ◦ Human Rights – protect people from being unfairly discriminated against by other individuals  Canadians can feel secure in almost all areas of their lives  Canadians are free because laws are passed and enforced to protect their rights and freedoms  Wealth, gender, race, age, belief, family status … are not supposed to determine how you are treated in Canada – equal under the law

3. 3 Human Rights Legislation Purpose ◦ To provide equal employment opportunities (i.e., prevent discrimination) to members of protected groups ◦ Makes it illegal to discriminate—even unintentionally—against certain groups 2 levels of legislation ◦ Federal ◦ Provincial

4. Evolution of Human Rights Law Human rights protection has been a process in Canada ◦ It has been three decades since our rights have been “enshrined” in the Constitution ◦ Did Canadians operate without rights prior to the Constitution?

5. Evolution of Canadian Human Rights Legislation Much of Canada's human rights legislation developed during the 20th century. Unlike the U.S. Constitution, the British North America (BNA) Act did not address Human Rights issues at all. It focused instead on the division of powers between the federal government and the provinces and territories.

6. Evolution of Human Rights Law Common Law ◦ Originally, Canadians were protected by the rules of British common law ◦ Common law itself did not provide for a guarantee of civil liberties ◦ A free person is allowed to do anything which is not positively prohibited  E.g. a person has freedom of speech as long as that freedom does not conflict with existing laws that regulate speech such as defamation laws  Defamation m eans making false or malicious statements that injure a person’s reputation

7. Christie v. York (1940), One of Canada's most famous human rights cases, clearly emphasized the lack of human rights laws in this country. Mr. Christie and several friends went to the Montreal Forum to watch a hockey game. In a bar at intermission, the bar attendant refused to serve Mr. Christie because of his skin colour. He went to court over the issue and the judge awarded him $200 for loss of dignity and worth. However, the business community appealed the ruling on the basis that under current legislation they had the freedom to serve anyone they chose. The higher court agreed and overturned the original judgment, making it clear that no law existed to protect Mr. Christie's rights.

8. Evolution of Human Rights Law Canadian Bill of Rights, 1960 ◦ Aimed to establish written protection of rights and fundamental freedoms  Right of the individual to life, liberty, security of the person and enjoyment of property  Freedom of religion  Freedom of speech  Freedom of assembly and association  Freedom of the press

9. Evolution of Human Rights Law What were the limitations of the Canadian Bill of Rights? 1.Inadequate in protecting individual rights  EQUALITY PROVISIONS were narrowly defined to mean “equal administration of law”. People seeking rights enforcement from the courts were usually disappointed. 2.Not a constitutional document, only a federal statute, so it could be revoked 3.Did not apply to provincial governments 4.Did not confer ability to create new rights

10. The Canadian Human Rights Act, 1977 ◦ Applies to employers under federal jurisdiction ◦ About 10% of labour force  E.g., federal gov’t, crown corps, chartered banks, airlines, etc.

11. 11 Prohibited Grounds of Discrimination S. 3 of the CHRA prohibits discrimination based on: ◦ Race or colour ◦ Ethnic or national origin ◦ Creed or religion ◦ Sex (including pregnancy and childbirth) ◦ Marital status ◦ Family Status ◦ Age ◦ Disability ◦ Harassment ◦ Past conviction (for which a pardon has been granted) Slight variations between federal and provincial legislation

12. Charter Of Rights and Freedoms, 1982 ◦ Rights protection would now apply to federal, provincial and territorial governments ◦ Rights protection enshrined in the Constitution  Could not be repealed or changed without constitutional amendment

13. The Ontario Human Rights Code The development of these laws and increased social pressure led politicians to establish a more comprehensive human rights legislation to protect the rights of individuals. In 1962, Ontario proclaimed its Human Rights Code. Laws would be enforced through the establishment of the Ontario Human Rights Commission. Revisions to The Code have occurred several times since then to broaden its protection of individuals.

14. The Ontario Human Rights Code The Ontario Human Rights Code has supremacy over all other legislation in Ontario unless that legislation specifically states that the Code does not apply. An example of where the Code does not apply is when persons with certain disabilities (such as uncontrolled seizures) are prohibited from driving under the Highway Traffic Act.

15. SOCIAL AREAS The Ontario Human Rights Code provides protection from discrimination in five social areas of our lives: 1. services, goods and facilities—including schools, hospitals, shops, restaurants, sports and recreation organizations and facilities. 2. occupancy of accommodation—the place where you live or want to live, whether you rent or own the premises. 3. contracts—whether written or oral agreements. 4. employment—including advertisements, application forms and job interviews as well as work assignment, training, and promotions. 5. membership in vocational associations and trade unions - such as the Ontario Secondary School Teachers’ Federation or United Steelworkers

16. 16 Discrimination Not specifically defined in federal legislation. OHRC is more specific ◦ Involves practices that fail to provide equal opportunity to members of protected groups Direct (Intentional) Discrimination ◦ Employment practice that intentionally discriminates on a prohibited ground ◦ The deliberate use of prohibited grounds in employment decisions

17. 17 Discrimination Indirect (Systemic) Discrimination ◦ Employment practice that results in discrimination against protected group, but is not intentional ◦ Focus on the impact, not intent ◦ Referred to as: Adverse Impact, Disparate Impact, Adverse Effect Discrimination, Constructive Discrimination ◦ E.g., height requirement for police officers discriminates against women, visible minorities

18. 18 Bona Fide Occupational Requirements What is a BFOR? ◦ A job requirement that legally overrides human rights protection ◦ Allowed when abilities need to carry out the essential job requirements are related to a prohibited ground ◦ E.g., employee’s religious commitments require wearing a turban; job requires a hard hat for safety purposes

19. 19 Bona Fide Occupational Requirements Examples of court cases involving BFORs Etobicoke, ON – mandatory retirement for firefighters after age 60 1982 Supreme court decision stated that being under 60 was not a BFOR ◦ Inadequate evidence suggesting that reaching age 60 resulted in inability to perform the job

20. 20 Bona Fide Occupational Requirements Examples of court cases involving BFORs Canadian Coast Guard ◦ Applicant with complete hearing loss in one ear was excluded from officer cadet training ◦ Coast guard cited the condition was a safety risk ◦ BFOR claim was denied because employer’s evidence of the safety risk was inadequate

21. 21 Bona Fide Occupational Requirements When BFORs are upheld: Theatrical productions ◦ That require actors with particular characteristics Use of gender as selection criterion ◦ E.g., Male nursing attendants to provide bathing, etc. for male hospital patients ◦ E.g., RCMP guards must be of same sex as prisoners being guarded

22. 22 Supreme Court Case re: BC Firefighter Woman employed in elite firefighting unit by province of BC for more than 2 years New fitness tests were introduced for unit She failed one of new tests (run 2.5 km in 11 minutes) and was fired Union grieved – got appealed to Supreme Court Court sided with complainant ◦ BC gov’t had failed to establish the fitness requirement as a BFOR – lack of evidence showing inability to meet it was a safety risk

23. 23 Criteria used to assess BFOR In this decision, the court established 3 criteria to assess appropriateness of BFORs 1.Is the standard rationally connected to the performance of the job? 2.Was the standard established in an honest belief that it was necessary to accomplish the purpose identified in stage 1? 3.Is the standard reasonably necessary to accomplish its purpose?

24. 24 Duty to Accommodate Requirement that employer must accommodate the employee to the point of “undue hardship” ◦ Aka: Reasonable Accommodation ◦ Employer is required to make certain adjustments to job content or working conditions if an individual cannot meet job requirements (due to BFOR) ◦ E.g., redesigning work stations, lighting, adjusting work schedules Undue hardship not specifically defined ◦ Factors to consider include financial cost, disruption of collective agreement, morale of other employees, etc.

25. 25 O’Malley v. Simpson-Sears Ltd. O’Malley was a full-time sales clerk at S-S for several years; worked 2/3 Saturdays Became member of 7 th Day Adventist Church which observes sabbath from Fri – Sat PM No longer available to work on Saturdays Employer suggested she resign; she didn’t Employer cut her hours Lower courts sided with employer, saying this was not intentional discrimination Supreme Court ruled it was adverse effect discrimination (not intentional) Inadequate reason for not accommodating employee

26. 26 Adverse Effect Discrimination as defined in O’Malley v. Simpson-Sears Ltd. “…an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work group”

27. 27 Harassment Harassment based on any of the prohibited grounds ◦ OHRC defines it as: “engaging in a course of vexatious [annoying or provoking] comments or conduct which is known or ought to be reasonably known to be unwelcome” Behaviour that creates a hostile work environment

28. 28 Harassment CHRC’s standard ◦ Is harassment if “a reasonable person ought to have known that such behaviour was unwelcome” ◦ May include verbal abuse, threats, display of offensive material, practical jokes that cause embarrassment, unwelcome remarks, innuendo, etc.

29. 29 Sexual Harassment Unsolicited or unwelcome sex- or gender- based conduct that has adverse employment consequences for target 3 characteristics of SH identified by CHR Tribunal 1.Encounters must be unsolicited, unwelcome, and expressly or implicitly known by the respondent to be unwelcome; 2.The conduct must either continue despite complainant’s protests or, if the conduct stops, the complainant’s protests must have led to negative employment consequences; and 3.The complainant’s cooperation must be due to employment-related threats or promises