For Employers

Employer Obligations under the Human Rights Code

Although you may not realize it, the Human Rights Code applies to employment, and governs your decision making with respect to your employees.

The Code specifies that, as an employer, you cannot make any employment decisions based on the grounds of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age  unless that decision is based upon a bona fide occupational requirement.  You can’t even make employment decisions based on an employee having been convicted of a criminal or summary conviction offence that is unrelated to the employment unless there is a bona fide occupational requirement for that decision.

So what is considered a “bona fide occupational requirement”?  Simply put, it is a quality or attribute that is integral to the function of a job.  Generally, there would be undue hardship placed on you, the employer, if you had to hire someone without that quality or attribute.

Courts have ruled that a bona fide occupational requirement can exist where:

  • the employer adopted the standard for a purpose rationally connected to the performance of the job;
  • the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
  • the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

Often, the requirements for a bona fide occupational requirement may be considered discriminatory in another context.  For example, an airline pilot would typically be expected to have very good eye sight. In another job, however, eye sight may not be integral to the job and basing an employment decision on eye sight could be discrimination on the basis of a physical disability.

As an employer, you should carefully consider the Human Rights Code when making any employment decisions regarding your employees, not just when considering whether to hire or dismiss someone.  For example, you could contravene the Human Rights Code by failing to accommodate a disabled employee who can otherwise carry out all the tasks that a non-disabled employee could.  Likewise, if you terminate an employee because that employee is ill or injured, you risk having a human rights complaint brought against you on the basis of disability.

If an employee feels that you have acted in a manner that contravenes the Humans Rights Code, he or she may file a complaint against you.  Not only is such a complaint embarrassing, it may result in your having to pay significant amounts for damages to dignity and lost wages.

For more information on human rights related issues, or to prevent a human rights complaint in the first place, contact me for a consultation today.

 

This blog is produced by Waterstone Law Group LLP. This blog is intended for information purposes only and is not offered as legal advice for a specific claim. Subscription to or use of this site does not establish a solicitor – client relationship between the user and Waterstone Law Group LLP or any of the individual contributors. For advice relating to your employment law claim, please contact us to arrange for a consultation.

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