Chapter 2: HRM, Society and The Law
5 HRM and The Law
As described in the previous section, the society in which we live in is constantly evolving. As the values that we share collectively change, so do the rules and regulations that we impose on ourselves. The legislative framework that is adopted by governments is a reflection of our values. For the HR manager, a clear understanding of the legal framework is absolutely necessary.
2. The Legal Framework
The Canadian Charter of Rights and Freedoms
The constitution Act of 1982 is the highest law of Canada and is a landmark document in Canadian history. It achieved full independence for Canada by allowing the country to change its Constitution without approval from Britain. It also enshrined the Charter of Rights and Freedoms in Canada’s Constitution which guarantees fundamental rights to every human, including: rights of freedom of speech, press, assembly, association, and religion. This video explains the various aspects of the Charter.
The Canadian Human Rights Act (CHRA)
The CHRA became effective in March 1978. It proclaims that “all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered“. Let’s examine this statement in order to fully understand its significance for HRM.
1) “All individuals should have opportunity equal with other individuals to make for themselves the lives that they are able and wish to have”: this means that, considering their desires and abilities, the opportunity to earn a living, which implies the ‘opportunity to work’, should be equal for all.
2) These opportunities should not be hindered by discriminatory practices based on “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”: the CHRA is very specific as to the categories that are deemed discriminatory. These categories have changed over time, following changes in our society. Currently, the issues raised by genetic testing are at the forefront of these societal changes. Is it legal to deny insurance for people known to have gene mutation that causes or increases the risk of an inherited disorder? These issues are currently being debated (see Canadian Supreme Court decision) and as genetic testing becomes more common, we as a society, will have to decide the extent to which it is OK to use this information to make decisions about people.
Enforcement of Canadian human rights laws
The CHRA only applies to federal government departments and agencies, to Crown corporations, and to businesses under federal jurisdictions such as banks, airlines, and communication companies. Employees of those organizations that fall under the Canadian Human Rights Laws who feel discriminated against can file complaints directly to the Canadian Human Rights Commission. There is a systematic process in place to handle these complaints. After a complaint is filed, a mediation process is attempted to try to resolve the issue between the parties. If the mediation fails, the dossier is handed over to the Human Rights Commissioner who can decide to:
- dismiss the complaint;
- send the complaint to conciliation;
- defer the decision and request more information and further analysis; or
- refer the complaint to the Canadian Human Rights Tribunal
Quebec Human Rights Laws
Organizations that do not fall under the CHRA are subject to provincial human rights laws. Overall, there are 14 jurisdictions in Canada (10 provinces, 3 territories and the federal jurisdiction which covers crown corporations, civil service, banking, and communication). Approximately 90% of the enforcement of the equity laws are done by the provinces and 10% by the federal government. While provincial laws are very similar to the federal one, there are some variations across provinces. A good example of one of these variations is the inclusion of ‘sexual orientation’ as a protected category. Quebec was the first province to include it in 1977, while the last province was Alberta in 2009.
It is important to stress the fact that these protections are not universal and that they reflect the society that they are intended to influence. In the US for example, many protections that are considered basic in Canada have been challenged in court. For example, the Supreme Court recently upheld a decision that protects LGBTQ workers from discrimination by a 6-3 margin.
Enforcement of Provincial human rights laws
Employees of those organizations that fall under the Quebec Human Rights Laws who feel discriminated against can file complaints directly to the human rights tribunal of Quebec. With respect to the federal level, there is a systematic process that handles these complaints. An investigation is undertaken and a report is submitted to the minister in charge of administering human rights legislation. If the complaint is substantiated, the two parties are asked to reach a settlement. If no agreement is reached, the case is presented to the province’s human rights commission (tribunal).
Pay Equity
Over the years, the Canadian and Provincial governments have enacted various forms of legislation and statutory mechanisms to specifically address the issue of gender wage discrimination (see graph).
In 1996, the Quebec government adopted the Pay Equity Act to address systemic wage discrimination against women. The Act imposed ongoing obligations on employers to measure and correct pay inequities in predominantly female jobs. Pay Equity refers to equal pay for work of equal value, based on two principles:
1. Pay equality – Male and female workers must be paid the same wage rate for
doing identical work.
2. Equal pay for similar or substantially similar work (equal pay for work of
comparable worth). This means that males and females should be paid the same
for jobs of similar nature that may have different titles.
