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What are the prohibited grounds of discrimination?
- Race
- Ancestry
- Place of origin
- Colour
- Ethnic origin
- Citizenship
- Creed/religion
- Sex (including pregnancy & childbirth)
- Sexual orientation
- Gender identity & gender expression
- Age (18+)
- Record of offences
- Marital status
- Family status
- Disability (physical or mental, including dependence on drugs, alcohol)
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What do the prohibited grounds of discrimination mean for employers?
- Cannot discriminate on the prohibited grounds
- In hiring – interview questions, application forms, tests
- Choosing who’s trained
- Choosing who gets development opportunities
- Choosing who’s promoted, demoted, transferred or terminated
- Differential treatment in scheduling, job assignments, etc.
- Interpretation matters
- The fact that an employee is on probation doesn’t matter
- Employee perception matters
- Complaints must be made on a prohibited ground
- It is a complaint-based system
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What is Intentional/Direct Discrimination?
- Unequal treatment, based on a ground in the Human Rights Code, that takes place on the job.
- When an employer adopts a practice or rule which on its face discriminates on a prohibited ground.
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What is Systemic/Indirect Discrimination?
- Any company policy, practice or action that is not intentionally discriminatory but has a discriminatory impact or effect nonetheless.
- Less obvious, more subtle, may not be intentional but creates barriers to achievement and opportunity.
- May appear to be fair and may be implemented equally but specific groups of people are excluded for reasons that are not job-related or required for safe or efficient operations.
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What does Bona Fide Occupational Requirement (BFOR) refer to?
A justified business reason for discriminating against an employee on a prohibited ground.
- Assess the appropriateness of company rules, policies, practices, standards, tests by considering three criteria:
- Is the standard rationally connected to the performance of the job?
- Was the standard established in an honest, good faith belief that it was necessary?
- Is the standard reasonably necessary to accomplish its purpose?
- i.e., it must be impossible to accommodate individual employees without imposing undue hardship on the employer.
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Briefly explain "The Duty to Accommodate".
- Requires an effort, short of undue hardship, to accommodate the needs of persons who are protected under the Code so that they can perform their jobs effectively.
- If challenged, the employer must present evidence showing that the cost of accommodation or health and safety risks would create undue hardship.
- There a is “procedural duty” to sincerely and genuinely explore accommodations
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What are the employees' responsibilities when seeking accommodation?
- Tell the employer or union what their needs are in relation to their job duties, in writing, where possible.
- Provide supporting information about their needs and limitations (relating to their disability, including information from health professionals as appropriate and as needed)
- Cooperate with the employer on an ongoing basis to manage the accommodation process
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What is the employer's responsibility when an employee asks for accommodation?
- Accept requests for accommodation from employees in good faith.
- Ask only for information they need to provide the accommodation.
- Take an active role in looking at accommodation solutions that meet individual needs.
- Deal with accommodation requests as quickly as possible, even if it means creating a temporary solution while developing a long term one.
- Respect the dignity of the person asking for accommodation and keep information confidential.
- Cover the costs of accommodation including any needed medical or other expert opinions and documents.
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How is harassment defined in the workplace?
- When an employee is treated in a disparate manner on any of the prohibited grounds.
- Verbal abuse or threats
- Unwelcome jokes, remarks, innuendo or taunting
- Displaying of pornographic, racist or other offensive or derogatory pictures
- Practical jokes causing awkwardness & embarrassment
- Unwelcome invitations or requests or intimidation
- Leering or other gestures
- Condescension or paternalism that undermines self-respect
- Unnecessary physical contact like touching, patting, pinching
- Physical assault
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How do you determine harassment in the workplace?
- Requires a “course of conduct” i.e., a pattern of behaviour or more than one incident - usually “A reasonable person ought to have known that such behaviour was unwelcome”
- Re sexual harassment:Was the conduct sexual in nature?
- Was the conduct unwelcome?
- Did the conduct detrimentally affect the work environment or lead to adverse job-related consequences?
- Poisoned work environment
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Briefly describe a "Poisoned Work Environment".
- Hostile
- Unwelcoming
- Uncomfortable
- Ongoing insults, degrading comments, or actions
- Exposure to negative treatment
- Based on a ground in the Code
- Not just based on “personal views”.
- Facts must show an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions.
- The employee making the complaint does not have to be the “target”
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What is the company's responsibility in managing harassment?
- Develop a written policy
- Make the policy a term of employment
- Educate employees
- In orientation
- In workshops
- Monitor the workplace -- MBWA
- Introduce ways to encourage employees to come forward e.g., a hotline, open door policy, employee relations representative
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What are some individual remedies for harassment violations?
- THE COMPANY MAY BE ORDERED TO:
- Apologize
- Stop the discriminatory practice
- Restore the rights, opportunities, or privileges that were denied
- Reinstate the individual
- Compensate for Lost wages, Hurt feelings, Pay fines
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What are some public interest remedies for harassment violations?
- TO ENSURE DISCRIMINATION WILL NOT REOCCUR THE ORGANIZATION MAY BE ORDERED TO:
- Write a policy
- Hire a consultant
- Educate themselves on human rights issues
- Train employees and managers
- Introduce an employment equity program
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What is the policy for companies that wish to retaliate against employees who file a complaint under the Human Rights Act?
- It is against the law for the employer (managers, supervisors, coworkers) to try to get even with an employee who filed charges or a complaint under the Human Rights Act.
- Those who file charges, testify or participate in any human rights actions are protected by law.
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What are some overall responsibilities of managers?
- Monitor the workplace
- Stop discrimination/harassment
- Take requests for accommodation seriously
- Work with the HR Dept to resolve matters
- Realize that managers are held to a higher standard
- Understand that individuals can be named in human rights complaints
- This is a WARNING to managers who do not take requests for accommodation seriously are a party to discrimination or harassment allow discrimination or harassment to continue do not take action to stop it retaliate against someone who files a complaint or acts as a witness
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