Employment Equity and Workplace Rights
Employment Equity is the term developed by Judge Rosalie Silberman Abella, Commissioner of the Royal Commission on Equality in Employment (1984), to describe a distinct Canadian process for achieving equality in all aspects of employment.
This term was meant to distinguish the process from the primarily American "Affirmative Action" model as well as to move beyond the "Equal Opportunity" measures available in Canada at that time.
Recognizing that systemic discrimination was responsible for most of the inequality found in employment, the Commission outlined a systemic response and chose the term "Employment Equity" to describe the process.
Employment Equity is an on-going planning process used by an employer to:
- identify and eliminate barriers in an organization's employment procedures and policies;
- put into place positive policies and practices to ensure the effects of systemic barriers are eliminated; and
- ensure appropriate representation of "designated group" members throughout their workforce.
The goal of Employment Equity is to:
- eliminate employment barriers for the four designated groups identified in the Employment Equity Act : women, persons with disabilities, Aboriginal people, members of visible minorities;
- remedy past discrimination in employment opportunities and prevent future barriers;
- improve access and distribution throughout all occupations and at all levels for members of the four designated groups;
- foster a climate of equity in the organization.
In Canada, there are two Federal Employment Equity Programs:
Legislated Employment Equity Program (LEEP):
Under the LEEP, the following employers are subject to the Employment Equity Act:
- All federally regulated employers with 100 or more employees, including organizations in industries such as banking, communications, and international and interprovincial transportation. In 2000, there were approximately 394 such employers (private-sector employers and Crown corporations), representing approximately 612,344 employees.
- All federal departments, representing approximately 155,360 employees. Other parts of the public service, including the Canadian Forces and the Royal Canadian Mounted Police may be specified by order of the Governor in Council, on the recommendation of the Treasury Board, as being required to comply with the EE Act.
Federal Contractors Program (FCP):
Under the FCP, employers with 100 or more employees who have secured a federal goods or services contract of $200,000 or more are required to sign a certificate of commitment to fulfill their mandated goal of implementing employment equity in their workplace.
As of May 1, 2002, there were approximately 891 federal contractors, representing approximately 1,082,184 employees.
For more Employment Equity information, click on the following:
Workplace Rights and the Duty to Accommodate
Many Canadians are unsure of their legal rights in regards to religious dress and holidays. However, your employer has a duty to take measures to eliminate disadvantages to employees, prospective employees or clients that result from a rule, practice or physical barrier that has or may have an adverse impact on individuals or groups protected under the Canadian Human Rights Act or identified as a designated group under the Employment Equity Act.
The following excerpts outline your religious rights under Ontario’s Human Rights Code. For the full policy, visit http://www.ohrc.on.ca/en/resources/Policies/PolicyCreedAccomodEN?page=PolicyCreedAccomodEN-Contents.html
[***Note to web designer: the endnotes are all in one document here: http://www.ohrc.on.ca/en/resources/Policies/PolicyCreedAccomodEN?page=PolicyCreedAccomodEN-ENDNOTES.html#Heading423 -- not sure if there’s an easy way to cross-reference?]
The Ontario Human Rights Commission’s Policy on Creed and the Accommodation of Religious Observances
Dress codes, work schedules or shift work sometimes impact adversely on individuals because of religious requirements. When this happens, the obligation to accommodate the individual, based on the needs of the group, is triggered under the Code.
1. Dress Codes
Workplaces, services and facilities frequently have rules about dress. These may take the form of having to wear a particular uniform, having to wear protective gear, or a requirement that no person may wear a head covering. These rules may come into direct conflict with religious dress requirements. When they do, there is a duty to accommodate the person, short of undue hardship.
Example: A school requires its students to wear a particular uniform which prohibits any head covering. A Muslim girl wears a head covering as part of her religious observance. The school authorities have a duty to accommodate such a student and to permit her to wear the head covering.
Example: Certain creeds do not permit men to cut their hair. Workplaces that prefer to employ men with short hair are acting in a discriminatory manner, unless they fall under a legal exception under the Code. It should be noted that for health and safety reasons, an employer may ask employees to contain their hair with a net or other appropriate head covering.
Example: A school principal tells the parents of a Sikh child that wearing a turban or kirpan to school is not allowed. However, the "five K's" and related religious rules that include the wearing of a turban by Sikh men are part of the Sikh faith. In similar cases, Boards of Inquiry have rejected arguments by schools based on safety, on the grounds that wearing a ceremonial kirpan does not raise sufficiently compelling safety concerns. Schools must modify their policies to accommodate children seeking to modify the application of the rule for religious reasons.26
Considerations when dealing with dress codes:
- what is the exact nature of the religious observance?
- what is the reason for the uniform or dress code?
- what measures can be taken to accommodate the person? Are there alternatives?
- are there health or safety factors involved?
- if so, do they involve the health or safety of the employee alone or are there consequences for other employees?
- if so, has the employer shown that to accommodate the employee would create a health or safety hazard that would amount to undue hardship for the employer?
As a rule, uniforms such as school uniforms and work uniforms that have no health or safety rationale can be modified easily to permit the person concerned to wear the required item(s) of clothing. Clothing or gear with a health or safety rationale may constitute a reasonable occupational requirement. Nevertheless, the employer is obliged to accommodate the employee, for example, by seeing whether the gear can be modified to permit the person to wear the religious dress safely (subject to the undue hardship test), or by examining whether the employee can be transferred to another job that may be available in the company that does not require the clothing or gear.
2. Break Policies
Some religions require that their members observe periods of prayer at particular times during a day. This practice may conflict with an employer's regular work hours or daily routines in the workplace. The employer has a duty to accommodate the employee's needs, short of undue hardship.
Possible forms of accommodation:
- a modified break policy;
- flexible hours, and/or
- providing a private area for devotions.
3. Recruitment Procedures
A job applicant's religion cannot be used as a selection criterion for employment. There is an exception if the workplace qualifies as a "special interest" organization under the Code, that is, one that is a religious, educational, or other social institution or organization that is primarily engaged in serving the interests of persons who are identified by their creed (s. 24(1)(a) of the Code). Subject to this exception, attempting to obtain information concerning the applicant’s creed at the pre-interview stage of a recruitment process is not acceptable.
Consequently, invitations to apply for employment and job application forms cannot contain:
- questions about availability for work that are asked in a manner that reveals the applicant's creed;
- questions designed to reveal that religious requirements may conflict with the prospective employer’s work schedules or workplace routines, or
- inquiries as to religious affiliation, places of worship that are attended, or customs observed.
However, nothing prevents the employer from asking questions about creed at a personal employment interview, if the questions are otherwise permitted by the Code. A list of questions that can and cannot be asked during the employment application process can be found in the Commission's publication, Employment Applications: Forms, Interviews.
Example: It is permitted at an employment interview to ask religious membership for a teaching position in a denominational school if the job involves communicating religious values to students.
If a person has been offered employment, the person has the obligation to notify the employer of any religious requirements that are relevant to the performance of his or her duties, and to request accommodation.
4. Religious Leave
When an employee requests time off to observe a holy day, the employer has an obligation to accommodate the employee. The extent of the accommodation required is an issue that comes up frequently: does the person have to be paid? Until what point? What about unpaid leave?
Two Christian holidays (Christmas Day and Good Friday) are also statutory holidays in Ontario. This is sometimes held up as evidence of the "non-discriminatory" nature of these holidays. Some employers have argued that because these holidays are now statutory, the employer has no obligation to accommodate employees by paying for other religious holidays. The Supreme Court of Canada has stated that this approach is incorrect.
In Chambly27, the Court examined the issue of whether the "secularized" nature of Good Friday and Christmas can excuse a policy alleged to be discriminatory based on religion because it is based on the Christian calendar. The Court wrote:
Here the schedule of work is based upon the Catholic calendar of holidays. Nonetheless, I think the calendar should be taken to be secular in nature and thus neutral or non-discriminatory on its face. It will be remembered that the majority of the Court of Appeal determined that since the calendar did not have any religious aims, it was not discriminatory. With respect, I think this was an erroneous conclusion. It is true that this approach can properly serve to determine that there has been no direct discrimination. However, the analysis cannot stop there. Consideration must
still be given to the effect of the calendar in order to determine if there is indirect or adverse effect discrimination.28 [Emphasis in original.]
In other words, the secularized nature of traditional Christian holidays may remove the taint of direct discrimination but not of constructive discrimination.
Example: In Chambly, three Jewish teachers employed by a Catholic school board were denied access to the special purpose paid-leave provisions in the collective agreement so that they could observe Yom Kippur. They were told instead that they could take the day off, but unpaid. The Court held that the school board's leave policy had an adverse effect on Jewish teachers despite the secularized nature of Good Friday and Christmas. The analysis which led to the Court's finding of adverse effect is set out by Mr. Justice Cory.
... Christian holy days of Christmas and Good Friday are specifically provided for in the calendar. Yet, members of the Jewish religion must take a day off work in order to celebrate Yom Kippur. It thus inevitably follows that the effect of the calendar is different for Jewish teachers . . . [t[hey . . . must take a day off work while the majority of their colleagues have their religious holy days recognized as holidays from work. In the absence of some accommodation by their employer the Jewish teachers must lose a day's pay to observe their holy day. It follows that the effect of the calendar is to discriminate against members of an identifiable group because of their religious beliefs. The calendar or work schedule is thus discriminatory in its effect.29
The Court then examined the nature of the accommodation which would be required to alleviate the adverse effect. It rejected the view that the school board's offer of unpaid leave to the Jewish teachers was sufficient accommodation. Mr. Justice Cory wrote:
If a condition of work existed which denied all Asian teachers one day's pay, it would amount to direct discrimination . . . The loss of one day's pay resulting from direct discrimination would not be tolerated . . . and would fly in the face of human rights legislation. Similarly adverse effect discrimination resulting in the same loss cannot be tolerated unless the employer takes reasonable steps to accommodate the affected employees30 [emphasis added.]
The Court concluded religious leave should have been available under the special purpose paid-leave provision in the collective agreement. This did not cause undue hardship to the school board.
A number of general principles emerge from this case that are not limited in their application to the particular terms of the collective agreement examined in Chambly.
- The employer has a duty to consider and grant requests for religious leave, including paid religious leave, unless to do so will cause undue hardship.
- Equality of treatment requires at a minimum that employees receive paid religious days off, to the extent of the number of religious Christian days that are also statutory holidays, namely two days (Christmas and Good Friday).
- The number of paid days may be three under some collective agreements which also make Easter Monday a holiday.
- Beyond this point, i.e., two or three days, individuals may still seek accommodation. For example, measures might include additional paid leave days such as floating days or compassionate leave days, if such exist under company policy or collective agreements, or through unpaid leave.
- The standard for all accommodation requests is undue hardship, which places a specific burden on the employer to produce evidence to the standard of undueness of the hardship and of its effect.
5. Flexible Scheduling
The purpose of this measure is to allow a flexible work schedule for employees, or to allow for substitution or rescheduling of days when an employee's religious beliefs do not permit him or her to work certain hours. For example, Seventh Day Adventists and members of the Jewish faith observe a Sabbath from sundown Friday to sundown Saturday. Observant members of these religions cannot work at these times.
Flexible scheduling may include: alternative arrival and departure times on the days when the person cannot work for the entire period, or use of lunch times in exchange for early departure or staggered work hours. Where the person has already used up paid holy days to which he or she is entitled, the employer should also consider permitting the employee to make up time lost or use floating days off.
6. Rescheduling and the Employment Standards Act
In some workplaces, rescheduling is a practicable accommodation measure but it poses a financial difficulty because of the requirement of paying wages at a premium rate, typically at one and a half times the regular rate, to individuals who work on Good Friday
and Christmas. In Ontario, the Employment Standards Act, R.S.O. 1990, E-14 provides that:
. . . where an employee works on a public holiday31, the employer shall pay to the employee for each hour worked a premium rate of not less than one and one-half times the employee's regular rate and, where the employee is entitled to the holiday with pay, his or her regular wages in addition thereto.
The requirement of premium pay for work done on public holidays may present a financial obstacle to accommodation in that it may constitute undue hardship. However, subsection 25(3) of the Employment Standards Act allows for another alternative, namely the substitution of public holidays:
s. 25(3) . . .where a public holiday falls upon a working day for an employee, an employer may with the agreement of the employee or the employee's agent substitute another working day for the public holiday which day shall not be later than the next annual vacation of the employee, and the day so substituted shall be deemed to be the public holiday.
If a person seeks accommodation and if s. 25(3) of the Employment Standards Act presents an alternative, rescheduling would constitute an acceptable form of accommodation.
Since the employer and the union have a joint legal obligation to accommodate employees as established in Renaud32 and other cases, the employer and the union should be free to enter into agreements that are more generous than the minimum standards set by the Employment Standards Act, according to s. 4 of that Act:
s. 4. . . . right, benefit, term or condition of employment under a contract . . . that provides in favour of an employee a higher remuneration in money, a greater right or benefit or lesser hours of work than the requirement imposed by an employment standard shall prevail over an employment standard.8. EXCEPTIONS
Discrimination or unequal treatment may be legally defensible in certain circumstances.
1. Participating in Special Interest Organizations
First, s. 18 of the Code provides that religious, philanthropic, educational, fraternal or social institutions which are primarily engaged in serving the interests of persons who are identified by their creed, may give priority to persons of the same creed with regard to participation or membership.
2. Employment in Special Interest Organizations
Second, s. 24(1)(a) of the Code provides that religious, philanthropic, educational, fraternal or social institutions that are primarily engaged in serving the interests of persons identified by their creed may employ or give preference in employment to persons similarly identified, if the qualification is reasonable and in good faith in relation to the nature of the employment.
Example: An educational institution such as a denominational school may prefer to employ teachers of the same denomination or faith. This hiring policy would be permitted if the teacher's own faith is related to the professional functions that teachers are expected to perform in denominational schools. However, this same defence is not available to the school with respect to the hiring of maintenance staff. The school must show that the requirement of belonging to a particular faith has a rational connection to the essential duties of a job.
3. Reasonable and Bona Fide Occupational Requirements, Qualifications or Factors
If a requirement, qualification or factor is neutral or nondiscriminatory on its face, it may nonetheless have an adverse impact effect and may be discriminatory under s. 11 of the Code. However, the Code provides a defence if the requirement, qualification or factor is reasonable and in good faith, and if the needs of the persons affected cannot be accommodated without undue hardship to the person responsible for accommodating those needs.
Example: A policy that requires all employees to work on a day which coincides with the holy day of a particular creed may be defensible, despite its adverse impact on some employees, because the nature of the business is such that a certain day of the week is critical to the operations of the establishment. However, the employer has a duty to accommodate an employee, if this can be accomplished short of undue hardship to the employer. Administrative inconvenience does not constitute undue hardship.
- The requirement in question must be established in good faith with the intention of achieving its stated business objective, and not as a means to avoid the purpose of the Code.
- The requirement must be objectively connected to its stated business purpose.
- The requirement should be the least discriminatory alternative available, other things being equal.
Further Reading and Resources
Employment Equity Act
Ontario Employment Standards Act
Employment Equity Policy in Canada: An Interprovincial Comparison
This study by researchers at Queen’s University presents findings from research comparing employment equity policies in Canada’s 10 provinces and the federal government. The authors approach the issue of employment equity from the standpoint of challenging systemic oppression. The report was funded by Status of Women Canada and published in 2000.
Ontario: Lessons from the Rise and Fall of Employment Equity Legislation from the Perspective of Rights Advocacy
This Ontario-focussed case study was published by the Canadian Race Relations Foundation in 2003. The study analyses the activities of the Alliance for Employment Equity (AEE), a grassroots non-governmental coalition that emerged as a unifying centre for equity advocates during the height of debate in Ontario in the 1990s.
Understanding the Racialization of Poverty in Ontario – In Employment in 2007
Published by the Colour of Poverty campaign, this concise two-page fact sheet clearly demonstrates how employment conditions and practices contribute to the racialization of poverty in Ontario. To download the full set of 10 fact sheets, visit www.colourofpoverty.ca
HRSDC Canada Website on Equality in the Workplace
Learn about your rights and the resources available to you by reading more about pay equity, the Racism-Free Workplace Strategy and the Employment Equity Act, which promotes equitable representation for women, Aboriginal peoples, persons with disabilities and visible minorities who work in federally regulated workplaces.
Aboriginal Employment Preferences Policy
The Aboriginal Employment Preferences Policy provides that First Nations employers can, in accordance with the provisions of the policy, give preference in employment to Aboriginal persons. The CHRC supports the aspirations of aboriginal communities for economic self-sufficiency and self-government and views the social and economic situation of Aboriginal people as among the most pressing human rights issues facing Canada. The constitutionally recognized rights of the Aboriginal Peoples, including the inherent right to self-government, and the conditions of disadvantage to which most Aboriginal people are subject, call for special measures on the part of the Commission. The Aboriginal Employment Preferences Policy is one such measure.
Workplace Rights and the Duty to Accommodate
Your Rights at Work: An Action Guide for Fair Employment
Available from the Workers Action Centre in English, French, Spanish, Hindi and Tamil, this booklet covers topics such as: starting a new job; wages; hours of work; leaves & time off; workplace injuries; discrimination and harassment; and termination and severance. Click here for their pamphlet on workplace harassment: http://www.workersactioncentre.org/Documents/pdfs%20Resources/Factsheets/WorkplaceHarrasment08.pdf
The Quebec Kirpan Case
In 2001, twelve-year-old Gurbaj Singh Multani accidentally dropped his kirpan – a ceremonial dagger – in his schoolyard, touching off a dispute that would eventually wind up in the Supreme Court of Canada. In 2006, the Supreme Court ruled 8-0 that a total ban of the kirpan in schools would violate the Charter of Rights because it would infringe on the Charter’s guarantees of religious freedom. Visit the website for the full timeline.