Getting it Right on Human Rights
Regardless of size or sector, unionized or non-unionized, all provincially regulated employers in Newfoundland and Labrador are required to abide by the Human Rights Act, 2010 (the “Act”). It should also be noted, however, that if your business also operates outside of NL, you are required to abide by the human rights legislation in that province. While the “bones” of the legislation are often the same, there are some important differences among each province that should be considered.
In the employment context, human rights laws affect:
- The employer’s advertising, recruiting, hiring and firing
- The employee’s job requirements and tools necessary to perform the work.
- The physical layout of the employer’s premises.
- The employer’s workplace policies, procedures and practices.
The Act prohibits employers from discriminating against their employees (including prospective employees) based on certain personal characteristics set out in the applicable law. In NL, these protected characteristics are: race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability/perceived disability, disfigurement, sex (which includes pregnancy), sexual orientation, marital status, family status, gender expression and/or gender identity, source of income and political opinion. Additionally, in NL, employers are further prohibited from discriminating against an individual on the basis of a criminal conviction that is unrelated to the employment.
Direct vs. Indirect Discrimination
Direct discrimination arises where a requirement or qualification is discriminatory on its face. For example: “Wanda’s Donut Shop is looking for young men with donut making experience” is a clear example of direct discrimination as it excludes women and older men from the selection process, and thus constitutes discrimination based on sex and age.
Indirect discrimination arises when a requirement or qualification, although not discriminatory on its face, has an adverse effect on an individual by any one of the prohibited grounds of discrimination. For example: “Wanda’s Donut Shop seeks applicants for donut making position. Applicants must celebrate Christmas.” The requirement of celebrating Christmas would have an adverse effect on those who don’t observe or celebrate Christmas, and therefore, could constitute discrimination on the basis of religion.
Both direct and indirect discrimination are prohibited under the Act.
As part of the obligation not to discriminate against employees, employers have a duty to accommodate the employee’s status or condition to the point of undue hardship. Exactly what this duty entails will vary in each case, but in general it requires the employer to consider the employee’s status/condition and limitations and modify – wherever reasonably possible – the employee’s duties, terms and conditions of employment accordingly.
The assessment of undue hardship is contextual and must be done on a case-by-case basis. There is no “hard and fast rule” on what comprises undue hardship, and moreover, what constitutes “undue hardship” for one workplace may not be for another. Notably, the use of the term ‘undue’ implies that the employer will suffer some amount of hardship in its accommodation efforts. Accordingly, more than a minor inconvenience must be shown before the employee’s right to accommodation can be defeated.
Overall, employers should:
- Use common sense, creativity and flexibility.
- Always err on the side of inclusivity.
- Consider all reasonable options.
- Practice best efforts when accommodating employees in the workplace.
- Seek guidance and advice early in the process.
(Featured Article in NLOWE’s The Advisor – Fall 2020 issue)