MHRM6700

I will refer in class to an issue about whether a unionized employee can file both a grievance and a human rights complaint alleging the employer has violated the Human Rights Code.

The answer is that usually the employee can file both, but in practice, often only one of the complaints will get litigated. Arbitrators appointed under a collective agreement to hear a grievance have been given the power and the responsibility to apply and interpret human rights codes.  That power comes from (in Ontario), section 48(12)(j), which says arbitrators can “interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.” That means that unionized employees can ‘grieve’ a breach of the Human Rights Code under the collective agreement and have their complaint heard by an arbitrator.

If the employee then also filed a human rights complaint complaining about the same alleged discrimination, the employer can ask the human rights tribunal to defer the hearing of the complaint until after the arbitrator has decided the case.  The Human Rights Tribunal relies on Rule 14 of its rules of procedures to do this.

Here is a typical case (Parris v. Toronto) in which the Tribunal refuses to proceed with a complaint because it is still being dealt with in a grievance.

If an arbitrator then decides the discrimination issue, the human rights Tribunal can then dismiss the HR complaint, as described in Rule 22:

The Tribunal may dismiss all or part of an application where it determines, under section 45.1, that another proceeding has appropriately dealt with the substance of part or all of the application.

Here is case (Virgin v. Dollar) in which the Tribunal ruled that the settlement of a grievance that alleged discrimination was sufficient to meet the threshold in section 45.1, so that the Tribunal dismissed an HR complaint on the basis that a settled grievance had ‘dealt with’ the substance of the human rights complaint.

Hi everyone.

For your wiki presentations, I will put up your wiki page on the screen and you should walk through it in some format.  Obviously, you won’t have time to talk about everything on your wiki, so just focus on a few hi-lights, keeping in mind the objective is to inform your audience as best as you can what the ‘test’ is that arbitrators apply to your scenario.

Aim for about 15 minutes or so.   Cheers, David

Hi everyone.  Labour lawyer Erin Kuzz of the law form Sherrard Kuzz is coming this Saturday afternoon to speak with you.  Erin advised employers on all employment law related matters.  She will talking about the duty to accommodate.  So bring an questions you have about this complex area of HR responsibility.

Last class, Barinder asked about the fact that many job advertisements ask whether the applicant is fluent in English or French.  We never came back to his question, but I thought I’d comment on it here.

The Code doesn’t prohibit discrimination on the basis of language directly.  However, a requirement to speak a certain language would likely raise other prohibited grounds, like ‘ethnic origin’, ‘ancestry’, and ‘place of origin’, since the language one speaks is usually tied to the language their parents spoke and the community in which they were raised.  That means that a requirement to speak fluent French, for example, would likely discriminate indirectly against someone from a country or location (like Toronto?) where French is not spoken.  

Since a requirement to speak a particular language will often indirectly discriminate against people who do not speak that language, it is presumably a violation of Section 23 of the Code to include a question about language proficiency on a job application form.  

If, however, the organization is a ’special service organization’ of the sort identified in section 24(1)(a), then a requirement to speak a certain language may be permissible if it is ‘reasonable and genuine one because of the nature of the employment’.  Or, if the ability to speak the language is a “bona fide” occupational requirement of the job, then the discrimination may be ’saved’ or allowed by virtue of Section 11(1) and 11(2) of the Code, which permits indirect discrimination where a qualification is a BFOR, and no accommodation short of undue hardship to the employer could enable the person to meet the language requirement. This would mean, for example, the employer would need to consider if speaking the language fluently is really an essential part of the job, or whether a person could perform the job without actually having to speak the language.

If fluency in the language is a BFOR, and accommodation short of undue hardship is not possible (section 11), or is a reasonable and genuine job requirement for a special service organization (under section 24(1)(a)) , then the employer can ask about the language fluency in an interview (but not in a job ad or job application form).  That’s because section 24(3) permits questions to be asked about a prohibited ground in an interview where discrimination on that ground is permitted by the Code.

So, this is a little bit confusing.  But it does seem clear that questions about language proficiency are not permitted on application forms.  Sometimes, depending on the job and the nature of the employer’s business, a language requirement may be lawful and may be asked about in the interview stage.

The Ontario Human Rights Commission’s position on language discrimination is set out in this report.

In a recent case ( Taylor v. Oraclepoll Research), the Tribunal dismissed a complaint by a worker claiming she had been dismissed during her training period because of her poor language skills because the worker had checked ‘disability’ as the basis of her discrimination.  According to the discussion above, she may have had a complaint of discrimination on the basis of ethnic origin, place of origin, or ancestry, but she didn’t understand that.  Do you think the tribunal should help the complainant formulate the complaint (i.e. tell her her complaint is better formulated under another ground), or just dismiss the case because it is improperly pleaded?

Hi all.  I have posted the four supplemental readings for class three on the link above called Readings, or click here.   

I’ve heard from most  of you now about essay topics.  If you haven’t connected with me yet, please do so this week.   Cheers, David

Here is the Ontario Human Rights Commission pamphlet on human rights issues in hiring and recruitment.  Pay attention to what questions are lawful and which are not.

Now consider my posts on application forms by Cara, Starbucks, and Coach.

We will look at this in the second class.

HI everyone.  I’m looking forward to seeing you all again tomorrow.  Sonia just pointed out to me that reading by Grossman on what every HR manager should know about the employment contract was left out of the kit.  This was apparently due to the fact that the bookstore people could not obtain permission to copy it in time.  I hadn’t noticed this.  I will try to find and copy the original hard copy of the article and bring it tomorrow.  Obviously you won’t be able to read it beforehand.

Cheers, David

Hi everyone, here is a link to another article that you can download for free (Click the DOWNLOAD button, and then the button that says SSRN) by a Canadian labour law professor that explores the relationship between declining union membership rates in North America and rising income inequality.  This is the same basic argument President Obama is making.

You may find it useful in formulating your argument on the Minister’s Memo assignment.  There are some good statistics and charts used in support of his argument.

Cheers, David

Hi all.  You will be receiving a mysterious email that says this:

Someone (probably you, from IP address 130.63.11.186) requested that we send

you a new password for ADMS 6700 Wiki

(http://www.fsc.yorku.ca/york/ddoorey/labourrelations/index.php).

The password for user “your name” is now “XXXXXXXX”.

You should log in and change your password now.

 

If someone else made this request or if you have remembered your password

and you no longer wish to change it, you may ignore this message and

continue using your old password.

 

This email gives you your username and password for logging into the Wiki Page.  You will need this email and username and password when we talk about the wiki assignment next class, so please hang onto the information.

Cheers, David

Hi everyone.  Here are some posts I have done on my main blog about the American labour law reform debates, which link to some useful sources.  Some of you may find these posts useful in working through your first assignment.

Obama on Labor Law Reform

Obama on Labour Law Reform, Again

Economists Support Move to Card-Check

Harpers’ Magazine on Labor Law Reform

Brofenbrenner on Employer Responses to Union Activity

Washington Post Supports Union Access to Employer Property

New York Times Supports Move to Card-Check

Stone on Labor Law Reform

Epstein on Labor Law Reform