The Advisor

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Getting it Right on Human Rights

By Anna Cook and Neala Kielley


on-unionized, all provincially-regulated employers in Newfoundland and Labrador are required to abide by the Human Rights Act, 2010 (the Act). If your business also operates outside Newfoundland and Labrador, you are required to abide by the human rights legislation in that province. While the “bones” of the legislation are often the same, some important differences in each province should be considered.


In the employment context, human rights laws affect

- employer advertising, recruiting, hiring, and firing practices

- employee job requirements, and tools necessary to perform the work

- physical layout of employer premises

- employer workplace policies, procedures, and practices


Discrimination

The Act prohibits employers from discriminating against current and prospective employees based on certain personal characteristics set out in the applicable law. In Newfoundland and Labrador, the protected characteristics are race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability and perceived disability, disfigurement, sex (including pregnancy), sexual orientation, marital status, family status, gender expression and/or gender identity, source of income, and political opinion. In Newfoundland and Labrador, employers are further prohibited from discriminating against an individual on the basis of a criminal conviction unrelated to employment.


Direct vs. Indirect Discrimination

Direct discrimination arises where a requirement or qualification is discriminatory on its face. “Wanda’s Donut Shop is looking for young men with donut-making experience” is an example of direct discrimination because it excludes women and older men from the selection process, and 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. “Wanda’s Donut Shop seeks applicants for donut-making position. Applicants must celebrate Christmas” would have an adverse effect on those who don’t observe, or celebrate, Christmas, and could constitute discrimination on the basis of religion. Direct and indirect discrimination are prohibited under the Act.


Accommodation

Employers have a duty to accommodate the employee’s status or condition to the point of undue hardship. What this duty entails will vary in each case, however 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.


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. What constitutes undue hardship for one workplace may not be for another. Undue implies the employer will suffer some amount of hardship in its accommodation efforts. More than a minor inconvenience must be shown before the employee’s right to accommodation can be defeated.


Practical Tips

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



Anna Cook


Anna Cook is a partner at Cox & Palmer,

St. John’s, where her practice focuses

primarily on corporate and commercial,

employment and labour, and privacy

law. She handles matters including

commercial financings, commercial real

estate purchases, financing and leasing,

share sales, asset sales, mergers and

acquisitions, and joint ventures. She has

extensive experience acting for clients

ranging from small-business start-ups

to large multinational and international

corporations and has advised businesses at every stage of the business cycle. A strong supporter of women in business, Anna is an active NLOWE member and a

presenter for the NLOWE Entrepreneur

of the Year Awards.



Neala Kielley


Neala Kielley is an associate with Cox & Palmer in St. John’s, where she primarily practices in the areas of labour and employment law, administrative law, human rights law and litigation.

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