with Stephen Hammond
Tip #20 — UNDERSTAND THE LEGAL ASPECTS OF DISCRIMINATION
In 1978 Theresa, a full-time employee of seven years, told her boss on Tuesday that she would not be able to work her scheduled shift on Saturday, as she joined the Seventh-Day Adventist Church. Seventh-Day Adventists strictly observe the Sabbath, which runs from sundown Friday to sundown Saturday.
Most of the money in retail was made from Thursday evening until Saturday evening as there was no Sunday shopping in 1978. All full-time employees knew they had to work three out of four Saturdays and two out of four Friday evenings per month. Hence, it should have been no surprise to Theresa when she was downgraded to part-time work on a contingency basis amounting to half the hours and considerably reduced benefits. From the employer’s perspective, this seemed generous under the circumstances and after all, what would the other employees think if Theresa was the only exception?
From a legal standing, the retailer seemed to be on solid ground. She wasn't fired because of her religion. She was fired because she couldn't work the hours she was hired to work. Yet Theresa took the store to the Human Rights Commission, claiming this was discrimination based on her religion. She lost at the Human Rights Board of Inquiry, the Divisional Court and the provincial Court of Appeal. But Theresa wouldn't give up and at the Supreme Court of Canada, she won.
Over the years, the courts have used various wording and formulas, but as it stands, if you are going to discriminate against an employee or a customer based on a human right protected ground, you better look at all the options to see if you can accommodate that person.
When people think about discrimination, they usually think about direct discrimination - as in, "I won't hire any women." However, discrimination can also be indirect; it's sometimes called "adverse effect," "adverse impact" or "indirect discrimination." It's characterized by an employer with a policy that applies to everyone equally, but has an undue negative impact on those with certain human rights characteristics.
Let's say your policy is, "I'll hire only people at least six feet tall." Not only does this discriminate against people under six feet; it negatively impacts women more than men. As well, it negatively impacts men and women from countries or regions of the world where individuals are typically not as tall as in Canada. Height is not a protected human right, but sex, ancestry and place of origin are.
1) Intention doesn't matter - your intention might seem to be neutral to all employees, but remember that if the impact on one group, protected by a human right, is more harmful than to others, then intention doesn't matter. It's the impact that counts. If you're not sure if something is discriminatory, or may cause a legal problem, then talk to someone with more information on this subject.
2) Don't worry about everyone "joining up" – because they won’t. If we take our example of Theresa above, other employees might say, "Well, I'll start going to that church!" Here's where you let them know you've done your homework on Theresa. Try responding, "When you join that church and abide by their principles, as Theresa is doing, come see me and I'll see what we can do." What's the likelihood that every one on your staff is going to join the same church and pass muster with the church's leaders as committed and genuinely involved? What's the chance of just one other person doing so??
3) Suggest common sense – as this is what’s involved. When other employees don't like what's going on, or they don't think another employee is truly facing discrimination, try to bring forward reason and common sense. Many times things get out of hand because people dig in their heels. It might sound trite, but let calmer heads prevail.
This is TIP #20 of 26 BI-WEEKLY TIPS for managers and supervisors.
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