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Posts tagged: discrimination in hiring

Will the Pay Transparency Act Narrow the Gender Pay Gap? Bill 57 Halts our Chance to Find Out

By , December 28, 2018 10:38 am

Despite pay equity and anti-discrimination laws, female workers in Ontario earn less than their male counterparts. To address this gender wage gap, shortly before 2018 provincial election the Liberal government passed the Pay Transparency Act (“PTA”), putting the onus on employers to publicly report gender pay to build fairer workplaces. It was scheduled to take effect on January 1, 2019.

The PTA would have created numerous requirements for employers regarding compensation disclosure and filing pay transparency reports with the government. Specifically, the PTA prohibited all employers from either directly or indirectly asking job candidates about past compensation. It also would have required that employers post a compensation rate or range for all publicly advertised job postings, while prohibiting employers from reprising against employees who make inquiries about compensation practices.

Shortly after the election however, Premier Ford halted the coming into effect of the PTA by way of Bill 57.

On December 6, 2018, Bill 57, the Restoring Trust, Transparency and Accountability Act, 2018, received Royal Assent. It delayed the implementation of the Pay Transparency Act, 2018 (“PTA”) from January 1, 2019 to “a day to be named by proclamation of the Lieutenant Governor.”

What is the Status of Ontario’s Pay Transparency Act?

It is not known when the PTA will come into force. If I were a betting person I would say not while Doug Ford is Premier.

Since the PTA has been postponed, employers are currently not required to create pay transparency reports and may limit their employees’ ability to disclose their compensation information.

Further, employers do not have to determine a compensation range before posting a job; they can continue to determine compensation rates based on a variety of factors such as the candidate’s experience and qualifications.

For more information on an employee’s pay transparency obligations, contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Human Rights Damages: Employer ordered to pay Firefighter $ 10 000 After a 10 Year Ordeal

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By , July 6, 2012 4:32 pm

Human Rights Damages

The Ontario Human Rights Tribunal has the jurisdiction to order human rights damages. A recent human rights case may discourage employees from filing a complaint under the Ontario Human Rights Code (Code) however it is a cautionary tale for employers.

The Claim: The City of Toronto Fire Service withdrew a conditional offer of employment to Robert Davis when it learned of a prior knee injury. The City claimed Mr. Davis knowingly failed to disclose the true state of his medical history and that he had a prior knee injury resulting in severe osteoarthritis.  The City claimed this resulted in a breach of trust that warranted the withdrawal of the conditional offer of employment. Further, the City claimed Mr. Davis’ medical condition raised a significant safety concern, which it was entitled to take into account in its decision not to hire him. Mr. Davis filed a complaint alleging the job offer was revoked because of his disability or a perceived disability.

The Time from Complaint to Decision: The events at the heart of the complaint occurred in 1999 and 2000.  The complaint was filed with the Ontario Human Rights Commission in December 2000. The first 9 days of hearing took place in October and November of 2006. The next 21 days of hearing ended in September 2009. The Ontario Human Rights Tribunal (Tribunal) released the decision on April 21, 2011.

The Decision: The Tribunal concluded that (i) the City discriminated against the complainant when it denied him employment as a firefighter at least partly because of a disability or perceived disability; and, (ii) Mr. Davis’ lack of full disclosure during the hiring process would have independently led the City to refuse him employment.

The Remedy: The City was ordered to pay Mr. Davis $10,000 for the injury to dignity arising out of the discrimination

Lessons to be learned

1. If an employee or a job applicant files a complaint with the Tribunal then the time and expense associated with defending the claim can be staggering. To reduce the prospect of such a claim, we strongly recommend that most employers introduce an internal human rights policy which contains an internal complaint procedure.

2. If a complaint is filed under the Code then we generally recommend that the employer agree to mediation and try to settle the case at mediation. The time and cost associated with a complaint increases exponentially after the mediation.

3. The cost of proceeding to a hearing before the Tribunal can be significant. Imagine the legal costs for a 30 day hearing. The employer must generally incur its own legal costs even if the complaint is dismissed.

If you have questions about your organizations obligations under the Code, or you want to introduce a human rights policy at your workplace, please email us at [email protected] or call us at 1-888-640-1728.

Human Rights Law – Discrimination during the Hiring Process and against Disabled and Female Employees

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By , May 18, 2012 7:35 pm

Human Rights Laws in Ontario

The human rights laws that govern Ontario employers are found within the Human Rights Code. Ontario employers must comply with the Human Rights Code (Code) which prohibits discrimination in employment on 14 grounds including: race, colour, sex, sexual orientation, age, marital status, family status, or disability. (a Prohibited Ground)

In our experience, most human rights issues arise during the hiring process or relate to disabled employees or female employees. In this blog, we will address these three issues.

  1. Discriminating in the hiring process

The Code prohibits discrimination in employment on a Prohibited Ground, and states that an infringement occurs where, among other things, a job application directly or indirectly classifies on a Prohibited Ground.

The Ontario Human Rights Commission (the Commission) has published at least four policies that are relevant to hiring; namely

–       Policy on employment-related medical information

–       Policy on drug and alcohol testing

–       Policy on requiring a driver’s license as a condition of employment

–       Policy on height and weight requirements

  1. Discriminating against disabled employees

The Code prohibits discrimination in employment because of disability unless the person is incapable of performing or fulfilling the essential job duties. A person cannot be found incapable unless accommodating the person would cause the employer undue hardship

The Commission has published a 40-page document entitled “Policy and Guidelines on disability and the duty to accommodate”.

  1. Discriminating against female employees

The Code prohibits discrimination in employment because of sex which includes the right to equal treatment because a woman is (or may become) pregnant, and the right not to be sexually harassed.

The Commission has published a 32-page document entitled “Policy on discrimination because of pregnancy and breastfeeding”, and a 37-page Guideline on developing human rights policies and procedures

Lessons to be Learned

  1. Generally, when making employment decisions, it should not matter to an employer whether an employee is: male or female; heterosexual or homosexual; white or of colour; married or single; Canadian or another nationality; or, disabled or able-bodied. Taking one of these grounds into account when making an employment decision is generally a violation of the Code.
  1. Generally, an employer should not ask whether an employee is disabled or speculate as to whether accommodation measures are needed. The onus is generally on the employee to disclose a disability and to identify any accommodation measures that are required.
  1. Although not required by law, we recommend that most employers introduce a human rights policy which defines sexual harassment and includes a internal complaint process
  1. The Policies and Guidelines published by the Commission do not have the force of law, however, the Human Rights Tribunal of Ontario can and does consider Commission policies at human rights hearings. We believe that certain Commission policies and guidelines interpret the Code too broadly.

If you have any questions about human rights in the workplace, please call us at 1-888-640-1728 or send an email to [email protected]

Human Rights in Ontario: Running Background Checks on Job Applicants – How Far Can An Employer Go?

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By , March 30, 2012 1:17 pm

Human Rights in Ontario – Hiring

The cost of a bad hire can be expensive. Employers can minimize a hiring mistake by checking references, conduct psychological testing and hiring a headhunter. There is a lot of information available about potential employees in cyberspace, including social media platforms like Facebook.

Can an Employer demand access to a Job Applicant’s Facebook account during the hiring process?

This issue arose last week when both the Ontario Human Rights Commission and Facebook weighed in on the issue.

What Says the Ontario Human Rights Commission?

In a March 23rd post on its Facebook account, the Ontario Human Rights Commission said: “Don’t Do It”

“Employers should not ask job applicants for access to information stored on social media or other online sites and that doing so could leave an employer open to a claim of discrimination under the Code”

What says Facebook?

On March 23, 2012 in a posted statement, Facebook also said: “Don’t Do It.”

“As a user, you shouldn’t be forced to share your private information and communications just to get a job. And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.

Facebook noted that this practice could lead to legal liability such as discrimination claims (see above) and damage claims for disclosing private information.

Facebook’s advice to its users: “…you should never have to share your password, let anyone access your account or do anything that might jeopardize the security of your account or violate the privacy of your friends.”

Lessons to be learned

1. A Facebook user is not permitted to share his or her password as a condition of using Facebook.

2. If an employer takes one of the 14 prohibited grounds under the Ontario Human Rights Code, such as the person’s religion, into account when deciding not to hire a job applicant, then there has been a violation of the Code. If an employer does not know a person’s religion then the employer cannot discriminate on this basis. If however the employer finds out about an applicant’s religion by reading the person’s Facebook posts, and then decides not to hire the person, then the applicant can claim it was because of his religion.

If you have any questions about an employer’s obligations to a job applicant, please call us at 1–888-640-1728 or email us at [email protected]

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