3.4 Discrimination in Organizations
In the previous section we covered the general legislative framework overseeing HRM. In each chapter of this book, we will come back to some of these legal principles, as they apply to specific HRM practices. In this section, we go beyond the general legal principles of discrimination and delve deeper in the concept.
Discrimination and the Law
As stated earlier, discrimination laws have evolved over the years; they attempt to be in step with the values of the society that they oversee. In essence, these laws do not prohibit discrimination at large, they only prohibit discrimination along certain characteristics. The Canadian Human Rights Commission (2021) defines discrimination as “an action or a decision that treats a person or a group badly for reasons such as their race, age or disability.” An interesting manner to view discrimination laws is to flip the concept around and consider all of the characteristics or dimensions that one can use to distinguish between people.
Think!
Think about it: Individual workers differ in thousands of ways: height, eye colour, personality, favourite ice cream flavour, and ability to take care for plants (i.e., green thumb). Thus, the law specifies that one can make decisions based on all of these differences, except for a handful of them: those that are deemed unacceptable by society. In other words, you can ‘discriminate’ based on personality or favourite ice cream flavour but you cannot do so based on gender or race. It sounds straightforward enough but it is not.
- Think about discriminating based on height, weight, or postal code. In the context of the law, these are not ‘protected’ categories, so can one assume that they are OK to use as basis of “discrimination”?
The next section answers these questions in more detail. This is important because HR managers are responsible for making decisions about employees (e.g., hiring, evaluating, promoting, terminating, etc.) and thus, they require a sophisticated understanding of how discrimination can occur in the workplace. We explain the two basic mechanisms by which discrimination can manifest itself: direct and indirect (systemic) and additional nuances regarding discrimination.
Direct Discrimination
Direct discrimination or intentional discrimination occurs when a decision is made based on one of the categories protected by the legislation. This form of discrimination is blatant and clearly illegal. An employer cannot discriminate hiring a person based on any of the prohibited grounds. It is often hard to prove. An example might be a person who uses a wheelchair and is told they were not qualified for the job. This is a difficult situation to prove. Employers are also not allowed to treat people unequal. This applies to individuals and groups. An example is a woman who is pregnant and applies for a promotion. Her boss suggests they are looking for someone who will be more dedicated to the job.
A truck company cannot have hiring ads stating ‘male drivers wanted’ or a car dealership cannot favour Catholics in the promotion to managers. This is pretty obvious. It is important to note that this applies both ways and the law is blind as to how the categories are used: it is illegal to make decisions based on them even if the decision is in favour of the ‘minority’ group. See an example in the article: court dies with bank staffer who says he was denied promotion because he’s not gay. While it is clearly illegal to use these categories explicitly in making organizational decisions, you will be surprised how many ‘waitress wanted’ job postings you can find (versus ‘waiter/waitress’).
Indirect (Systemic) Discrimination
Indirect discrimination or unintentional discrimination is a rule that singles out a group of people that results in unequal treatment. It is often within organization’s policies. These rules have a negative impact on the group and are not job related. An example is asking women to only wear skirts and dresses to work. It is when a provision, criterion, or practice has the effect of disproportionally impacting individuals in one of the above-mentioned protected categories.
The important distinction here is that a practice or criterion that appears neutral may have different impact on people (disparate impact). In other words, indirect discrimination is when you treat someone the same as everyone else, but your treatment of the person has a negative effect on them because of their protected characteristic. This form of discrimination is much more subtle than direct discrimination; it is often not even purposeful. The best way to understand how indirect discrimination occurs is though examples:
Discrimination Examples
Example 1: A shop manager introduces a rule that all employees must work at least two Saturdays each month in the shop.
Consequence: This rule would negatively affect employees who are practicing Jews, since Saturday is a religious day in Judaism.
Example 2: A truck company banning cornrows or dreadlocks for its drivers.
Consequence: This rule would affect Blacks more than other racial groups because they are more likely to have this hairstyle.
Example 3: A factory that includes a minimum height requirement for its workers.
Consequence: This rule would have an adverse impact on women, given that women are, on average, shorter than men.
The practices in these three examples have the appearance of being neutral—note that they do not specify ‘no Jews, no Blacks, no women’—however their consequences are harmful, they disproportionately affect individuals among protected categories. This is how indirect discrimination works…indirectly. At this point, you may ask yourself: how can businesses function if they cannot use some of the ‘illegal’ selection criteria listed above? Are height requirements and Saturday shifts really that unreasonable? How do we, as a society, balance the rights of individuals with those of managers trying to run a business efficiently?
There are some subtleties in how the legislation operates in order to balance the rights of individuals and those of organizations and, in some cases, workplace discrimination is not unlawful. If organizations can objectively justify the use of a criteria by showing business necessity, job relatedness or by claiming bona fide occupational qualification (BFOQ) than the criteria can be used, even if it leads to discrimination. We explain how these concepts work in the next section.
The Concept of Job Relatedness
The concept of job relatedness refers to the requirement that employment decisions be based on the requirements of a position. The criteria used in hiring, evaluating, promoting, and rewarding people must be directly tied to the jobs performed. For example, a policy that all warehouse workers be at least 175 cm tall would be legal if the employer can prove that physical height is important to perform the job, even if this requirement would lead to lower proportion of women being hired than men (indirect discrimination).
While making a demonstration of job relatedness may sound straightforward, it is often quite complicated and subjective. A legal case that occurred in 1988 demonstrated this. A young Sikh, Baltej Singh Dillon wanted to become a RCMP officer. Though he met all the entrance requirements, there was one significant problem: the dress code forbids beards and wearing a turban in place of the uniform hat. Basically, the outcome of this case rests on the fact that the rule prohibiting beards and turbans is discriminatory but cannot be linked to performance as a RCMP officer. The rule would have been acceptable if the RCMP would have been able to prove job relatedness, which they were not (Canada: The story of us, 2017).
Bona Fide Occupational Qualification
A Bona fide occupational qualification (BFOQ) is a justifiable reason for direct discrimination. The term ‘bona fide’ is a Latin word that means ‘in good faith’ or ‘genuine’. This clause is unique and interesting because it allows organizations to overtly use the prohibited categories to make decisions (Engaged HR, 2018).
Employers want to avoid discrimination written in their policies and practices. There is a discrimination that is permitted by employers. BFOR is a standard that allows employers, if there is a legitimate reason, to discriminate if the job is connected to the employees ability to perform the job. An example would be a blind person cannot drive a taxi for a transportation business. This is an obvious example. Another example might be a television commercial for women’s hygiene products. This could be justified in hiring only women for the acting parts. HR Managers want to avoid discrimination in the workplace.
However, there are grey areas. The three criteria assists HR Managers to make decisions related to legitimate BFOR. There are three criteria established by the Supreme Court of Canada to decide whether a standard or policy is considered BFOR and not considered discrimination.
- Connected to performance of the job: The standard has been established for the safety and a person’s ability to perform the job i.e.. a construction worker needs to be able to lift 40 pounds
- Honesty and good faith: The employer set the standard with honesty and good faith as a legitimate reason to complete the work i.e.. an employer terminates an employee and abuses their power within the employment contract.
- Accommodation is not reasonable: The employer needs to establish the work cannot be completed without undue hardship i.e.. extraordinary financial burden, or health and safety.
*Undue hardship: When considering many factors , an action that requires significant difficulty or expense for accommodation.
For example, requiring Catholic school teachers to be Catholic is deemed acceptable (discrimination based on religion). Also, airlines are allowed to have mandatory retirement age for pilots, for safety reason (age discrimination) or a manufacturer of men’s clothing may lawfully advertise for male models (gender discrimination). Examples of legitimate BFOQ’s are relatively rare and relate to unique situations, they also raise many questions as to what are ‘genuine’ aspects of the job. Think of whether male guards should be allowed to work in female prisons or whether a French restaurant can insist in hiring only French chefs! In these situations, is gender and nationality a BFOQ? Questions such as these often end up debated in court because they are not black and white.
Think!
Can you think of any examples why an employer could use BFOR where accommodation is not reasonable? Explain.
Duty to Accommodate
The courts place an additional responsibility on organizations when it comes to discrimination: the duty to accommodate. Employers and service providers have an obligation to adjust rules, policies or practices to enable individuals to fully participate. The duty to accommodate means that sometimes it is necessary to treat someone differently in order to prevent or reduce discrimination, this is especially true when it comes to physical disabilities.
For example, if an employee has a speech impairment, it is not absolutely necessary that he/she answers the phone. An employer can eliminate this as a duty for the individual, and instead he/she can do filing for her coworkers. Another example: an employee may have to be absent for a day or two during the week to receive dialysis. An employer can accommodate him by agreeing to a weekly 3-day work contract, or the employee could agree to recuperate the hours on weekends or work from home. In most cases, the duty to accommodate may require that the employer changes or adjusts the way things usually are in order to attend the needs of individuals with disabilities.
At this point, it is important to note that there are limits to the duty to accommodate for employers. Basically, the law stipulates that an employer has to accommodate employees up to the point of undue hardship. Undue hardship is the point where the accommodation either (a) costs too much, or (b) creates health or safety risks for employees. Thus, undue hardship is a relative concept that varies based on the context.
For example, a large organization like Saputo has the financial means to accommodate an employee who is hearing impaired by investing in assistive listening devices such as a microphone, an amplifier, and an earpiece or headphone jack. This would be more difficult to do for your local dépanneur. Another example would be of an employee who develops macular degeneration (a vision impairment). The employee could easily be accommodated if he’s an office worker but such accommodation would not be required for a truck driver because of obvious security implications.
Sexual and Psychological Harassment
The law set out that all employees have a right to a workplace environment free from psychological harassment. The employer has to take reasonable action to prevent psychological harassment in the workplace and to put a stop to such behaviour whenever they become aware of it. The law places an obligation on employers to adopt a psychological harassment prevention and complaint processing policy, and to make such policy available to their employees. It is important to note that the law specifies that “psychological harassment includes such behaviour in the form of such verbal comments, actions or gestures of a sexual nature.” (CNESST, 2021, para. 1).
The definition of psychological or sexual harassment is specific and requires the presence of all of these elements:
Vexatious behaviour: This behaviour is humiliating, offensive or abusive for the person on the receiving end. It injures the person’s self-esteem and causes him anguish. It exceeds what a reasonable person considers appropriate within the context of his work.
Repetitive in nature: Considered on its own, a verbal comment, a gesture or a behaviour may seem innocent but the accumulation of these behaviours is considered harassment. Note, however, that a pattern is not necessary to establish harassment: an isolated act of a more serious nature is sufficient.
Verbal comments, gestures or behaviours that are hostile or unwanted: The comments, gestures or behaviours in question must be considered hostile or unwanted. If they are sexual in nature, they could be considered harassment even if the victim did not clearly express his or her refusal.
Affect the person’s dignity or integrity: Psychological or sexual harassment has a negative effect on the person. The victim may feel put down, belittled, denigrated at both the personal and professional levels. The physical health of the harassed person may also suffer.
Harmful (toxic) work environment: Psychological or sexual harassment makes the work environment harmful for the victim. The harassed person may, for example, be isolated from his colleagues due to the hostile verbal comments, gestures or behaviours towards him or concerning him.
Today, all employers must comply with:
- Policies: create and maintain anti-harassment policies or revise existing ones to ensure that they specifically address not only psychological harassment in the workplace, but sexual harassment as well;
- Complaints: create and maintain clear and consistent internal processes to address harassment complaints are set out therein, and implement such processes if they do not already exist;
- Implement: Implement their new or revised anti-harassment policies as soon as possible; and
- Communicate: Make their new or revised policies available to all of their employees.
Once again, the laws that our governments choose to implement are a reflection of the evolution of society and recently, there has been a significant change in our attitudes towards harassment, especially when it comes to sexual harassment. The #metoo movement has been the source of a massive wave of denunciation where people publicize their allegations of sex crimes committed by powerful and prominent men. This societal movement has had significant implications for organizations that have not adjusted their practices and culture accordingly. Recently, Ubisoft, a gaming company with a large studio in Montreal, was rocked by a sexual harassment scandal that led to the firing of the head of the Montreal studio, their top producers, and their VP HR. Several employees complained about a range of aggressions that included sexual, emotional and professional abuse from top managers.
The male-dominated culture of the gaming industry, at Ubisoft especially, and its excesses is described in the article Ubisoft’s toxic culture problems allegedly span more than a decade of abuse. The scandals can be ruinous for organizations and it is the role of HR managers to instill processes that prevent them from happening. The evolution of new social networking platforms has given employees a public platform for exposing injustices – and the lack of appropriate policies.
Company-Specific Code of Ethics
In addition to the federal and provincial legal obligations that organizations are subject to, many organizations choose to go above and beyond what they are required to do by designing codes of ethics and policies specific to their organization. A code of ethics is a policy that guides the business and its employees to act with integrity and honesty in all its daily operations and to create and support actions that promote some benefit to society as a whole. Some organizations even hire ethics officers to specifically focus on this area of the business. Today, many organizations have an ethics officer, who reports either directly to the CEO or the HR executive. A good example of a company that takes ethics seriously is CAE, a Montreal-based company that manufactures simulation technologies, modelling technologies and training services to airlines, aircraft manufacturers, and healthcare specialists. CAE has adopted a code of ethics that holds employees “accountable to the highest standards of integrity, honesty and ethics. It also means having the wisdom and courage to do the right thing”. (CAE, n.d., p. 4)
“Discrimination in Organizations” from Human Resources Management – 2nd Ontario Edition by Elizabeth Cameron is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
