Canadian Law of Work Forum (CLWF)
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
Canadian Law of Work Forum (CLWF)
Law of Work Archive

Another Human Rights Violater: Cara

by David Doorey September 21, 2009
written by David Doorey September 21, 2009

Go to fullsize image We play a game in my Employment Law course where we look at job application forms that students bring in and search for unlawful questions.  In the past, we have considered Starbucks and Coach (Coach in particular was outrageous).   In continuing on with this great tradition, one of my students handed me an application she picked up from Cara, that giant corporation that owns Swiss Chalet, Milestones, Montanas, Kelsey’s, Harveys, and others.
One question on their standard application form I hadn’t seen before:
“Do you have any relatives who are employed by Cara?”
Is that lawful?  Can an employer grant preference to relatives of existing employees, or alternatively, exclude them from jobs because of their relatives?  Part of the answer lies in Section 24(1)(d) of the Ontario Human Rights Code. That section provides that it is not a violation of the Code for an employer to give preference or refuse to employ a person who is a ‘spouse, parent, or child’ of the employer or an existing employee.  This permits a form of limited nepotism.  But note that it covers only a small subset of relatives (spouse, parent, child).  Can an employer refuse to employ someone because they already employ that person’s cousin or aunt or grand-parent, for example?  Clearly those people are not caught by Section 24(1)(d).
Therefore, do you think it would be a violation of Section 5 of the Code, which bans discrimination in employment based on a variety of grounds, including ‘family status’, to weed people out of the hiring process on the basis of their relationship to existing employees (other than spouse, child, or parent)?   The answer is probably ‘no’, because ‘family status’ is very narrowly defined as ‘the status of being in a parent and child relationship’ (see section 10).  Can you identify any other way that the Code would ban an employer from basing its hiring decisions on the presence of existing employees who are relatives of the job applicant?  What about the fact that your employer may know the ethnic origin or religion of your relatives who are already employees?  Would that effect whether an employer can ask questions about ‘relatives’?
Are you able to lift 50 pounds and understand that there may be continuous standing/movement on your feet in this role?   Yes  or No
Uh-Oh.    This is almost certainly  a violation of Section 23 of the Code, isn’t it? That section says (in essence) that an employer can not ask questions in the recruitment process that indicate qualifications in ways that indirect discriminate. In other words, employers can’t ask people if they can lift 50 pounds, because it would be illegal to refuse employment to a person who can’t simply on that basis.  Rather, even if lifting 50 pounds or standing up for long periods of time is a job requirement, the employer has an obligation to accommodate an employee ‘to the point of undue hardship’ so as to enable that person to do the job.  If employers can just refuse to hire people who can’t lift 50 pounds or stand all day, they could easily avoid the duty to accommodate, by hiring only people who meet their ideal of the perfect employee.
You may be required to wear a uniform or follow a dress code.  Are you willing?
Hmmm. Dress codes can easily run afoul of human rights legislation.  Think about a rule that prohibits head gear, or that requires women wear short skirts, for example.  Both of those dress codes have been ruled unlawful by Canadian human rights tribunals.  So can an employer ask applicants whether they are prepared to wear a dress code or abide by personal appearance rules that, for example, might violate the applicant’s religious freedom?  I think this question is highly dubious from a legal perspective, especially when the uniform is well-known and the applicant knows that it will clash with some protected right.  What do you think human rights experts?
Keep the application forms coming.  Maybe if we do enough of these, the HR Departments might actually start considering human rights issues when they draft their application forms.

0 comment
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

Leave a Comment Cancel Reply

Save my name, email, and website in this browser for the next time I comment.

previous post
Everybody Sigh… York Faculty Ratify New Collective Agreement
next post
Collective Bargaining in the Auto Sector: No Easy Answers

You may also like

A Cross Country Update on the Card-Check versus...

October 3, 2018

A Successful Strike Vote is All That Stands...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Putin Invites Trump to Moscow for Second Meeting...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 219 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

CLWFFollow

CLWF
Retweet on TwitterCLWF Retweeted
RSandillRicha Sandill@RSandill·
24 Feb

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364627677785821185Retweet on Twitter 13646276777858211851Like on Twitter 13646276777858211853Twitter 1364627677785821185
Retweet on TwitterCLWF Retweeted
TheLawofWorkDavid J. Doorey@TheLawofWork·
24 Feb

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
24 Feb

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.