Legal Context of HRM

The Black Lives Matter movement and the call for a ‘new’ police

https://mappingpoliceviolence.org/

However, in Canada, the situation is also concerning as evidenced by these graphs:

        

The situation in Canada is different than that of the US, as two groups are overwhelmingly over-represented in deadly encounters with the police: blacks and Indigenous people. In Winnipeg, for example, indigenous people represent an average of 10.6 percent of the population, but account for nearly two thirds (over 60%) of deadly encounters with the police. These statistics are troublesome and elected officials are being asked to find solutions. To do so, governments, police forces, and scientists have started to look at the problem in more depth. One of their conclusions, is that as an organization, the police has not kept up with the evolution of the role of its members. For example, as a result of budget cuts to long-term psychiatric care, improvements in treatment, and the philosophy of integration, an increasing number of people with a mental illness live in the community. As a result, police officers are becoming, by default, the informal ‘first responders’ of our mental health system. A comprehensive database assembled by the CBC shows that 70 percent of the people who died at the hands of police struggled with mental health issues or substance abuse, or a combination of both. On a day-to-day basis, police officers are much more likely to have to calm down a homeless schizophrenic individual screaming in the middle of St Catherine street, than to go on a high speed chase with bank robbers. The need to fill these very different roles puts enormous pressure on police officers: it is important to remember that it is the profession with the highest level of suicide. All of this evidence points to a serious issue and begs the question: How to transform the police force to help it fulfill its new role in society? While the answer to this question is very complex, two HRM processes have been at the center of possible solutions.

Recruitment and Selection

It makes sense that, as the job evolves, the competencies required by police officers also need to evolve. This evolution can be summarized by a shift from physical attributes to psychological ones. For one, emotional intelligence and the capacity to de-escalate situations is key, more so than physical strength. More and more, interviews and selection tests for police officers focus on abilities such as communication, problem-solving and cooperation. Secondly, an emphasis is put on hiring officers who ‘understand’ the population they serve.  In the US, research has shown that white officers dis

patched to Black neighbourhoods fired their guns five times as often as Black officers dispatched for similar calls to the same neighbourhoods (see graph).   The impetus is then on efforts to diversify the force by recruiting officers from every community, and also hiring officers with non-traditional backgrounds (i.e., with psychology, sociology, or social work degrees).  The Montreal Police force has been trying to diversify its ranks, with limited success: approximately 33% of people living in the City of Montreal identify as a visible minority, yet just 7.7 percent of Montreal police officers are visible minorities.

Leaving the gun and uniform at home, officers have the chance to bond and interact with different cultures, community groups and families in their jurisdictions. The objective of the police chief is to cut in half the number of his police officers who respond to calls, and replace them by officers who would be assigned to a specific neighbourhood. These officers would always be the same, in order for them to establish relationships with people. “Instead of always being a police of reaction, I want my officers to be a police of prevention”, says the chief.

The Changing Workforce

Learning Objectives

The focus of human resource management is people. People bring with them feelings, emotions, perceptions, values, prejudices and are often unpredictable. Data, on the other hand is generally neat, quantifiable and often predictable. Thus, HR processes have to adapt and be particularly sensitive to how people and society change and evolve over time.  Workers, like the society in which they live, are subject to constant change. Some of these changes have been slow and steady while others are very sudden (COVID-19). We discuss these changes, and their implications for HRM in this section.

Social Factors: The Constantly Evolving Workers

Diversity

The makeup of the Canadian workforce has changed dramatically over the past 50 years. In the 1950s, more than 70 percent of the workforce was composed of males.^[19] Today’s workforce reflects the broad range of differences in the population—differences in gender, race, ethnicity, age, physical ability, religion, education, and lifestyle. Most companies strive for diverse workforces and HR managers work hard to recruit, hire, develop, and retain employees from different backgrounds. As we will see later in this chapter, these efforts are motivated in part by legal concerns: mismanagement in recruiting, hiring, advancement, disciplining and firing has legal consequences under applicable law. However, reasons for building a diverse workforce go well beyond mere compliance with legal standards. It even goes beyond commitment to ethical standards. Diversity is simply good business! In a competitive market, an organization cannot afford to limit their talent pools arbitrarily. Imagine a hockey team that would only hire players who love Death Metal music (let’s assume that 20% of the population falls into that category). This means that this team would exclude 80% of all available players from the draft. The likelihood of that team ever winning the Stanley Cup with such a restricted pool of players is very, very slim! The point is that organizations cannot afford to exclude workers based on frivolous characteristics. When they do exclude workers, as it is their prerogative, it should be based on characteristics that are proven to be related to performance. In the case of a hockey team: skating, puck handling, vision, etc.

A study by Cedric Herring called Does Diversity Pay? (Herring, 2006) reveals that diversity does in fact pay. The study found that the businesses with greater racial diversity reported higher sales revenues, more customers, larger market shares, and greater relative profits than those with more homogeneous workforces. Other research on the topic by Scott Page, the author of The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies (Page, 2007) ended up with similar results. Page found that people from varied backgrounds are more effective at working together than those who are from similar backgrounds, because they offer different approaches and perspectives in the development of solutions.

Eric Foss, chairperson and CEO of Pepsi Beverages Company opined, “It’s not a fad. It’s not an idea of the month. It’s central and it’s linked very directly to business strategy” (Holstein, 2009). A study by the late Roy Adler of Pepperdine University shows similar results. His 19-year study of 215 Fortune 500 companies shows a strong correlation between female executives and high profitability (Adler). Another study, conducted by Project Equality, found that companies that rated low on equal opportunity earned 7.9 percent profit, while those who rated highest with more equal opportunities resulted in 18.3 percent profit (Lauber, 2011). These numbers show that diversity and multiculturalism are certainly not a fad, but a way of doing business that better serves customers and results in higher profits.

Employees’ Expectations

Another trend that HRM needs to account for is how employees’ values and attitudes are evolving. It is important for HRM to meet employees’ expectations when it comes to work.  We outline three broad areas for which expectations have evolved drastically over the past 20 years.

Rights and ethics

Employees are more demanding than ever when it comes to their rights and the behaviour of their employers. Regarding their rights, employees are more informed than ever. With the rise of social media, a new phenomenon is also taking place in organizations: employee militancy. People are willing to commit their time and energy to an organization, but if that organization fails to meet their expectations in terms of values or ethics, they will no longer remain silent. Employee militancy has moved from advocating for workers right (e.g., better pay, gender equity) to pushing for a better society. A good example of this is how Facebook employees staged a virtual protest, pressing Facebook executives to take a tougher stand on Donald Trump’s inflammatory posts. Some of the issues that have become very important for employees are listed below, with a relevant example demonstrating it:

Sustainability: At Amazon, employees organized an ‘online walk out’ to protest the company’s stance on climate change.

Hey, Jeff Bezos: I work for Amazon – and I’m protesting against your firm’s climate inaction

Since late last year, a group of workers within Amazon have been organizing to push the company to radically reduce its carbon emissions. On 2020-09-20, Amazon workers around the world will walk out of their offices to join the Global Climate Strike.

Privacy:  Humanyze, a Boston-based start-up makes wearable badges equipped with sensors, an accelerometer, microphones and Bluetooth. The devices — just slightly thicker than a standard corporate ID badge — can gather audio data such as tone of voice and volume, an accelerometer to determine whether an employee is sitting or standing, and Bluetooth and infrared sensors to track where employees are and whether they are having face-to-face interactions (see video below). The privacy of workers is increasingly threatened by such technological advances and many employees are taking their opposition to this technology to court. Here is an example of a court decision regarding en employer requiring the implant of microchips in workers to track productivity.

Work life balance

Work-life balance is an important aspect of a healthy work environment, and more and more, employees are insisting on it. Maintaining work-life balance helps reduce stress and helps prevent burnouts in the workplace. To satisfy the assumed desires of employees, many employers overcompensate by adding game rooms and beanbags to spice up the work environment. An entire industry has popped up surrounding making workspaces more “millennial-friendly.”  WeWork, one of the most well-known of this new breed of property managers, is known for designing such work environments.  However, these environments tend to blur the boundaries between work and life, and many employees report that they do not care for these types of perks. One of the answers for employers is to create a flexible work environment, one that satisfies the work-life balance needs of most employees.

HRM and the Law

As described in the previous section, the society in which we live in is constantly evolving. As the values that we share collectively change, so do the rules and regulations that we impose on ourselves. The legislative framework that is adopted by governments is a reflection of our values. For the HR manager, a clear understanding of the legal framework is absolutely necessary.

The Legal Framework

The Canadian Charter of Rights and Freedoms

The Canadian Human Rights Act (CHRA)

The CHRA only applies to federal government departments and agencies, to Crown corporations, and to businesses under federal  jurisdictions such as banks, airlines, and communication companies. Employees of those organizations that fall under the Canadian Human Rights Laws who feel discriminated against can file complaints directly to the Canadian Human Rights Commission. There is a systematic process in place to handle these complaints. After a complaint is filed, a mediation process is attempted to try to resolve the issue between the parties. If the mediation fails, the dossier is handed over to the Human Rights Commissioner who can decide to:

Quebec Human Rights Laws

Pay Equity

Over the years, the Canadian and Provincial governments have enacted various forms of legislation and statutory mechanisms to specifically address the issue of gender wage discrimination (see graph).

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 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 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? Or 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 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. 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 cuts 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. Here is an example of a bank employee who won a court decision because he was denied a promotion because he was not gay. While it is clearly illegal to use these categories explicitly in making organizational decisions, you’ll be surprised how many ‘waitress wanted’ job postings you can find. Here are some examples of direct discrimination in hiring based on age, religion, and national origin/ethnicity:

  

Indirect (systemic) Discrimination

Indirect discrimination occurs 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:

Consequence: This rule would negatively affect employees who are practising Jews, since Saturday is a religious day in Judaism.

Consequence: This rule would affect Blacks more than other racial groups because they are more likely to have this hairstyle.

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. Here is his story. 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.

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. For example, requiring Catholic school teachers to be Catholic is deemed

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) cost 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

Company-Specific Code of Ethics

In addition to the many legal obligations that organizations are subject to, many organizations choose to go above and beyond what they are required to do and design codes of ethics and policies for ethical decision making specific to their organization. Some organizations even hire ethics officers to specifically focus on this area of the business. Today, many organizations have an ethics officer, who reports to 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’s 37 pages of code of conduct can be found here.

¹Zappos.com, accessed August 25, 2011, http://about.zappos.com/our-unique-culture/zappos-core-values/build-open-and-honest-relationships-communication.

²National Committee on Pay Equity, accessed August 25, 2011, http://www.iwpr.org/initiatives/pay-equity-and-discrimination/#publications.

Managing Employment Equity in Organizations

HR managers pay a central role in making sure that organizations meet different legal requirements. The actions of HR managers can often be reactive, as when an incident occurs that requires immediate action. However, effective HRM practices take a proactive approach to employment equity.

The Implementation of Employment Equity in Organizations

Senior Management Commitment

Data Collection and Analysis

Employment Systems Review

Establishment of a Work Plan

Implementation

Evaluation, Monitoring, and Revision