Topic: Discrimination and harassment

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DOL issues sex discrimination final rule

On June 14, 2016, the United States Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) issued a Final Rule to revise its sex discrimination policies, updating its guidelines to provide additional guidance on what constitutes discrimination based on sex. The updated guidelines define “sex” to include gender identity, transgender status, pregnancy, and sex stereotyping.  OFCCP also clarified some aspects of the old rule, including which parts contractors are subject to, whether a contractor’s good-faith efforts to expand employment opportunities for women could result in a violation of the Rule, and whether contractors may seek exemptions under the … Continue Reading

What are the latest developments on whistleblowing in the workplace?

French employment law does not yet provide for a comprehensive and consistent set of rules for the purpose of protecting whistleblowers. Instead, French employment law tackles issues arising out of whistleblowing situations through a relatively meager set of legislative provisions.

Current legislation

Under currently applicable legislation, no employee can be disciplined, dismissed or discriminated against for having reported, in good faith, various sets of facts such as moral and sexual harassment, discrimination, corruption, facts representing a serious risk to public health or environment, facts constituting a crime or an offence, etc.

Aside from such specific regulations, whistleblowers may also benefit … Continue Reading

Testing the limits of reasonableness: Alberta Court quashes arbitration decision on random drug testing.

In the recent decision of Suncor Energy Inc v Unifor Local 707A, 2016 ABQB 269 [Suncor] the Court of Queen’s Bench found that an arbitration board’s decision was unreasonable and sent it back for rehearing by a fresh panel.

The decision stems from the implementation of a random drug and alcohol testing policy in 2012. Following implementation, the Union grieved and the issue went to arbitration. At arbitration, the Majority of the Board concluded that the safety benefit of the policy was outweighed by the harm to employee privacy rights and rejected the policy. The Company applied to … Continue Reading

Minnesota addresses architectural barriers to public places: 2016 amendments to its Human Rights Act

Introduction

Minnesota businesses may soon see differences in disability access claims.

wheelchair

On May 22, 2016, Minnesota’s Governor Mark Dayton signed into law a new amendment to the Minnesota Human Rights Act (“MHRA”). The amendment governs what must occur before attorneys can bring suit under the MHRA challenging architectural barriers that limit accessibility to public spaces. The new law is set forth in Minn. Stat. § 363A.331 (“Section 331”) and is entitled “Actions Involving Architectural Barriers that Limit Accessibility.” Human Rights Act, Ch. 363A, § 28, § 331, 159 H.F.No. 2955 (2016) (amending § 28 and creating new § 331, the … Continue Reading

“What are the latest developments on whistleblowing in the workplace in Germany?”

Apart from the well-known Wiki-leaks, recent prominent cases of whistleblowing such as Lux-leaks, the Panama Papers or the case of the German geriatric nurse Brigitte Heinisch, who was dismissed after revealing the ill-treatment of elderly people in a Berlin retirement home, continue to highlight the continued relevance of the topic “whistleblowing”. While this has resulted in an increased public awareness and consequent expectation of global corporate accountability, the subject remains a complex matter of opposing interests: on the one hand, the public interest in ensuring that companies, authorities and organisations comply with the law, and on the other hand, the … Continue Reading

Employees must participate in the accommodation process

It’s never easy to talk about mental illness – particularly not with your employer. However, the British Columbia Human Rights Tribunal recently held that even if it’s uncomfortable, an employee may have the obligation to discuss their condition with the employer in order to allow the employer to come up with a proper accommodation.

Last April, in K.B v S.S, 2016 BCHRT 61, the British-Columbia Human Rights Tribunal found that an employee failed in his duty to work with his employer to come to a reasonable accommodation. Finding an accommodation requires the cooperation of both parties and without knowledge … Continue Reading

What measures are in place (or being proposed) to address gender pay inequality in the workplace in France ?

Gender pay inequality remains a topical issue in France despite the introduction of numerous pieces of legislation intended to suppress the persistent pay gap in average remuneration between women and men. Although French employment law theoretically prohibits any discrimination based on gender and requires that employers ensure equal remuneration between women and men occupying a similar employment or an employment of similar value, there was still a global gap of approximately 19% in 2013 (10% when taking into account equivalent positions and conditions).

One of the main tools of gender pay equality policies in the workplace has been and remains … Continue Reading

Fair P(l)ay in Germany? – What measures are in place (or proposed) to address gender pay inequality in the workplace

This post was also contributed by Ebru Tirel, Trainee, Norton Rose Fulbright LLP (Munich).

In Germany, “Equal Pay Day” is widely observed. It marks the day from which women are deemed to start to earn wages in that calendar year, where men have started to earn wages since January 1st. This year, Equal Pay Day was on 19 March.

According to a report of the German Federal Statistical Office DESTATIS dated 16 March 2016 regarding the gender pay gap in 2015, women earn 21 percent less than men. This inequality is due to various factors: Women often choose professions in … Continue Reading

OHRC Takes a Stand on Gendered Dress Codes

The Human Rights Commission of Ontario (“HRCO”) very recently clarified its stance on gender-specific dress codes by issuing a policy position on the subject.  The policy takes aim at sexualized dress codes found mainly in the restaurant and bar industries.  Of particular concern to the HRTO were any formal or informal policies requiring women to wear high heels, tight dresses, low-cut tops and short skirts.

While not legally binding, the policy states that employers must “make sure that any uniform or dress code policy does not undermine employees’ dignity and right to fully take place in the workplace … Continue Reading

Vicarious liability for sexual harassment

This article was written by Steven Adams, an Associate and Hermann Nieuwoudt, a Director at Norton Rose Fulbright South Africa

The Eastern Cape High Court has developed the common law and expanded the circumstances in which an employer may be held vicariously liable for its employee’s sexual harassment of another employee.

Phil-Ann Erasmus was employed by the Ikweze Municipality as an Archives Clerk. Her immediate superior was Mr Jack.Erasmus was based at the Municipalities Jansenville office and Jack at its Klipplaat office. In exercising his duties Jack often visited the Jansenville office and the two often worked together after hours.… Continue Reading

EEOC continues its efforts to incorporate sexual orientation and gender identity into Title VII protections

On March 1, 2016, the EEOC filed two cases with one clear goal: to expand the meaning of “sex” under Title VII. In EEOC v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa.),  the agency alleges that the defendant harassed an openly gay male employee because of his sexual orientation, thereby committing unlawful sex discrimination under Title VII.  The Complaint suggests the employee’s manager repeatedly directed homophobic slurs at the employee, conduct the agency characterizes as “motivated by [the employee’s] sex (male), in that sexual orientation discrimination necessarily entails treating an employee less favorably because of his … Continue Reading

The pay differential war

This article was written by Jose Jorge, a Director and Steven Adams, an Associate at Norton Rose Fulbright South Africa

On 19 April 2016 the Labour Court (Court) handed down judgment in one of the first appeals to be decided in terms of the newly enacted section 10(8) of the Employment Equity Act, 1998 (EEA). Section 10(8) allows an aggrieved party to appeal to the Labour Court against an award of The Commission for Conciliation, Mediation and Arbitration (CCMA) in an unfair discrimination dispute.

In terms of a collective agreement between Pioneer Foods (Pty) … Continue Reading

Parliament takes on pay equity in the workplace

On Wednesday, February 3, 2016, the House of Commons adopted a motion forming a new Special Committee on Pay Equity (Comité spécial sur l’équité salariale in French) [the “Committee”]. The motion was passed with 224 votes in favour and 91 against.

The Committee’s mandate includes, but is not limited to, taking legislative action to address wage disparities between men and women in the Canadian work force. The Committee also will consider current provincial legislative regimes on pay equity, namely in Ontario and Québec, and may seek to implement the 2004 Pay Equity Task Force Report which urges … Continue Reading

Record Award: Ontario Human Rights Tribunal Awards $150,000 in Compensation

In an unprecedented decision from last May (and worth discussing again), the Ontario Human Rights Tribunal (the Tribunal) awarded a migrant worker $150,000 in compensation for injury to her dignity, feelings, and self-respect under the Ontario Human Rights Code (the Code) as a result of sexual harassment and reprisal at the hands of her employer’s principal and owner, Presteve Foods (the Employer).

The migrant worker came to Ontario along with her sister to work under the Federal government’s temporary foreign worker program for low-skill occupations. During their employment, the employer subjected the workers to unwanted sexual solicitations … Continue Reading

Covert Video Surveillance Overturns Wrongful Dismissal Case

In a preliminary award, an Ontario arbitrator allowed covert video surveillance footage to be used as evidence in a wrongful dismissal grievance. The complainant, Mr. Donnelly, was one of three elementary school custodians dismissed for allegedly smoking marijuana, adjacent to school grounds during working hours.

The wrongful dismissal case between Ottawa-Carleton District School Board and Ontario Secondary School Teachers’ Federation, District 25 (Donnelly Grievance) was mediated by Arbitrator Knopf.

The three dismissed custodians were reported by a fellow employee who maintained alleged marijuana use and trafficking, while at work. Following the report, the Board’s Director of Human Resources sought approval … Continue Reading

Should employers go to jail for genetic discrimination?

Bill S-201, An Act to prohibit and prevent genetic discrimination, is currently being reviewed and debated by the Senate Standing Committee on Human Rights. If passed, this Bill would impose quasi-criminal sanctions for genetic discrimination in the workplace, meaning that employers could face significant penalties in the future, including imprisonment. While the principle behind this Bill is commendable, two problematic issues should be considered.

First, the Bill provides for a multiplicity of proceedings by which an employee can seek both quasi-criminal recourse under the Genetic Non-Discrimination Act, and civil recourse under the current Canada Labour Code or … Continue Reading

Scents and Sensibility in Canadian Workplaces

When is an employee discriminated against because of odours in the workplace?  In the recent decision of Gillis and Nova Scotia (Public Service Commission), Re, (http://canlii.ca/t/gncqd), the Nova Scotia Labour Board considered this issue.  An employee advised management that scents worn by co-workers caused him dizziness, nausea, migraines, loss of appetite, insomnia, anxiety and depression.  The employee agreed to create scent-sensitivity signage and produce emails and webcasts for employees about the importance of scent-free workspaces.

The employee exercised his right to refuse unsafe work pursuant to s.43(1) of the Occupational Health and Safety Act because another employee … Continue Reading

What protection do employees have against racial discrimination in France?

The matter of racial discrimination is a regular source of concern in France, and the issue of protection against such discrimination is as important as ever.

In this respect, employee protection is principally ensured through the general principle of non-discrimination in the workplace, which prohibits any employer from treating an employee differently on the basis of certain illicit grounds, including employees’ origin, their actual or assumed membership of an ethnic group, a nation or a race and their name. Discrimination on the basis of an employee’s colour or nationality would clearly fall within such general prohibition. It would also be … Continue Reading

What protection do employees have against race discrimination?

According to Article 13 of the Colombian Political Constitution, each individual is born free and equal before the law. The same protection and treatment from the authorities is guaranteed. Every individual is entitled to the same rights, freedoms and opportunities without any discrimination on grounds of race among others.

Article 10 of the Colombian Labor Code, states that all employees are equal. From a labor perspective the Constitutionality Block, understood as -those rules and principles that without formally appearing in the National Constitution are used as a mechanism of control of the constitutional provisions- is essential when analyzing discriminatory conducts.… Continue Reading

What protection do employees have against race discrimination in Germany?

Due to the large number of refugees now living in Germany, protection against race discrimination has recently become an issue of greater importance.

Under the German Anti-Discrimination-Act, which is derived from European directives, all employees in Germany, including apprentices and job applicants, are legally protected against discrimination on grounds of race or ethnic origin. In particular, it is unlawful to discriminate during the recruitment or promotion process. It is also unlawful to discriminate on grounds of race or ethnic origin in the giving of instructions during the daily working process or in the payment of remuneration.

The aim of the … Continue Reading

Collective Agreements vs. Charter Rights in Nova Scotia

When a collective agreement is negotiated, compromises are often made.  Benefits are given to some but not all employees. However, this can risk being viewed as discriminatory – depending on who receives the new benefits and who does not. In a recent case before the Nova Scotia Court of Appeal, IAFF, Local 268 v Adekayode, it was examined whether or not it was discriminatory for a collective agreement to top up federal EI benefits for adoptive parents’ parental leave but not for birth parents.

In Adekayode, the Human Rights Board had initially found that a policy of topping … Continue Reading

What Protection do Employees have Against Race Discrimination?

Discrimination in Quebec’s labour relations is mainly covered by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. Both protect an employee from being wronged by his employer based on race or ethnical differences. They offer employees a broad scope of protection namely with regards to hiring, dismissal, apprenticeship and conditions of employment.

As the Canadian Human Rights Tribunal recently reminded, “race discrimination” is subtle and can take various forms. In the light of the foregoing:

“(…) it should be kept in mind that discrimination is not usually practiced overtly or even

Continue Reading

What protection do employees have against race discrimination in the UK?

The current law on race discrimination is set out in the Equality Act 2010 (the Act).

What is the definition of race?

Race is defined in the Act as a term which includes colour, nationality, and ethnic or national origins. It is important to note that while these factors are included in the definition of race, it is a non-exhaustive definition.

Race discrimination in the workplace

The law prohibiting race discrimination in the workplace applies to all stages of the employment relationship including recruitment, terms and conditions of employment, promotions, transfers, training and dismissal – and there are a … Continue Reading

Highest court to revisit birth control coverage under ACA

The 2010 Affordable Care Act (ACA), the United States’ controversial health care coverage act, requires group health plans and insurers to cover preventive care and screenings for women. Under the related regulations, this coverage includes government-approved contraceptive methods, but the group health plan of a religious employer may be exempt from providing such coverage or granted an accommodation to avoid paying for such coverage.  A for-profit employer with religious objections tested this contraceptive mandate in Burwell v. Hobby Lobby, and in 2014, the U.S. Supreme Court held that the mandate substantially burdened the exercise of the employer’s religion and … Continue Reading

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