When 'At Will' Becomes 'We Won't'
As Homer Simpson once sadly put it best, “I’m a white male, ages 18 to 49, everyone listens to me.”
While said in jest, the quote belies a sad note of truth. Despite tremendous advances in human rights for all individuals, it is naive and ill-founded to deny the systemic barriers that women, persons of colour, visible minorities and LGBT individuals have historically faced, and continue to face in the workplace.
Yet is another thing entirely when those systemic barriers are not only enacted, but buoyed by the very government elected to protect these same individuals.
In recent months, the Trump administration has taken frightening new measures to undo previously-enacted protections for society’s most vulnerable employees. While Canadian employment law is far from perfect, there is a stark contrast between our two systems that is well worth noting in times such as these.
It is crucial to note that U.S. employment law is very different, and I am far from an expert on the topic. The United States has, since its inception, been the land of opportunity for countless people seeking a better life, and will continue to be so for years to come. That is part of the reason why these changes are so deeply upsetting to so many, as they run contrary to the very foundation of the country.
To frame the conversation properly, the majority of U.S. states are considered ‘at-will’ states, which means that employment is offered solely at the will of the employer, and can be revoked at any time. The majority of wrongful termination lawsuits in the United States involve allegations of discrimination, as that is often the only defence an individual has when alleging that they were treated unfairly.
This, however, makes the revocation of any federally-enacted employee protections that much more concerning. Earlier this month, US Attorney General Jeff Sessions announced in a memorandum that the government was reinterpreting the 1964 Civil Rights Act so that it only covers discrimination between “men and women,” effectively removing protections that had been read in under the previous administration for transgender employees.
LGBT populations are not the only group to feel the weight of Trump’s might. Most recently, the Department of Health and Human Services has declared that employers may be able to withhold employees’ birth control coverage under the Affordable Care Act if the employer has a moral or religious objection to contraception. While the administration claims that at most 120,000 women will be impacted, it is incomprehensible to imagine how that small a figure may be accurate.
The move is just the latest in a series of federal policy reversals. In September, lawyers for the Trump administration argued in Court that the Civil Rights Act does not apply to protections for gay and lesbian employees in the workplace, as LGBT issues were not on the drafters’ radar over 50 years ago. While LGBT workplace protections in the US vary state by state, the Federal position as a guidepost is one that should not go unnoticed.
There are other, more technical changes occurring under Trump’s administration as well. Significant technical changes to US labour laws are making changes to overtime provisions, unionized workplace relationships, and the involvement of legal counsel in a workplace. This is, of course, not even through a full first year of the Trump administration. With potentially 7 more years of Trump's administration to follow, it is truly difficult to fathom what changes are still to come.
The basic human rights violations may be the most punishing. While the United States operates on a structurally different human rights platform, the rolling back of previous workplace protections signals a sea change in the government’s priorities, and grants employers freedoms to discriminate not only against their potential client base, but also against their own longstanding employees.
North of the border, human rights law is predicated on not treating an individual differently simply based on who they are. Employees in Ontario, whether they are provincially or federally regulated (depending on their job duties and industry of work), are protected from discrimination against a wide list of grounds including their age, race, sex, religion, gender identity, gender expression, and disability just to name a few. While this list expands as time and social consciousness evolve, this evolution is what allows more and more Canadians to feel safe and secure in their employment. They may be terminated for other reasons, but it will not be because of who they are as a person.
Moreover, not only are employees’ human rights protected at law, but employers have a legal duty to accommodate employees under these protected grounds to a point of ‘unreasonable hardship.’ While previous posts deal with this in greater detail, in short it means accommodating employees who require some adaptation to their work schedule, environment etc., even if it becomes a nuisance for the employer. Employers have been hit with severe financial penalties for failing to make the most basic of accommodations (see Setting Things Right)
Of course Canada is not perfect, and neither are Canadian employers. Employment lawyers regularly assist employees who have been mistreated at the hands of their employers in ways that simply should not have happened. However, the legal protections these employees are entitled to mean that a mistreated employee does not have to suffer in silence. These laws are in place to shield employees from such mistreatment, and when necessary can serve as a sword if it does occur.
For employers, a thorough knowledge of their duties under the human rights laws is invaluable. The old adage really does ring true – an ounce of prevention is worth a pound of cure. Well-crafted human rights policies, and training to ensure management and staff are up to speed, are crucial for keeping your business in top form. Not only do they help protect employees and make them feel supported, but they can potentially help save a fortune in staving off future legal actions. Written by an untrained hand, these policies may not be effective in protecting your business. Any employer would be wise to consult professional advice in order to draft customized solutions for your business.
For employees, knowing your rights at work can be equally invaluable. No employee deserves to be denied employment, mistreated, or terminated simply because of who they are. Canadians are incredibly fortunate to be protected by such stringent human rights safeguards. For employees, if you feel that your rights are being violated in the workplace, there are many options available. An employment lawyer would be happy to consult with you in order to assess the situation and explain your legal options. There are also numerous free online official resources which, while they cannot provide advice, may help outline and explain your rights and how they are protected.
The bottom line is simple – while America has long been the ‘land of opportunity,’ Canada has long served as a model for human rights, and boasts protections for which we can all be truly grateful.