Com 315 Business Law And Ethics Case Study
COMM 315 Business Law and Ethics
07-Jan-08
|Law: |Ethics: |
|if it’s not written it’s not law |norms |
| |cultural values |
| |if behaviour results in the greater good then it’s ethical |
Class exercise: Trying to define legal versus ethical (class asked to provide examples of where legal/illegal/ethical/unethical meets):
| |Ethical …show more content…
|Unethical |
|Legal |Stopping at a red light |War |
| |Paying taxes |Adultery* |
| |Paying > minimum wage | |
|Illegal|Abortion (still on the books as illegal, but many exceptions |Drug dealing (~half of class didn’t think it was bad, re/ |
| |as to when it may be performed) |marijuana) |
| | |Murder (another debate re/ mercy killings, e.g. Robert |
| | |Latimer) |
| | |Capital punishment (again, ~half the class was pro death |
| | |penalty, the other half anti-death penalty) |
• Ethical norms create codification in the form of laws o i.e. laws grow out of ethics o norms develop over time
• Law is the written codification[1] of ethical norm[2]
Class exercise: described company, Plasma International: • Collects blood from African donors (pays 15 cents per pint) • Screens and stores blood • Ships to catastrophes when needed (sells for $25/pint) • Debated “ethics” of company o paying members of impoverished nation minimal amount for product o debate of appropriate price for product when company has monopoly on product in catastrophic scenario • Moral of the story? As business managers our responsibility is to maximize shareholder value, and how this can conflict with our ethics. Try to reconcile the two. o Business ethics conflicts with personal ethics throughout years
Prejudice & Stereotypes
Class exercise: describe the opposite gender in terms of stereotypes:
|Females |Males |
|Emotional |Lazy |
|Needy |Selfish |
|Sensitive |Gross |
|Nurturing |Insensitive |
|Irrational |Macho/ pigs |
Stereotyping results from prejudice (pre-judging, judging without knowing)
• Prejudice: assign a characteristic to a person that you don’t know because of a person’s ... age, race, gender, etc. o “fill in the blanks with inaccurate information”
• Systemic discrimination: o Within the “system” o E.g. glass ceiling o Very bad because we don’t see it
14-Jan-08
Equal Opportunity • Everyone has the same access to resources in society/community • Based solely on merit
Systemic discrimination • Exists at the subconscious level • It’s in “the system” • “Nobody’s out to get you, its just the way it is” • Need to overcome SD to achieve Equal Opportunity
How to overcome SD: Affirmative Action Projects • Not EO, but a tool to used to achieve EO • Four types: 1. Passive Non-Discrimination: Decide not to discriminate: “I know I have stereotypes but I’m not going to let them influence my decision” 2. Pure Non-Discrimination: Decider not only doesn’t discriminate, but also goes to areas where he wouldn’t normally recruit. ▪ E.g. Banker puts notices in an alternative publication 3. Soft Quota: If two people exactly the same, choose person from the minority group 4. Hard Quotas: setting aside positions for minority groups. Setbacks: ▪ Tends to reinforce the stereotype (e.g. she’s only here because she’s a woman and there was a quota – first time she makes a mistake will reinforce the stereotype) ▪ Reverse Discrimination*: There’s someone who should have gotten the job on merit but didn’t because of a hard quota ▪ Actionable if AA program*
*What makes AAP Affirmative Action Program legal as applied to the Hard Quota? Three conditions: 1. Voluntary – Has to be voluntary 2. Manifest imbalance – Must seek to overcome manifest imbalance (based on sex, religion, etc.) ▪ E.g. if 52% females vs. 48% males in general population, but 20% females and 80% males in a job. 3. Temporary – Must be temporary; cease to exist after overcoming manifest imbalance
*If all three conditions met then it’s an acceptable hard quota
Sexual Harassment in the Workplace: two types: 1. Quid pro quo: sex for reward or to avoid some kind of punishment ▪ Not difficult to recognize ▪ One occurrence is enough to ground case for sexual harassment ▪ Difficulty is in proof, so it’s a question of credibility 2. Poisoned Work Environment ▪ Generally between sexes ▪ E.g. he makes it extremely hard for her to do her job – makes doing her job more difficult than the average person ▪ Need 2, 3, 4 occurrences before it becomes SH
How to ground case for SH? 1. Prove that harassment has occurred (need to pass both) and her damages ▪ Subjective test: put harassment victim in witness box and get testimony (did you feel harassed? If answer = yes, then this test is passed) ▪ Objective test: Would the average woman have felt sexually harassed given these circumstances? ( If answer = yes, then this test is passed; use average woman to prevent claim of overly-sensitive woman) 2. Prove that EER knew about harassment and did nothing ▪ This is assumed once #1 is proven ▪ Strict liability: employer is responsible for SH acts committed by one employee on another ▪ It’s EER’s obligation to protect health, safety, and dignity of EEE [cross-references #4 in Quebec Charter] ▪ EER enforces sexual harassment policy to prevent from being sued
Three possible cumulative outcomes from SH case: 1. Disciplinary actions (recourse): sanctions against harassing EEE ▪ includes warning, demotion, termination ▪ generally loses job 2. Civil Recourse: law suit with damages ▪ Both EER and EEE are jointly and severally liable[3] ← EEE usually less patrimony[4] & EER usually more patrimony, so go after EER for larger potion of $$ (go to person with biggest patrimony) 3. Sexual Assault Case: if any touching involved ▪ “touching someone in a sexual manner without their consent”
Quebec Charter of Human Rights and Freedoms [p. 2]
Major difference between Canada and Quebec:
|Canada |Quebec |
|Protects you against your government |Applies between individuals |
|(including police forces, customs agents, and other federal, | |
|provincial, and municipal government agencies) | |
Fundamental Freedoms and Rights
[1] Right to life • Become human being at birth (separated from mother and takes first breath) • Become dead when a doctor signs a death certificate ← Can’t go against this right (this is why euthanasia, capital punishment illegal) • Jurididical personality = will acquire legal rights over time ← Right to contract, right to marry, etc.
[2] Human being’s life in peril, has right to assistance • Person[5] must come to aid • This one’s unique to Quebec
[3] Freedoms – person’s right to fundamental freedoms • Includes conscience,[6] religion, association,[7] etc. • Not absolute, can be limited ← E.g. expressing yourself in such a way as to hurt a segment of the population
[4] Safeguard dignity, honour, reputation
[5] Respect for private life collapses and expands throughout day • Home = greatest expectation of privacy • Into car = maybe glove compartment, interior, trunk • Into office = body, pockets, wallet, purse (not even your desk)
21-Jan-08
[6] Peaceful enjoyment & free disposition of property/except to the extent provide by law • You can do whatever you want with your property unless there’s a law saying you can’t do it
[7] Home is inviolable • No one can come in without your consent/ without consent
[8] Can’t enter upon property/take anything without consent • On/around your property
[9] Nondisclosure of confidential info[8] • Info that individualizes you, e.g. SIN • Professional secrecy e.g. = doctors, lawyers, ex offiico[9]
[9.1] There are limitations • Balance between individual rights vs. collective rights • Citizens: not really citizens of Quebec, can only be a citizen of a country • Where we get reasonable accommodation
Right to Equal Recognition and Exercise of Rights and Freedoms (Discrimination)
[10] Categories of prohibited discrimination[10] (not an exclusive list, can be read-in[11])
|Race |Sex |Sexual orientation |Age (except by law) |Handicap (e.g. alcohol or |
| | | | |(perceived) drug use) |
|Colour |Pregnancy |Civil status (e.g. married, single) |Religion | |
|Political conviction |Language |Ethic/national origin |Social condition | |
[10.1] Can’t harass based on [10] list
[11] Can’t make/display/authorize use of: • Notice • Symbol • Sign
... involving discrimination (within context)
[12] Can’t refuse to sell, change price, etc. based on [10] list
[13] Can’t make a rule that discriminates • And if you did, it can’t be invoked
[14] ignore
[15] Can’t prevent access to a place (e.g. put in wheelchair ramps)
[16] Can’t discriminate in an employment situation
[17] Can’t discriminate against joining union/ employer syndicate/ profession
[18] Headhunters/ recruitment agencies can’t discriminate
[18.1] Can’t require info from [10] list except for ← Listed in [20] ← AAP Affirmative Action Program • Can ask about criminal record (not listed in 20]
28-Jan-08
[18.2] Can’t penalize person for penal/criminal offense • If it’s not connected with employment or you’re pardoned • A protection for people who have served their time and been pardoned
[19] equal pay for equal work, regardless of [10] list
[20] May discriminate based on 3 things 1. qualification and aptitude: Bona fide occupational requirement (BFOR)[12] Test: -Legitimate Objective – Rational Connection -Good Faith -Logically connected to the objective – reasonable necessity 2. justified by nature of non-profit:
|Charitable |Religious |Educational |
|Philanthropic |Political | |
3. institution dedicated to welfare of ethnic group 4. ALSO SEC 20.1 – women live longer than men so life insurance is more expensive.
What is the process for determining if a rule or standard is a BFOR?
a) Step one: Establish a rational connection
Was the rule adopted for a purpose rationally connected to the performance of the job?
In the first step, the employer identifies the general purpose of the standard and determines whether it is rationally connected to the performance of the job. For example, in the case of the airline pilot, good eyesight is rationally connected to flying aircraft in all weather conditions. However, if there is no rational relationship, the employer is expected to accommodate and the rule cannot be a BFOR. For example, the employer believes that good customer service requires that all its employees stand when greeting customers. While the rule of standing to greet customers may have been adopted in good faith and with no intention to discriminate, it has a discriminatory impact on those who use wheelchairs. Is the standard reasonably necessary? No. One might legitimately argue that good customer service does not solely rely on standing to greet customers.
b) Step two: Establish good faith
Did the employer adopt the rule in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose? This step looks at the subjective element of the standard. The employer considers whether the standard was adopted with no intention of discriminating against an employee or group of employees.
The following considerations are helpful in determining whether the rule or standard was adopted in good faith:
. Why was the standard developed? . When and by whom was the standard developed? . What process was used to develop the standard?
If the standard is not thought to be reasonably necessary or motivated by discriminatory considerations, then the standard must be changed, as it cannot be a BFOR.
c) Step three: Establish reasonable necessity
Is the rule reasonably necessary to the accomplishment of that legitimate work-related purpose?
In this step the employer examines whether the standard is reasonably necessary. The employer must carefully consider all reasonable options for accommodation, short of undue hardship. If the employer, after exploring all options for accommodation, finds that it cannot accommodate, then the rule can be considered a BFOR.
On the other hand, if the employer finds that it can accommodate the employee, then the employer must change the rule or standard to incorporate the accommodation.
Here are some questions to ask in considering whether the standard is reasonably necessary.
. Were alternatives to the standard or rule considered? . If so, why weren’t they adopted? . Must all employees meet a single standard, or could different standards be adopted? . Does the standard treat some more harshly than others? . If so, was the standard designed to minimize this differential
treatment? . What steps were taken to find accommodations?
Is there evidence of undue hardship if accommodations were provided?
Special Interpretive Provisions
[49] Recourse or Remedy Section: what you can do if your rights are being violated: 1. Cessation – get an injunction, a court order that orders the person to stop doing what he shouldn’t be doing start doing what he should be doing) • Punishment is inflicted repeatedly until compliance| • For systemic discrimination (no intent to discriminate but it exists) 2. Compensatory Damages – compensate exactly for the damages sustained • To make you “whole” again • For systemic discrimination (no intent to discriminate but it exists) 3. Punitive Damages – for intentional discrimination 1. Punishing wrong-doer so he doesn’t do it again
NOT FOR EXAMS
Case Law: read and summarize cases. Tool to understand principle of cases: 1. Facts: 1-2 sentences... end with “and then he sues” 2. Questions: Sue for what? E.g.: • I have a religious freedom that requires me to sue [3] • Yes, but there’s also a right to safety [1] 3. Ratio: how does judge go from question to answer 1. Here’s where we get the rule of precedent[13] 4. Decision: who wins
Court System of Quebec: Judgment has precedent value Must have permission to go here
Court of Appeals decision: carries with it precedent • Precedent now used by Quebec AND Superior courts in future decisions
Supreme Court: cases that have national importance
Multani (Quebec Court of Appeals) First Class posting
|Facts |Mr. Multani goes to school with a kirpan (ceremonial dagger), it slipped out |
| |school freaked out |
| |he said it was part of his religion |
| |school said it forbidden |
| |Mt. Multani said it was part of his religion and sues |
|Question |safety/security of children sec[1] harmed by kirpan? |
| |freedom of religion sec[3] to wear a kirpan? |
| |is there some way for these to coexist [9.1], make reasonable accommodation? |
|Ratio |Started looking at case law, found two cases: |
| |courtroom – no kirpan allowed (no accommodation possible) – no weapons allowed |
| |airplane – no kirpan allowed |
| |[1] safety in opposition to [3] religion, |
|Decision |[1] safety wins: school is like courtroom so cannot allow kirpan |
| |School cannot [9.1] reasonably accommodate you – precedent set |
Multani (Supreme Court) p. 8
|Ratio |Canada is multicultural by definition, therefore it must do everything possible to accommodate |
| |Courtroom and Airplane is not the same thing as a schoolyard – more secure |
| |Looked precisely @ kirpans in schools vs. sincere religious beliefs |
| |Some way to accommodate both rights? Yes, by putting dagger in pouch that cannot be opened, therefore [1] |
| |safety no longer a problem |
| |We can accommodate religion [3] without impeding on other right |
|Decision |Overturns Court of Appeals decision, can bring in kirpan under specified conditions – precedent set |
Judge Richard Therrier (Supreme Court) p. 13
|Facts |South Shore lawyer (Therrier) applied to be a judge twice, turned down twice because asked about/ admitted to |
| |criminal record for aiding FLQ (harbouring fugitive sister) |
| |Therrier pardoned |
| |Third application: said no criminal record and got judgeship |
| |Opposition party noted he had criminal record, Therrier loses judge position and sues |
|Question |What is the effect of a pardon[14]? (can I deny my criminal record?) |
| |Can you ask me if I have a criminal record? |
| |Does [18.2] apply in this case? |
| |Is there some type of BFOR? |
|Ratio |Argument: I didn’t lie, I was pardoned, so what was the effect of my pardon – Answer: effect is to expunge (take |
| |away) effects for the future but doesn’t delete past. |
| |Argument: Under [18.1] couldn’t ask me about criminal record – Answer: Yes, not listed in [10] , but even if you |
| |think it should be there’s [20] BFOR |
| |Argument: Under [18.2] you can’t penalize me for past criminal offence – Answer: [18.2] can’t effect employment, |
| |but job of judge is office[15] not employment[16] so [18.2] doesn’t apply and therefore doesn’t affect Mr. |
| |Therrier |
| |Argument: there’s no [20] BFOR that prevents me from juding – Answer: yes there’s BFOR (criminal can’t judge a |
| |criminal) |
|Decision |Therrier cannot be a judge. Precedent set: pardon expunges effect for future, but pardon doesn’t prevent you from|
| |denying criminal conviction |
Amselem (Supreme Court) p. 17
|Facts |Amselem wants to build Succah (temporary shelter) on balcony for religious reasons |
| |Condo association says no, you can have a communal Succah down in garden |
| |Amselem says no, my religion says I have to have it so sues |
|Question |How do we prove religious freedom under court? |
| |Why is there no accommodation? (i.e. why can’t he practice) |
| |Amselem signed contract and agreed not to put up temporary shelter, change appearance/modify condo |
|Ratio |First prove sincere belief in the religion (witness confesses), then court will not intervene on how he practices|
| |Argument: Condo association: safety issue [1], will block security access, enjoyment of property issues [6] – |
| |Answer: No, only 9 days, you can reasonably accomodate [9.1] |
| |Argument: waived rights to religious freedom [3] – Answer: Court doesn’t think you can waive rights to religious |
| |freedom, but even if you could the contract wasn’t precise enough (would have to be extremely clear) |
|Decision |Succah allowed to be built on balcony No precedent set |
-----------------------
[1] Codify = (1) to reduce (laws, rules, etc.) to a code. (2) to make a digest of; arrange in a systematic collection.
[2] Norm = a standard, model, or pattern regarded as typical
[3] Jointly and severally liable: no need to split financial consequences 50-50, can go to EER for $$ for damages
[4] Patrimony: “invisible envelop in which you carry all your property”
[5] Person includes companies, partnerships, and individual human beings
[6] Conscience = right to hold an idea
[7] Association usually = right to unionize [8] Confidential = if you treat it as confidential
[9] Ex officio = (of it’s own initiative) because you’re a member of the court, tribunal = court
[10] Discrimination = effect of nullifying these rights because of (1) distribution, (2) exclusion, (3) preference
[11] Read-in = can include something in law even if it isn’t specifically listed
[12] BFOR = required for job
[13] precedent = previous higher court’s decision
[14] Pardon = “washes criminal record away”
[15] Office = doesn’t have someone controlling/supervising over you
[16] Employment = there’s someone over you controlling/supervising
-----------------------
Supreme Court of Canada
• 9 judges, always 3 from Quebec - Ottawa
Quebec Court of Appeals
• 3 judges
• No witnesses
• Only lawyers argue about mistakes made by first-instance judge
• Sits in Quebec City and Montre !+,/SYw x ˆ ‰ ° Ä [ i "%&78Ž¦".?BRTWúòåáÔáÔáÊáÊáÅá½á¶¬Ÿ”‡|á‡áÅátálbl * |hõnÑh“x€6? * |hõnÑh“x€hÆmâh“x€6?h[Cah“x€B* ph€h[Cah“x€5?B* ph€hV%1h“xal
•
Superior Court
• “Court of inherent jurisdiction”
• $70,000 or more
• Default court
•
Court of Quebec
• $70,000 or less
• Courts of first instance (first place you go if you have a problem)
• 1 judge, if you don’t like decision you can appeal
07-Jan-08
|Law: |Ethics: |
|if it’s not written it’s not law |norms |
| |cultural values |
| |if behaviour results in the greater good then it’s ethical |
Class exercise: Trying to define legal versus ethical (class asked to provide examples of where legal/illegal/ethical/unethical meets):
| |Ethical …show more content…
|Unethical |
|Legal |Stopping at a red light |War |
| |Paying taxes |Adultery* |
| |Paying > minimum wage | |
|Illegal|Abortion (still on the books as illegal, but many exceptions |Drug dealing (~half of class didn’t think it was bad, re/ |
| |as to when it may be performed) |marijuana) |
| | |Murder (another debate re/ mercy killings, e.g. Robert |
| | |Latimer) |
| | |Capital punishment (again, ~half the class was pro death |
| | |penalty, the other half anti-death penalty) |
• Ethical norms create codification in the form of laws o i.e. laws grow out of ethics o norms develop over time
• Law is the written codification[1] of ethical norm[2]
Class exercise: described company, Plasma International: • Collects blood from African donors (pays 15 cents per pint) • Screens and stores blood • Ships to catastrophes when needed (sells for $25/pint) • Debated “ethics” of company o paying members of impoverished nation minimal amount for product o debate of appropriate price for product when company has monopoly on product in catastrophic scenario • Moral of the story? As business managers our responsibility is to maximize shareholder value, and how this can conflict with our ethics. Try to reconcile the two. o Business ethics conflicts with personal ethics throughout years
Prejudice & Stereotypes
Class exercise: describe the opposite gender in terms of stereotypes:
|Females |Males |
|Emotional |Lazy |
|Needy |Selfish |
|Sensitive |Gross |
|Nurturing |Insensitive |
|Irrational |Macho/ pigs |
Stereotyping results from prejudice (pre-judging, judging without knowing)
• Prejudice: assign a characteristic to a person that you don’t know because of a person’s ... age, race, gender, etc. o “fill in the blanks with inaccurate information”
• Systemic discrimination: o Within the “system” o E.g. glass ceiling o Very bad because we don’t see it
14-Jan-08
Equal Opportunity • Everyone has the same access to resources in society/community • Based solely on merit
Systemic discrimination • Exists at the subconscious level • It’s in “the system” • “Nobody’s out to get you, its just the way it is” • Need to overcome SD to achieve Equal Opportunity
How to overcome SD: Affirmative Action Projects • Not EO, but a tool to used to achieve EO • Four types: 1. Passive Non-Discrimination: Decide not to discriminate: “I know I have stereotypes but I’m not going to let them influence my decision” 2. Pure Non-Discrimination: Decider not only doesn’t discriminate, but also goes to areas where he wouldn’t normally recruit. ▪ E.g. Banker puts notices in an alternative publication 3. Soft Quota: If two people exactly the same, choose person from the minority group 4. Hard Quotas: setting aside positions for minority groups. Setbacks: ▪ Tends to reinforce the stereotype (e.g. she’s only here because she’s a woman and there was a quota – first time she makes a mistake will reinforce the stereotype) ▪ Reverse Discrimination*: There’s someone who should have gotten the job on merit but didn’t because of a hard quota ▪ Actionable if AA program*
*What makes AAP Affirmative Action Program legal as applied to the Hard Quota? Three conditions: 1. Voluntary – Has to be voluntary 2. Manifest imbalance – Must seek to overcome manifest imbalance (based on sex, religion, etc.) ▪ E.g. if 52% females vs. 48% males in general population, but 20% females and 80% males in a job. 3. Temporary – Must be temporary; cease to exist after overcoming manifest imbalance
*If all three conditions met then it’s an acceptable hard quota
Sexual Harassment in the Workplace: two types: 1. Quid pro quo: sex for reward or to avoid some kind of punishment ▪ Not difficult to recognize ▪ One occurrence is enough to ground case for sexual harassment ▪ Difficulty is in proof, so it’s a question of credibility 2. Poisoned Work Environment ▪ Generally between sexes ▪ E.g. he makes it extremely hard for her to do her job – makes doing her job more difficult than the average person ▪ Need 2, 3, 4 occurrences before it becomes SH
How to ground case for SH? 1. Prove that harassment has occurred (need to pass both) and her damages ▪ Subjective test: put harassment victim in witness box and get testimony (did you feel harassed? If answer = yes, then this test is passed) ▪ Objective test: Would the average woman have felt sexually harassed given these circumstances? ( If answer = yes, then this test is passed; use average woman to prevent claim of overly-sensitive woman) 2. Prove that EER knew about harassment and did nothing ▪ This is assumed once #1 is proven ▪ Strict liability: employer is responsible for SH acts committed by one employee on another ▪ It’s EER’s obligation to protect health, safety, and dignity of EEE [cross-references #4 in Quebec Charter] ▪ EER enforces sexual harassment policy to prevent from being sued
Three possible cumulative outcomes from SH case: 1. Disciplinary actions (recourse): sanctions against harassing EEE ▪ includes warning, demotion, termination ▪ generally loses job 2. Civil Recourse: law suit with damages ▪ Both EER and EEE are jointly and severally liable[3] ← EEE usually less patrimony[4] & EER usually more patrimony, so go after EER for larger potion of $$ (go to person with biggest patrimony) 3. Sexual Assault Case: if any touching involved ▪ “touching someone in a sexual manner without their consent”
Quebec Charter of Human Rights and Freedoms [p. 2]
Major difference between Canada and Quebec:
|Canada |Quebec |
|Protects you against your government |Applies between individuals |
|(including police forces, customs agents, and other federal, | |
|provincial, and municipal government agencies) | |
Fundamental Freedoms and Rights
[1] Right to life • Become human being at birth (separated from mother and takes first breath) • Become dead when a doctor signs a death certificate ← Can’t go against this right (this is why euthanasia, capital punishment illegal) • Jurididical personality = will acquire legal rights over time ← Right to contract, right to marry, etc.
[2] Human being’s life in peril, has right to assistance • Person[5] must come to aid • This one’s unique to Quebec
[3] Freedoms – person’s right to fundamental freedoms • Includes conscience,[6] religion, association,[7] etc. • Not absolute, can be limited ← E.g. expressing yourself in such a way as to hurt a segment of the population
[4] Safeguard dignity, honour, reputation
[5] Respect for private life collapses and expands throughout day • Home = greatest expectation of privacy • Into car = maybe glove compartment, interior, trunk • Into office = body, pockets, wallet, purse (not even your desk)
21-Jan-08
[6] Peaceful enjoyment & free disposition of property/except to the extent provide by law • You can do whatever you want with your property unless there’s a law saying you can’t do it
[7] Home is inviolable • No one can come in without your consent/ without consent
[8] Can’t enter upon property/take anything without consent • On/around your property
[9] Nondisclosure of confidential info[8] • Info that individualizes you, e.g. SIN • Professional secrecy e.g. = doctors, lawyers, ex offiico[9]
[9.1] There are limitations • Balance between individual rights vs. collective rights • Citizens: not really citizens of Quebec, can only be a citizen of a country • Where we get reasonable accommodation
Right to Equal Recognition and Exercise of Rights and Freedoms (Discrimination)
[10] Categories of prohibited discrimination[10] (not an exclusive list, can be read-in[11])
|Race |Sex |Sexual orientation |Age (except by law) |Handicap (e.g. alcohol or |
| | | | |(perceived) drug use) |
|Colour |Pregnancy |Civil status (e.g. married, single) |Religion | |
|Political conviction |Language |Ethic/national origin |Social condition | |
[10.1] Can’t harass based on [10] list
[11] Can’t make/display/authorize use of: • Notice • Symbol • Sign
... involving discrimination (within context)
[12] Can’t refuse to sell, change price, etc. based on [10] list
[13] Can’t make a rule that discriminates • And if you did, it can’t be invoked
[14] ignore
[15] Can’t prevent access to a place (e.g. put in wheelchair ramps)
[16] Can’t discriminate in an employment situation
[17] Can’t discriminate against joining union/ employer syndicate/ profession
[18] Headhunters/ recruitment agencies can’t discriminate
[18.1] Can’t require info from [10] list except for ← Listed in [20] ← AAP Affirmative Action Program • Can ask about criminal record (not listed in 20]
28-Jan-08
[18.2] Can’t penalize person for penal/criminal offense • If it’s not connected with employment or you’re pardoned • A protection for people who have served their time and been pardoned
[19] equal pay for equal work, regardless of [10] list
[20] May discriminate based on 3 things 1. qualification and aptitude: Bona fide occupational requirement (BFOR)[12] Test: -Legitimate Objective – Rational Connection -Good Faith -Logically connected to the objective – reasonable necessity 2. justified by nature of non-profit:
|Charitable |Religious |Educational |
|Philanthropic |Political | |
3. institution dedicated to welfare of ethnic group 4. ALSO SEC 20.1 – women live longer than men so life insurance is more expensive.
What is the process for determining if a rule or standard is a BFOR?
a) Step one: Establish a rational connection
Was the rule adopted for a purpose rationally connected to the performance of the job?
In the first step, the employer identifies the general purpose of the standard and determines whether it is rationally connected to the performance of the job. For example, in the case of the airline pilot, good eyesight is rationally connected to flying aircraft in all weather conditions. However, if there is no rational relationship, the employer is expected to accommodate and the rule cannot be a BFOR. For example, the employer believes that good customer service requires that all its employees stand when greeting customers. While the rule of standing to greet customers may have been adopted in good faith and with no intention to discriminate, it has a discriminatory impact on those who use wheelchairs. Is the standard reasonably necessary? No. One might legitimately argue that good customer service does not solely rely on standing to greet customers.
b) Step two: Establish good faith
Did the employer adopt the rule in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose? This step looks at the subjective element of the standard. The employer considers whether the standard was adopted with no intention of discriminating against an employee or group of employees.
The following considerations are helpful in determining whether the rule or standard was adopted in good faith:
. Why was the standard developed? . When and by whom was the standard developed? . What process was used to develop the standard?
If the standard is not thought to be reasonably necessary or motivated by discriminatory considerations, then the standard must be changed, as it cannot be a BFOR.
c) Step three: Establish reasonable necessity
Is the rule reasonably necessary to the accomplishment of that legitimate work-related purpose?
In this step the employer examines whether the standard is reasonably necessary. The employer must carefully consider all reasonable options for accommodation, short of undue hardship. If the employer, after exploring all options for accommodation, finds that it cannot accommodate, then the rule can be considered a BFOR.
On the other hand, if the employer finds that it can accommodate the employee, then the employer must change the rule or standard to incorporate the accommodation.
Here are some questions to ask in considering whether the standard is reasonably necessary.
. Were alternatives to the standard or rule considered? . If so, why weren’t they adopted? . Must all employees meet a single standard, or could different standards be adopted? . Does the standard treat some more harshly than others? . If so, was the standard designed to minimize this differential
treatment? . What steps were taken to find accommodations?
Is there evidence of undue hardship if accommodations were provided?
Special Interpretive Provisions
[49] Recourse or Remedy Section: what you can do if your rights are being violated: 1. Cessation – get an injunction, a court order that orders the person to stop doing what he shouldn’t be doing start doing what he should be doing) • Punishment is inflicted repeatedly until compliance| • For systemic discrimination (no intent to discriminate but it exists) 2. Compensatory Damages – compensate exactly for the damages sustained • To make you “whole” again • For systemic discrimination (no intent to discriminate but it exists) 3. Punitive Damages – for intentional discrimination 1. Punishing wrong-doer so he doesn’t do it again
NOT FOR EXAMS
Case Law: read and summarize cases. Tool to understand principle of cases: 1. Facts: 1-2 sentences... end with “and then he sues” 2. Questions: Sue for what? E.g.: • I have a religious freedom that requires me to sue [3] • Yes, but there’s also a right to safety [1] 3. Ratio: how does judge go from question to answer 1. Here’s where we get the rule of precedent[13] 4. Decision: who wins
Court System of Quebec: Judgment has precedent value Must have permission to go here
Court of Appeals decision: carries with it precedent • Precedent now used by Quebec AND Superior courts in future decisions
Supreme Court: cases that have national importance
Multani (Quebec Court of Appeals) First Class posting
|Facts |Mr. Multani goes to school with a kirpan (ceremonial dagger), it slipped out |
| |school freaked out |
| |he said it was part of his religion |
| |school said it forbidden |
| |Mt. Multani said it was part of his religion and sues |
|Question |safety/security of children sec[1] harmed by kirpan? |
| |freedom of religion sec[3] to wear a kirpan? |
| |is there some way for these to coexist [9.1], make reasonable accommodation? |
|Ratio |Started looking at case law, found two cases: |
| |courtroom – no kirpan allowed (no accommodation possible) – no weapons allowed |
| |airplane – no kirpan allowed |
| |[1] safety in opposition to [3] religion, |
|Decision |[1] safety wins: school is like courtroom so cannot allow kirpan |
| |School cannot [9.1] reasonably accommodate you – precedent set |
Multani (Supreme Court) p. 8
|Ratio |Canada is multicultural by definition, therefore it must do everything possible to accommodate |
| |Courtroom and Airplane is not the same thing as a schoolyard – more secure |
| |Looked precisely @ kirpans in schools vs. sincere religious beliefs |
| |Some way to accommodate both rights? Yes, by putting dagger in pouch that cannot be opened, therefore [1] |
| |safety no longer a problem |
| |We can accommodate religion [3] without impeding on other right |
|Decision |Overturns Court of Appeals decision, can bring in kirpan under specified conditions – precedent set |
Judge Richard Therrier (Supreme Court) p. 13
|Facts |South Shore lawyer (Therrier) applied to be a judge twice, turned down twice because asked about/ admitted to |
| |criminal record for aiding FLQ (harbouring fugitive sister) |
| |Therrier pardoned |
| |Third application: said no criminal record and got judgeship |
| |Opposition party noted he had criminal record, Therrier loses judge position and sues |
|Question |What is the effect of a pardon[14]? (can I deny my criminal record?) |
| |Can you ask me if I have a criminal record? |
| |Does [18.2] apply in this case? |
| |Is there some type of BFOR? |
|Ratio |Argument: I didn’t lie, I was pardoned, so what was the effect of my pardon – Answer: effect is to expunge (take |
| |away) effects for the future but doesn’t delete past. |
| |Argument: Under [18.1] couldn’t ask me about criminal record – Answer: Yes, not listed in [10] , but even if you |
| |think it should be there’s [20] BFOR |
| |Argument: Under [18.2] you can’t penalize me for past criminal offence – Answer: [18.2] can’t effect employment, |
| |but job of judge is office[15] not employment[16] so [18.2] doesn’t apply and therefore doesn’t affect Mr. |
| |Therrier |
| |Argument: there’s no [20] BFOR that prevents me from juding – Answer: yes there’s BFOR (criminal can’t judge a |
| |criminal) |
|Decision |Therrier cannot be a judge. Precedent set: pardon expunges effect for future, but pardon doesn’t prevent you from|
| |denying criminal conviction |
Amselem (Supreme Court) p. 17
|Facts |Amselem wants to build Succah (temporary shelter) on balcony for religious reasons |
| |Condo association says no, you can have a communal Succah down in garden |
| |Amselem says no, my religion says I have to have it so sues |
|Question |How do we prove religious freedom under court? |
| |Why is there no accommodation? (i.e. why can’t he practice) |
| |Amselem signed contract and agreed not to put up temporary shelter, change appearance/modify condo |
|Ratio |First prove sincere belief in the religion (witness confesses), then court will not intervene on how he practices|
| |Argument: Condo association: safety issue [1], will block security access, enjoyment of property issues [6] – |
| |Answer: No, only 9 days, you can reasonably accomodate [9.1] |
| |Argument: waived rights to religious freedom [3] – Answer: Court doesn’t think you can waive rights to religious |
| |freedom, but even if you could the contract wasn’t precise enough (would have to be extremely clear) |
|Decision |Succah allowed to be built on balcony No precedent set |
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[1] Codify = (1) to reduce (laws, rules, etc.) to a code. (2) to make a digest of; arrange in a systematic collection.
[2] Norm = a standard, model, or pattern regarded as typical
[3] Jointly and severally liable: no need to split financial consequences 50-50, can go to EER for $$ for damages
[4] Patrimony: “invisible envelop in which you carry all your property”
[5] Person includes companies, partnerships, and individual human beings
[6] Conscience = right to hold an idea
[7] Association usually = right to unionize [8] Confidential = if you treat it as confidential
[9] Ex officio = (of it’s own initiative) because you’re a member of the court, tribunal = court
[10] Discrimination = effect of nullifying these rights because of (1) distribution, (2) exclusion, (3) preference
[11] Read-in = can include something in law even if it isn’t specifically listed
[12] BFOR = required for job
[13] precedent = previous higher court’s decision
[14] Pardon = “washes criminal record away”
[15] Office = doesn’t have someone controlling/supervising over you
[16] Employment = there’s someone over you controlling/supervising
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Supreme Court of Canada
• 9 judges, always 3 from Quebec - Ottawa
Quebec Court of Appeals
• 3 judges
• No witnesses
• Only lawyers argue about mistakes made by first-instance judge
• Sits in Quebec City and Montre !+,/SYw x ˆ ‰ ° Ä [ i "%&78Ž¦".?BRTWúòåáÔáÔáÊáÊáÅá½á¶¬Ÿ”‡|á‡áÅátálbl * |hõnÑh“x€6? * |hõnÑh“x€hÆmâh“x€6?h[Cah“x€B* ph€h[Cah“x€5?B* ph€hV%1h“xal
•
Superior Court
• “Court of inherent jurisdiction”
• $70,000 or more
• Default court
•
Court of Quebec
• $70,000 or less
• Courts of first instance (first place you go if you have a problem)
• 1 judge, if you don’t like decision you can appeal