By Stuart Rudner
Over the weekend, I saw the movie 42, the story of Jackie Robinson and his experience as the first black player in Major League Baseball.
The movie was a stark reminder of the racism that existed in our society and, unfortunately, continues to exist, albeit to a lesser extent. Although the movie revolves around baseball players, the central issue is one that is particularly relevant in the context of human resources and HR Law — shouldn't all applicants be given equal opportunity, regardless of the color of their skin or other personal and irrelevance characteristics?
While many people talk about the resistance and outright hatred Robinson experienced at the hands of other teams and their fans, what was particularly interesting to me was observing the reactions of the personnel within his own organization.
The players on the team were decidedly mixed with respect to whether or not they supported the idea of a black player on their team. In fact, when it became clear he would be promoted to the major leagues, several members of the team signed a petition saying they would not play with them. We would like to think that race is no longer a factor in the hiring process. However, we know this is not always the case.
There are two different types of discrimination: direct and indirect.
Direct discrimination is pretty obvious. It involves signs or notices that say things such as "no blacks or jews, " or "women should not apply."
Or, in the case of one recent ad for a CBC television character, no Caucasians. Indirect discrimination is less blunt but no less difficult to deal with. It can take the form of a requirement that all workers be available to work on Saturday or Sunday, when that is their Sabbath. Or it can be a uniform requirement that conflicts with an individual's religious beliefs, or any other workplace rule that has the effect of excluding a particular group. While some rules are legitimate, others are not bona fide occupational requirements and prevent certain segments of the population from working for no good reason.
I often share the story of my grandmother’s experience as a young Jewish woman working in the Depression era in Montreal. She was fortunate to have an office job at a time when money and jobs were scarce.
When she told her boss she would be away from work for the Jewish high holidays, she was effectively told that if she didn’t come in on those days, she should not bother coming back at all. For those of us that knew my grandmother, it is not surprising she was true to her beliefs and did not work on the holiest days of her calendar despite the fact that she needed the job.
Fortunately, her boss relented and she kept her job. However, many others in similar situations are not so fortunate. And although that happened 70 or 80 years ago, the unfortunate reality is that some workers encounter similar obstacles today. While most employers know direct discrimination is wrong (legally and morally), they often fail to see they have adopted policies that create unnecessary barriers for some potential employees.
A modern example is the fact that the protection of women and parents has evolved. It has become apparent that many employers explicitly or implicitly avoid hiring women of childbearing age in order to avoid the “hassles.”
Recently, I commented on the decision to extend the definition of “family status” to include childcare obligations, and the fact this may have the unintended result of creating a new barrier to employment for woman.
While there are employers that engage in discriminatory practices, I am not naïve enough to think employees are entirely innocent. I have helped countless employers defend themselves against baseless allegations of discrimination when all they were guilty of was making a legitimate business decision.
Sadly, some employees take advantage of the protections afforded to them in order to make unfounded allegations and effectively take advantage of the system. Our human rights system is designed to allow easy and relatively inexpensive access to justice for those that are victimized.
Unfortunately, this has had the effect of allowing some unscrupulous complainants to hold employers hostage, knowing that even if the employer successfully defends an allegation that it breached human rights legislation, doing so can cost tens of thousands of dollars. Many employers will make the practical decision to pay some money, despite the fact they were not guilty of any wrongdoing, in order to avoid the cost, risk and burden of defending a claim.
I have never been ideologically married to either “side” of the employment relationship. I know that some employers are less than scrupulous, and some employees take advantage of a legal system that was set up to protect them.
I often work with employers to assess their policies and practices in order to ensure that they are not in breach of human rights or other legislation. If claims are brought against them, I will defend them against the allegations. But there are also situations where I will defend the rights of an employee that has had her rights trampled upon.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at firstname.lastname@example.org. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.