Could human rights law increase some kinds of discrimination?
Here’s a question that probably few lawmakers are interested in asking themselves: does human rights legislation make the people it is designed to protect less desirable to employers?
For example, women have received broad rights with respect to maternity leaves and returning to work afterward; might this fact discourage an employer from hiring women in future?
Of course, human rights law exists to protect women in the face of discrimination, but victims can only complain if they realize that someone has discriminated against them. (Men, too, now have access to parental leave, which also makes them potential victims of discrimination in this way.)
It sounds extreme, sure, and maybe in Canada our human rights system has sufficient checks and balances to ensure that women and other people don’t face discrimination in employment matters (or have recourse if they do). But it’s an intriguing question nonetheless.
I’d never thought of the issue myself, until I read Jill Fehrenbacher discuss it in response to an article by Alexandra Shulman, editor of British Vogue. Shulman discusses the situation in the United Kingdom, which appears to have recently offered women a full year of protected maternity leave, similar to our situation here, along with some other related rights.
But she complains of mothers returning to work with unreasonable demands for flexibility. “When they do return”, she says, “many of them don’t want exactly their old job back. They want the same role but moulded into a time frame that suits family life better. They want to investigate four-day weeks, flexitime, jobshares, and they often then have another baby and are entitled to take another year off. But is this realistic?”
That seems like a reasonable question. In fact, she makes a pretty convincing argument from an employer’s point of view. But let’s look at it slightly differently. Is it realistic for new mothers returning to work to request accommodation from their employers so that they can balance their work and family lives—thus continuing to contribute their knowledge and expertise?
Shulman’s essay offers little insight into the deeper workings of the British maternity leave system, so I have little idea how much leeway employers have in negotiating with employees returning from maternity leave. She seems to think employers must simply give in to any demands mothers make of them.
(The Citizen’s Advice Bureau offers this tidbit on its Adviceguide.org.uk website: “You have no automatic right to return to work part time after maternity leave. However, you may have the right to ask for flexible working and this request must be considered seriously by your employer. If they do not consider it seriously, this could be sex discrimination.”)
In Canada, employers are obliged to give the returning employee her (or his, in the case of parental leave) prior job or a similar job at the same rate of pay. Of course, no employee is prohibited from making a request for accommodation of her employer; and if the employer doesn’t “seriously consider” the request, a human rights tribunal or court might find discrimination. Is employer consideration unreasonable? How about employer-employee dialogue?
It might not seem like a relevant issue in Canada, but there is no doubt that the debate continues over human rights and their effect on women’s employability. Earlier this year, the Ontario Human Rights Tribunal found that an employer fired an employee on her first day at work for revealing that she was pregnant. The defendant in the case hadn’t even made a request for accommodation that the employer might seriously consider. It appears clear that if the employer had known before hiring the woman that she was pregnant, it would not have hired her in the first place—which would be clearly discriminatory.
Maybe Shulman was being intentionally controversial. She did write the article for the tabloid Daily Mail after all. In any case, women (and men) do face discrimination with respect to employment in Canada, and it’s easy to imagine that some employers don’t wish to have the “burden” of pregnant employees on their shoulders. But people must work, and parents with new children need jobs as well as (or more than) anyone else. And that is part of the purpose of the human rights all Canadians legally enjoy.
What do you think? Have we reached a point where human rights have become a burden on employers? Will we ever reach such a time?
First Reference Human Resources and Compliance Assistant Editor