By Howard Levitt
This week, a trio of tales from the employment trenches:
1) Piers Morgan, host of Good Morning Britain, was recently assailed in the Twittersphere for declaring it reasonable for employers to require their receptionists to wear high heels and lipstick. Could a Canadian employer do that?
There is nothing illegal in an employer stipulating that it will hire only good-looking people to work at the reception desk. For that matter, employers could legally hire only good-looking people for all positions — even if physical appearance were irrelevant to the job. They could even make such a demand if the job were in the mailroom. An employer could brazenly publicly announce that he or she prefers to work near, and therefore will only hire, beautiful people — and would have no liability.
Of course such a hiring practice is discriminatory. But discrimination per se is not illegal. Discrimination based on one of the few grounds in the human rights code is, such as on race, gender, physical disability, sexual orientation and the like.
It would, however, be illegal to require that only good-looking women could apply to be a receptionist or that a receptionist could not wear a hijab, as that discriminates against men and Muslims.
But it is not illegal to stipulate that the receptionist, whatever their race, creed or gender, be attractive, know how to play chess or any arbitrary predilection, however irrelevant, as long as the employer does not discriminate on the few narrow grounds in the human rights code.
As it happens, Piers Morgan’s suggestion could be illegal in Canada if it was seen by our human rights board to require sexualized attire. No employer could require that, unless that attire was implicit in the very nature of the business’ brand, such as that of Hooters or a strip club.
2) Can women be fired during maternity leave?
The law provides new mothers triple protection. It is a presumptive wrongful dismissal, and violates the Human Rights and Employment Standards acts.
Formerly, women were afraid to use their maternity leave rights, fearful that their employer would prefer their replacement and never take them back. Often they were right. That is why the Employment Standards Act requires employers to offer women their jobs back at the end of their leave or, if that precise position no longer exists, a comparable one. If the employer fails to do so, the employee can recover their job and additional damages.
There are two exceptions. One is that if there is a reorganization with concomitant layoffs such that the employee would have lost her job in any event, the employee has no recourse. But the courts, Employment Standards and Human Rights tribunals are aware that employers concoct fictitious reorganizations and then have someone with a different job title perform the function the woman on leave had been doing.
The other exception is if the employer discovers some serious misconduct that preceded the woman’s leave. She can then be terminated for cause. Again, the courts and tribunals will be skeptical both as to whether the employer only learned of the misconduct after the employee left and as to whether the grounds of cause are real, or falsified to allow the business to legally replace the new mother with another worker.
3) Can the contents of a contract signed after an employee has started with an employer remove or reduce their seniority?
The first thing to note in this instance is that seniority rights do not exist for non-union employees. Even unionized employees have them only if they are negotiated into their collective agreements.
In the case of higher vacation pay for longer-service employees, a contract could indeed reduce that to the Employment Standards Act minimum, which is two weeks in most provinces.
If the question refers to higher wrongful-dismissal damages, the answer is also yes. The existing severance entitlement the employee has accrued through their years of service, age and other factors, can be changed to a lesser one, as long as the contract provides for severance of at least the amount required by the Employment Standards Act.
To change any terms of employment through a contract after employment has begun, the employer must provide the employee with something new, such as a raise or bonus, and offer the choice of the bonus and the contract, or neither. Otherwise the contract is entirely unenforceable. Employment contracts seen for the first time and signed on an employee’s first day of work cannot be enforced.