Employment Laws: Arguments, Decision and Rationale

This article discusses the arguments of the applicant and respondent in a case of employment discrimination based on gender. The applicant argues that the advertisement seeking only women candidates for the post of ‘residential unit officer’ amounts to direct discrimination. The respondent argues that the requirement of women candidates for the post of residential unit officer is a bona fide occupational requirement and does not amount to discrimination on gender grounds. The article presents the decision and rationale behind it. The subject is employment laws, and the course code, course name, and college/university are not mentioned.

Running head: EMPLOYMENT LAWS
Employment Laws
Name of the Student
Name of the University
Author Note

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Table of Contents
Arguments of the Applicant.............................................................................................................2
Arguments for the Respondent........................................................................................................4
Decision...........................................................................................................................................6
Rationale of the decision.................................................................................................................6
References........................................................................................................................................8

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Arguments of the Applicant
On the facts here, the arguments of the applicant, Herb Wilco may be made on the following
grounds:
a) the advertisement seeking candidates to work for the new prison near Whoville, Alberta
amounts to direct discrimination as the post for ‘Residential Unit Officer’ was only for
women candidates only;
b) the advertisement has contravened section [7(1)] of the Alberta Human Rights Act
[2000]. The provision stipulates that no employer shall refuse to employ any person or
discriminate against any person with respect to employment by stipulating any condition
that amounts to discrimination on the grounds of religious beliefs, gender, color, physical
or mental disability etc (Adams, 2016);
c) the advertisement seeking only women candidates for the post of ‘residential unit
officer’ amounts to a violation of section [8(1)] of Human Rights Act 2000. The
provision prohibits the publishing or circulation of any advertisement with respect to
employment which directly or indirectly expresses preference resulting in discrimination
on the grounds of gender, physical/mental disability, marital status or sexual orientation;
d) Direct discrimination whether it is intentional or unintentional, it is considered as
discrimination under the Alberta Human Rights Act 2000;
e) the applicant is qualified for applying for the post in the new prison as he holds a
Correctional Services Certificate and has been working for 20 years in correctional
institutes all over Canada. This establishes the working qualification of the applicant,

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which is appropriate for the advertisement regarding correctional services officer
positions.
f) the discrimination or exclusion is not reasonable and neither justified;
g) the applicant has adequate work experience in the correctional services institutions for the
past 20 years and even holds a certificate degree
h) the advertisement was discriminating and was not rationally associated with the job
performance as the applicant was qualified for the post of residential unit officer in the
new prison;
i) the Human Rights Tribunal may either order the respondent to provide the applicant with
rights or privileges that was denied on grounds of gender discrimination as per section
[32(1)] of the Alberta Human Rights Act 2000;

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Arguments for the Respondent
The respondent may argue on the following grounds:
a) the advertisement seeking candidates to work for the new prison in Alberta was not
discriminating on the grounds of gender as the new warden of the prison, Dr. Seuss had
authorized to publish several advertisements apart from the advertisement of the position
for ‘residential Unit officer’;
b) the advertisement regarding the post for ‘residential unit officer’ was only for seeking
women candidates and this limitation is justified and reasonable. This is because the
responsibilities under the post would include walking through the prison corridors along
the individual cells including both day and night shifts (Painter & Holmes, 2015). The
cells offer little privacy and women prisoners sleep, dress and undress within their cells
which is fully visible from the corridor;
c) the respondent may contend that the requirement of women candidates for the post of
residential unit officer is a bona fide occupational requirement and does not amount to
discrimination on gender grounds.
d) the respondent may refer to the Meiorin decision given by the Supreme Court of Canada
in British Columbia Public services Employee relations Commission v British
Columbia Government and Service Employees Union [1999] (B. C.G.S.E.U.) 35
C.H.R.R. D/257 (S.C.C.). The court set out three-part test which determines whether an
occupational requirement is justified and reasonable;
e) the respondent must establish based on a balance of probabilities that the occupational
requirement was:

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i. adopted in good and honest faith as well as belief that it was necessary to fulfill
the legal purpose;
ii. adopted for a reason that is rationally associated with the job performance;
iii. reasonably necessary to achieve the legitimate purpose;
f) the respondent may argue that it was not possible for employing candidates other than
women for the post of residential unit officer without suffering undue hardship in the
form of infringement of privacy of women prisoners;
g) since the inmates are women it is only justified and reasonable to appoint a women for
the post as the individual cells are directly visible from the corridor. The requirement is
necessary to fulfill the legitimate purpose and is rationally associated with the job
performance (Harder, 2016). This is because the residential unit officer will have to walk
through the corridors along with the individual cells where the women prisoners change
dresses and sleep;
h) the respondent may further argue that the occupational requirement included other
responsibilities as well for which no specific references were made and required qualified
candidate for carrying out such duties in the correctional institutional services.

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Decision
After considering the facts and circumstances and the arguments presented by both the
respondent and the applicant, the decision is likely to be in favor of the respondent that is,
Whoville Penitentiary for Women (Province of Alberta) as the advertisement seeking
candidates to work in new prison does not amount to discrimination based on gender. The
discrimination amounts to any contravention of section [7(1)] and section [8(1)] of the Alberta
Human Rights Act 2000.
Rationale of the decision
As per the facts of case, the respondent provided the occupational requirement in good
and honest faith with the belief that it was necessary to fulfill the legal purpose of keeping a
watch on the women prisoners. and appointing men for the post would have been illegitimate, as
it would have infringed the privacy of women inmates completely (Taylor, Peoples & Petersen,
2016). The requirement is justified and reasonable as appointing male member for the post
would have been unjustified and amounted to infringement of privacy of the women inmates in
the prison. Further, the job advertisement was for a new facility that was specifically opened for
the female prisoners. As per the facts, the residential unit officer is required to walk through the
corridor along with the individual cells during day as well as in the night wherein the women
prisoners usually sleep and dress or undress themselves which is visible through the corridor.
Hence, it is only reasonable that a women candidate is appointed for the post.
It is rationally associated with the job performance. This is because the residential unit
officer will have to walk through the corridors along with the individual cells where the women

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prisoners change dresses and sleep. The post for the residential unit officer was only for women
as otherwise it would not have reasonably achieved the legitimate purpose.
Lastly, the test also requires that employers must consider the capabilities of different
other members before establishing a particular occupational requirement as justified and
reasonable. The respondent published advertisement that required candidates such as observing
conduct of the inmates to avert escapes and disturbances or supervise tem during their recreation,
meals and assignment periods. There were other responsibilities as well which included escorting
the prisoners during temporary leaves or during transit and preparing program, release, transfer,
and make relevant reports. The applicant who holds a correctional services institution degree and
working experience of 20 years is capable of applying for the other positions stipulated in the
advertisement (Barak, 2016). This establishes that this was done considering the capabilities of
different other members of the society to accommodate them. Therefore, the respondent has
successfully established the three tests that were outlined in the Meiorin case.
The respondent merely published an advertisement that required women candidates for
the post of ‘residential unit officer’ only to ensure that women prisoners are supervised by
women officer to safeguard their privacy within their individual cells where they openly change
dresses and sleep. Therefore, the advertisement is not discriminatory on the ground of gender
(Taylor, Peoples & Petersen, 2016).

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References
Adams, E. M. (2016). Human rights at work: Physical standards for employment and human
rights law. Applied physiology, nutrition, and metabolism, 41(6), S63-S73.
Alberta Human Rights Act 2000
Barak, M. E. M. (2016). Managing diversity: Toward a globally inclusive workplace. Sage
Publications.
Bartlett, K. T., Rhode, D. L., & Grossman, J. L. (2016). Gender and law: Theory, doctrine,
commentary. Wolters Kluwer Law & Business.
Bowal, P., Craig, J., & Kelndorfer, M. (2014). Protection of Young Workers in Canadian
Employment Law.
British Columbia Public services Employee relations Commission v British Columbia
Government and Service Employees Union [1999] (B. C.G.S.E.U.) 35 C.H.R.R. D/257
(S.C.C.)
Harder, H. G. (2016). Human Rights and Duty to Accommodate in Employment: Perspectives
from Canada. In Disability Management and Workplace Integration (pp. 86-100).
Routledge.
Painter, R., & Holmes, A. (2015). Cases and materials on Employment Law. Oxford University
Press, USA.

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Taylor, N. A., Peoples, G. E., & Petersen, S. R. (2016). Load carriage, human performance, and
employment standards. Applied Physiology, Nutrition, and Metabolism, 41(6), S131-
S147.
Taylor, S., & Emir, A. (2015). Employment law: an introduction. Oxford University Press, USA.