Human Rights at Work: Physical Standards for Employment and Human Rights Law
(2016) Applied Physiology, Nutrition, and Metabolism (Forthcoming)
39 Pages Posted: 26 Feb 2016
Date Written: February 24, 2016
Abstract
This article focuses on the human rights dimensions of creating and implementing physical standards for employment for prospective and incumbent employees. The article argues that physical standards for employment engage two fundamental elements of employment law: freedom of contract and workplace human rights. While the former promotes an employer’s right to set workplace standards and make decisions of whom to hire and terminate, the latter prevents employers from discriminating against individuals contrary to human rights legislation. With comparative reference to applicable human rights legislative regimes and their judicial interpretation in Canada, the United States, the United Kingdom, and Australia this article analyzes the judicial preference for criterion validation in physical testing mechanisms. Drawing, in particular, on the Supreme Court of Canada's influential Meiorin decision, this article argues that an effective balance between workplace safety and human rights concerns can be found, not in applying different standards to different groups of individuals, but in an approach that holds employers to demonstrating a sufficient connection between a uniform physical standard of employment and the actual minimum requirements to perform the job safety and efficiently. Combined with an employer’s duty to accommodate employees, such an approach to physical standards for employment conceives of worker and public safety and workplace diversity as emanating from a shared concern for human rights.
Keywords: Human Rights; Employment Law
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