While not an employment law issue, the case in last night’s episode of Boston Legal involving the Sorority kicking out a member is an interesting one to apply to the employment context. In the case Clarence takes on a client who has been kicked out of a sorority because she is socially awkward. Winning argument goes to lawyer, Jerry Espenson, who has Asperger’s syndrome and uses his own disability to make the argument that the education gained by realizing that even nice people are mean is worth getting kicked out of the club. While that may be true in some way, it is not really the issue. The issue, and one that many of my students grapple with, is that not every form of discrimination is protected. In Ontario, the Human Rights Code provides that:
"Every person has a right to equal treatment with respect to employment without
discrimination because of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation, age, record of offences,
marital status, family status or disability. "
For the young lady in the show, there was no evidence that she was kicked out because of a disability or any other ground protected in the Code. If there is no basis for her discrimination lawsuit, then she is not going to win.
One should note that there are employment agreements which prohibit all forms of discrimination. Collective agreements, or employer policies which may become part of the employment contract, sometimes prohibit discrimination without any qualifiers. This is generally a difficult task to accomplish since discrimination in the sense of distinguishing between people must occur all the time.
The other issue that is raised in that case which can be applied in an employment context is that of recruitment. The young lady representing the sorority speaks frankly, albeit quite glibly, about the nature of the club and who they are recruiting. They want attractive, socially outgoing women who resemble themselves. This is often a recruitment strategy that is used. Malcolm Gladwell has written an excellent article on this topic relating to admissions into the Ivy League Universities: http://www.gladwell.com/2005/2005_10_10_a_admissions.html .