Human Rights Series

Discrimination at the Workplace - Introduction

Every Canadian person can and should expect equal treatment without discrimination based on certain protected grounds at the workplace.

The next blog series will be about these rights. Some of the protected grounds will be explored in greater detail in the coming weeks. First, basics on human rights protection.

Protection is only on the Protected Grounds

The right to equal treatment at the workplace is so fundamental that each Canadian jurisdiction has laws specific to protect this. This protection extends only to the list of protected grounds in the legislation. Beyond the list, discrimination is allowed.

In Ontario, the protected grounds are:

racecreedage
ancestrysexrecord of offences
place of originsexual orientationmarital status
colorgender identityfamily status
ethnic origingender expressiondisability
citizenship

The list protected grounds is similar from jurisdiction to jurisdiction, but there are minor differences. Take Alberta for example. Unlike in Ontario, record of offences is not a protected ground in Alberta. As well, Alberta laws make a distinction between physical and mental disability. Finally, the term “family status” means something different in Alberta than it does in Ontario.

Depending on where your employment is based, ensure you are referring to the correct laws.

In all cases, the legal protection extends to every aspect of your workplace.

This includes

  • the decision to hire someone or not
  • the decision to fire someone or not
  • questions that may be asked during a job interview
  • whether to promote or demote an individual
  • the level of pay or bonus awarded
  • application of employee policies or manuals
  • and others

Where you as the employee have been subjected to differential treatment, or denied equal treatment, regarding your employment based on one or more of the protected ground, there may be a violation to your human rights. That would be the case even if the discrimination is unintentional.

Exceptions - Bona Fide Occupational Requirements

Like every legal right, the right to equal treatment is not absolute. There are qualifiers to human rights laws. Just because you have been treated differently does not automatically mean your employer has violated human rights laws. There may be good reason for the different treatment.

One reason is the different treatment is a result of a legitimate job requirement.

For example, an employer requires that a specific language skill to be considered for promotion into a particular role.

Or, a hospital hires only those with the required medical degrees and certificates to be doctors, or school board hiring based on faith and religious beliefs.

Or, certain health and physical attributes are required to pertain job functions, excluding candidates with physical impairments.

In these examples, the employer is discriminating based on a bona fide occupational qualification, and that may be permitted. The employer will have to prove that the occupational requirement is in fact legitimate, or bona fide.

Accommodation

The employer's duty

Employers have the duty to reasonably accommodate those with different needs or solutions because of their protected ground. The duty to accommodate goes to the point where accommodation is not possible or cannot be continued.

Accommodation can come in different forms, and is different for each case depending on the circumstances. Accommodation is likely different for two different individuals even if the protected ground is the same.

The point of accommodation is so that you would have, as much as possible, equal access to what others at your workplace have.The right to be accommodated is not boundless. The right is simply to “equal treatment”. That means, typically speaking, what the rest of the crew gets, you should also get, no more, and no less.


The employee has to communicate

As the employee requiring accommodation, you have the corresponding obligation to first ask for the accommodation. Otherwise, the employer only knows what it knows, and cannot be expected to meet its duty to accommodate when it is legitimately unaware of the need in the first place.

You may have to provide certain limited information such as to explain why you need the accommodation, what specifically your needs are, and how long you need it for. You should not have to disclose unnecessary information in order to be accommodated.

If your employer offers reasonable solutions to try and accommodate your needs, you are obligated to accept. If the proposed solution is not suitable, you should explore other options with your employer, or discuss how your current accommodation needs to be adjusted.

Accommodation should be treated as an ongoing process that you need to actively participate in. Good and effective communication is key, and is required both on the employer side and the employee side.


Undue Hardship

Accommodation is not without limits. If, in order to accommodate you, the employer would suffer costs, harm, health and safety risks, or other types of unjustifiable consequence, the employer may be able to prove undue hardship, and be off the hook for accommodation.

It is not easy to prove undue hardship. If proven, the differential treatment on the protected ground may not violate human rights laws.

Human Rights Claims

Where do you go if any of the above has not been met?

Each province or jurisdiction has a human rights support centre or commission to lend help. This can be a good resource to help you understand the human rights legal regime applicable to you.

Talk to your employment lawyer to discuss whether you have a human rights claim against your employer. If so, your lawyer may help you file a human rights claim against your employer.

If you have a valid human rights claim and are successful, what can you expect from it?

  1. Corrective measures at your workplace or reinstatement to your job (if you have lost it) should be an option.
  2. Other possible consequences include monetary payments from the employer to compensate any loss you may have experienced. This may include loss of wages, income, or opportunity. This may also include damages to compensate for injured feelings and aggravation you have suffered.
  3. In appropriate circumstances, your employer will be asked to arrange or partake in human rights training at the workplace to prevent similar violations from recurring.

Your employment lawyer will talk to you about the kind of information or evidence you will need to provide. This may include a detailed account by you on any event that has occurred, medical documentation, financial records, employment records, and such other related information.

Next

Equal treatment at the workplace is fundamental. This at times is not respected in certain work environments. The good news is there are measures and avenues to correct this. The key is to be proactive, and always communicate well. It can go a long way in pre-empting issues that may otherwise go out of hand.

Next in the series, we will discuss family status as the protected ground.


For other articles in the Human Rights Series:

Disability at the Workplace

Family v. Work - The Family Status Protection