Discrimination and Reprisal: Key Lessons from Recent Caselaw
** Written by Zura Nakiwoga, Articling Student at Lee Workplace Law
In a diverse workplace, understanding and adhering to the Ontario Human Rights Code (OHRC) is crucial for employers, employees, and HR professionals. The OHRC provides protections against discrimination and reprisal, promoting equity in the workplace.
In today's blog post, we provide an overview of what discrimination and reprisal mean, before delving into some recent caselaw on the topic.
Understanding Discrimination and Reprisal under OHRC:
Discrimination:
According to the OHRC, discrimination occurs when an individual is treated unfairly due to a protected characteristic. The key term is "protected characteristic", as the basis of the alleged discrimination must be one that is explicitly listed in the OHRC to amount to discrimination at law in Ontario.
The protected characteristics include: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
To establish a prima facie case of discrimination, the following must be demonstrated[1]:
1. The individual possesses a characteristic protected under the OHRC.
2. They experienced adverse treatment in an OHRC-regulated activity, such as employment.
3. The protected characteristic was a factor in the adverse treatment.
Reprisal:
Reprisal is also prohibited under the OHRC. Reprisal involves retaliation against an individual for asserting their rights under the OHRC. Section 8 of the OHRC provides that every person has a right to claim and enforce their rights under the OHRC, to institute and participate in proceedings under the OHRC, and to refuse to infringe a right of another person under the OHRC, without reprisal or threat of reprisal for so doing.
The essential criteria to establish a case of reprisal include[2]:
1. An action taken against, or a threat made to, the individual.
2. The action or threat is related to the individual having claimed or attempted to enforce an OHRC right.
3. There is an intention to retaliate by the respondent.
Application to Real Life:
Two recent cases provide practical insights into how these rights are applied and interpreted in real-world scenarios.
Knauff v. Ontario (Natural Resources and Forestry), 2023 HRTO 1729 (CanLII):
Background:
Adam Knauff, a Ministry of Natural Resources and Forestry (MNFR) crew leader and an ethical vegan since 1998, faced consistent issues with meal accommodations during deployments. The issue is that he was deployed from time to time to different locations where he relied on meal provisions at the lodges. He informed the Ministry about his veganism when he joined, but had been given inconsistent meal accommodations.
In 2017, he was deployed to Williams Lake, BC, and there were issues once again. The provided meals lacked vegan standards and essential nutrients, and whatever limited options there were, often others got to the food and finished them before he could even eat. He was, as a result, forced to subsist on inadequate provisions like fruits and nuts. This inadequate nutrition allegedly impacted his health and ability to perform his duties.
For example, as Crew Leader, he needed to make critical, on-the-spot decisions during emergency situations such as an emergency fire. Unfortunately, his ability to do so had been impaired due to chronic malnutrition. Naturally, this raised safety concerns.
He brought a claim to the Ontario Human Rights Tribunal (HRTO) against the MNFR. He alleged discrimination based on creed, arguing that the MNRF failed to accommodate his dietary needs as an ethical vegan, which he claimed was a core component of his creed.
Litigation:
A preliminary hearing focused on whether ethical veganism constitutes a creed under the OHRC. The HRTO considered the following criteria:
- The belief must be sincerely, freely, and deeply held.
- It must be integrally linked to one's identity.
- t must address ultimate questions of human existence.
- It should have some connection to an organization or community that professes a shared system of belief.
The tribunal concluded that while ethical veganism meets the criteria of being sincerely held and integral to Mr. Knauff's identity, it failed to address the existence of a Creator or a higher order of existence, crucial elements for qualifying as a creed under the OHRC.
Outcome:
The HRTO ruled that ethical veganism does not qualify as a creed, dismissing the discrimination and reprisal claims due to lack of jurisdiction.
This case helps us understand how to even begin processing a claim of discrimination. In the face of a claim, this analysis set out in this decision may serve as a framework in assessing whether the claim is one that has legal protection under the OHRC, and if so, how such a claim may be treated by an adjudicator.
Leason v. ADAMANDA INC. o/a Dairy Queen Grill and Chill, Huntsville, 2023 HRTO 1652 (CanLII):
Background:
Ms. Leason worked at Dairy Queen under the management of her cousin. The relevant facts are as follows:
- In April 2017, Ms. Leason fainted and suffered a concussion at work, missed work for a few days, then failed to return to work when scheduled. As a result, Ms. Leason was removed from work schedule.
- In December 2017, the employer asked Ms. Leason to return to work; Ms. Leason agreed and returned and continued to work until March 1, 2018.
- On March 1, 2018, Ms. Leason asked to attend a medical appointment. The employer approved, but asked her to attend during her break, which she did.
- Ms. Leason did not return to work afterward, failing to communicate further with her employer.
- On March 2, 2018, upon inquiry from the employer, she resigned. Her reasons were poor treatment by management (her cousin and manager), exacerbating her existing health issues, including depression diagnosed in 2008 and her prior concussion.
- Also, Ms. Leason was explicitly uninvited from a birthday party for her cousin and manager, an act she perceived as negative treatment.
- Ms. Leason filed a complaint to the HRTO alleging discrimination.
Litigation Insights:
Ms. Leason's allegations centered around inadequate accommodation for her concussion and perceived reprisals for requesting time off. The tribunal scrutinized her engagement in the accommodation process and found:
- Medical Documentation: Ms. Leason provided some medical notes; however, they were not sufficiently detailed to substantiate her specific needs or limitations, making it difficult for her employer to implement appropriate accommodations.
- Accommodation Requests: She communicated her initial need for accommodation, but failed to follow through with detailed information or updates that could facilitate effective responses from her employer.
- Communication Issues: There was a lack of ongoing, detailed communication about her condition, crucial for the collaborative nature of the accommodation process.
Outcome:
Unlike in the previous case, here Ms. Leason's claim is grounded in the OHRC. Her concussion and depression fell under the protected ground of disability. That being said, the tribunal found no substantial evidence of discrimination or failure to accommodate according to the OHRC. Factors contributing to this decision included Ms. Leason's failure to provide necessary documentation and to communicate effectively her accommodation needs. Further, personal issues, such as her cousin uninviting her to a birthday party, were found to be familial in nature, not discrimination contrary to the OHRC.
Once again, this decision provides guidance on how to address a potential discrimination claim where the protected ground is enumerated in the OHRC. The fact that there is a prima facie basis for a claim is not the end of the inquiry. Relevant legal tests must still be considered in order to arrive at a fulsome assessment of whether alleged conduct amounts to discrimination, or not.
Conclusion
These cases underscore the importance for both employers and employees to thoroughly understand their rights and obligations under the OHRC. First, it is important for employers and employees alike to understand exactly what rights are protected under the OHRC. If a right is protected, it is important for both parties to participate, in good faith, in the accommodation process. Proper documentation and adherence to protocols are crucial in ensuring that all parties uphold their legal responsibilities and work towards fair resolutions. This collaborative approach fosters a respectful and inclusive workplace environment, benefiting all involved.
[1] Rougoor v. Goodlife Fitness Centres Inc., 2024 HRTO 312 (CanLII)
[2] Noble v. York University, 2010 HRTO 878
