Ontario Discrimination Law for Employees
All employees in Ontario are protected from negative treatment by their employers by human rights law (i.e., discrimination). Depending on the type of company they work for, they are protected by a separate form of human rights law:
- Human Rights Code – protects employees who work for a company that is regulated by provincial law; or
- Canadian Human Rights Act – protects employees who work for a company that is regulated by federal law (e.g., banks, airlines, etc.).
Of course, protections under the law do not automatically guarantee all employees will never experience discrimination. This reality is the reason why there are courts or tribunals that exist that allow employees to enforce their rights when they feel they were discriminated against by their employer.
What is “Discrimination”?
- age
- race
- disability
- colour
- ancestry
- sex (pregnancy and maternity)
- marital status
- place of origin
- family status
- citizenship
- ethnic origin
- sexual orientation
- gender identity
The focus of this blog is to discuss one particular form of unfair and different treatment under human rights law – age discrimination.
What are the Types of Age Discrimination?
There are a few main types of discrimination based on a person’s age (sometimes referred to as “ageism”):
1. Direct Discrimination
Direct discrimination occurs when individuals or organizations specifically exclude people, withhold benefits that are available to others, or subject them to extra burdens that are not imposed on others, without a legitimate (“bona fide“) explanation. This type of discrimination is often based on negative attitudes, stereotypes and bias about people based on their personal characteristics, such as their age, race, sex or disability.
2. Indirect (Adverse Effect) Discrimination
Indirect discrimination occurs when a rule, policy or practice that appears to apply to everyone in the same way actually has a worse effect on some people compared to others. In other words, sometimes seemingly neutral rules, standards, policies, practices or requirements have an “adverse effect” on people with certain personal characteristics. For example, a university can be found to have indirectly discriminated against students by requiring its admissions team to recruit students of a particular sex or racial background.
What is Age Discrimination?
As with any form of discrimination, age discrimination refers to situations where an employer treats an employee differently because of their age. This unfair treatment could be a one-time, random act, or as a result of a rule or policy based on age. However, the key point is that discrimination does not have to be intentional to be unlawful.
Generally, human rights law says employees must not be discriminated against because:
- they are (or are not) a certain age or in a certain age group
- someone thinks they are (or are not) a specific age or age group (known as perceived discrimination)
- they are connected to someone of a specific age or age group (known as discrimination by association, relationship or dealings).
The Ontario Human Rights Code protects people from discrimination under the ground of “age,” which is defined as 18 years or older.
What are Examples of Age Discrimination?
Employers sometimes target older workers based on the stereotype or perception that they are incapable of performing well in their job because of their age, such as assuming they are “too young,” or close to retirement. Some of the more common methods of age discrimination include denying job-related benefits, hiring or recruitment, harassment, heavy workloads, temporary layoffs or termination of employment. Put simply, employers cannot:
- refuse to hire, train or promote people because of their age
- unfairly target older workers when it comes to reducing staff or reorganizing (such as placing them on a temporary layoff because they are the oldest employees)
- fail to ensure their workplace is free from discrimination, is not inclusive and and does not respect or support the needs of all its workers, including older employees.
How do you Enforce Your Human Rights?
If an non-unionized employee wants to take legal steps to challenge an incident of discrimination involving an employer, they can bring a discrimination complaint either in court or the human rights tribunal.
For employees who work for a provincially-regulated employer, a discrimination complaint can be made to the Human Rights Tribunal of Ontario or a court under the Ontario Human Rights Code. For employees who work for a federally-regulated employer, a discrimination complaint can be made to the Canadian Human Rights Commission or a court under the Canadian Human Rights Act.
It is also important to note that while employees have the right to equal treatment and opportunities and not be discriminated in the workplace, not all unfair treatment will constitute discrimination. Most importantly, the unfair treatment must have been based on a ground and in an area covered by human rights law (e.g., age, race or disability).
Contact Employment Lawyer
No matter which side you happen to be on – an employee who was recently terminated from your employment because of their older age, or an employer who is unsure how to manage a workplace restructuring or temporary layoffs – please contact Bune Law at 647-822-5492 for guidance from an experienced employment lawyer.
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