Employment lawyers in Ontario regularly assist both employees and employers with a wide range of human rights (discrimination) claims in the workplace context. While “discrimination” is a term that is widely used in society, not many people know the legal basis for making (and being able to succeed) in such claims.
What is Workplace “Discrimination”
In Canadian human rights law, discrimination means as an unfair distinction (whether intentional or not) based on grounds relating to a person’s human characteristics (such as their age, disability or gender) that has effect of imposing burdens, obligations or disadvantages that other people not experience. The unfair part of discrimination is that it often leads to a person being deprived from enjoying full opportunities, benefits or advantages that are otherwise available to other members of society who do not have that same personal characteristic.
What is Ontario Discrimination Law?
So important is protecting society from discrimination that is found in several different law:
– Canadian Constitution
The Canadian Charter of Rights and Freedoms (“Charter“) protects every Canadian’s right to be treated equally under the law. The Charter guarantees broad equality rights (section 15) and other fundamental rights such as the freedom of expression, freedom of religion and freedom of assembly. However, it only applies to the laws or policies of the government or police – not to private individuals, businesses or other organizations. So, for example, this means the a person cannot rely on their constitutional rights to equality under the Charter to sue their employer for discrimination (unless the employer is acting on behalf of the government).
– Human Rights Legislation
For most people in Canada, the human rights law that is typically involved in discrimination claims is ordinary legislation (not the Constitution). Depending on the workplace context, an employee is protected from discrimination under either:
-
-
- Canadian Human Rights Act – which employees in Canada from discrimination when they are employed by or receive services private companies that are regulated by the federal government, such as banks, trucking companies, broadcasters and telecommunications companies; or
- Ontario Human Rights Code – which protects employees from discrimination in workplaces that are provincially regulated, such as restaurants and stores.
-
People can turn to either the Canadian Human Rights Act or the Human Rights Code to protect themselves from harassment or discrimination that is based one or more grounds of discrimination (see examples below).
What are Examples of Workplace Discrimination?
Under human rights law, there are many different grounds of discrimination:
- age
- disability
- race
- family status
- national or ethnic origin
- colour
- citizenship
- religion
- sex
- sexual orientation
- marital status
- family status
Employer’s Duty to Accommodate
Employers have a legal rule to adjust all workplace rules, policies or practices to enable employees to participate fully and meaningfully. This “Duty to Accommodate” applies to any needs/requirements that employees need to have met by the employer that relate to the grounds of discrimination.
The Duty to Accommodate means that it may sometimes be necessary for an employer to treat some employees differently in order to actually ensure they are treated equally compared with others in the workplace. For examples, requiring all employees to work weekends may not be fair to a person with children care-giving obligations. In such cases, the duty to accommodate may require that alternative arrangements be made to ensure that employees with child care-giving obligations (or other family responsibilities) can fully participate, such as a flexible work schedule or remote working arrangements.
However, it is important to note that the employer’s Duty to Accommodate only extends to the point it begins suffering “undue hardship”. In other words, there is a reasonable limit to how much effort an employer must make to accommodate an employees needs/requirements. For example, sometimes accommodation may not possible if it would create health or safety risks for other employees in the workplace. So, on that basis, an employer may be able to prove (with sufficient evidence) that it must keep what would otherwise appear to be discriminatory policies or practices in its workplace, even if they may have a negative effect on certain employees.
What Can Employees Do to Fight Workplace Discrimination?
There are several ways that a person can experience (and enforce their legal rights against) discrimination. Some examples are:
- A landlord has rules that make it unreasonably difficult for new immigrants to rent an apartment in her building, which can constitute discrimination based on two grounds — race and national or ethnic origin.
- A person of colour is pulled over by police while driving his car simply because of the colour of his skin, which can constitute discrimination based on the ground of colour.
- An employer prohibits employees from taking more than three days off work without recognizing that some employees have a health issue that requires accommodation, which can constitute discrimination based on the ground of disability.
- An employer’s decision to restructure its workforce by replacing employees older than fifty-five with younger employees in their twenties, which may be a case of discrimination based on the ground of age.
- A female employee with an excellent performance record announces that she is pregnant and, immediately after, her employer begins to identify bonus performance issues that lead to her termination of employment. This may be a case of discrimination based on the ground of sex.
- After having a child, a female employee cannot find childcare to continue working overnight shifts, and her employer refuses to accommodate her by providing a flexible work schedule. This may be a case of discrimination based on the ground of family status.
In such cases, an employee may be able to pursue a human rights (discrimination) claim in either the Human Rights Tribunal of Ontario or the Canadian Human Rights Commission.
Contact Bune Law
If you are an employer, you should speak with an employment lawyer to discuss your options before making the decision to terminate employment and obtain the proper termination documentation for your employee to avoid a discrimination claim.
If you are an employee who has been terminated from your employment, it is important to seek legal advice to determine if your termination of your employment was discriminatory or a wrongful dismissal.
No matter which side you are on, our employment lawyer is ready to assist with your case. Please feel free to reach out to Bune Law at 647-822-5492.
Disclaimer: The content on this website and blog is not legal advice or legal opinion of any kind, and is only general information. It is in no way particular to your individual case and should not be relied upon in any way. The outcome of a legal matter depends on its unique circumstances, and prior successes are not indicative of future results. No portion or use of this website or blog will establish a lawyer-client relationship with the author, this law firm or any related party. Should you require legal advice for your particular situation, please fill out the form below, or call 647-822-5492, to request an initial consultation.