Discrimination in the Workplace: When it’s Prohibited and When it’s Permitted

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Discrimination occurs when prohibited grounds are used against selected populations to perpetrate human rights violations. Scenarios for workplace discrimination vary greatly and may include such actions as denying persons of the discriminated group the opportunity for employment, removing standard entitlements such as overtime pay, or harassing persons who belong to the selected population.

Prohibited Grounds for Discrimination

In Ontario, the Human Rights Code (the “Code“) contains provisions for protecting employees from discrimination and harassment in the workplace. The Code outlines the prohibited grounds for discrimination:

  • ancestry, family status, religion;
  • place of origin, citizenship;
  • ethnic origin, colour, race;
  • sex, age, handicap;
  • sexual orientation, marital status; and,
  • record of offences.

The Code also protects employees from sexual solicitation and reprisals if the solicitation is:

  • rejected by the recipient;
  • made by persons in a position of authority; or,
  • made by a person who knows, or reasonably ought to have known, that such solicitation is unwelcome.

The Code applies to employers and agents of the employer, employees, co-workers, contractors and even volunteers. Acts and omissions that occur due to any of the prohibited grounds for discrimination could result in the employer as well as the perpetrator of the discrimination being in breach of the Code.

Situations in Which Discrimination Is Permitted

In some cases, discrimination based on the above-mentioned grounds may be permissible where there is a bona fide occupational requirement (“BFOR”) for particular characteristics. Such discrimination will not be in violation of the Code if the employer can prove that the prohibited ground for discrimination is a genuine occupational requirement, and that failure to meet such a requirement cannot be reasonably accommodated. A BFOR is usually required to ensure the safety of the worker, co-workers and the public.

Federal Jurisdiction: The Canadian Human Rights Commission

Workers for employers who fall under federal jurisdiction are also protected by human rights legislation in accordance with the Canadian Human Rights Act (“CHRA“) and the Employment Equity Act (“EAA”). The Canadian Human Rights Commission (the “Commission) ensures that both equal opportunity and non-discrimination occur in all areas under federal jurisdiction.

According to the CHRA, employment-based complaints of discrimination within federal jurisdiction are to be investigated and settled through dispute resolution services provided by the CHRC. If the CHRC cannot settle the matter, the individual may ask the Canadian Human Rights Tribunal to hear the complaint.

The CHRC is responsible for ensuring that all federally regulated employers provide equal opportunities for employment to:

  • individuals with disabilities;
  • women;
  • visible minorities; and,
  • Aboriginals.

Process for Fighting Human Rights Violations

If an employer in Ontario has violated any part of the Code, the employee may apply for relief to the Ontario Human Rights Tribunal. However, strict limitation periods apply to the time until which complaints can be made to the Ontario Human Rights Tribunal following the discrimination.

In 2008, the process in Ontario for filing complaints with the OHRC became more tightly regulated under Bill 107.

For related case studies and more information on Discrimination in the Workplace, search our blog.

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