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

Protection from Discrimination in Workplace

What is Discrimination in the Workplace?

Discrimination occurs when an individual or groups are treated unfairly or unequally based on certain characteristics – including religion, ethnicity, sex, age, family status and sexual orientation. Scenarios for workplace discrimination vary greatly and may include situations where individuals are denied the opportunity for employment or promotions, denied equal pay for equal work, denied entitlements such as overtime pay, or are harassed based on certain characteristics. To ensure fair treatment of all employees, certain characteristics have been protected to ensure that discrimination and harassment on the basis of these characteristics is illegal. This is referred to as the “prohibited grounds of discrimination”.

Human Rights Legislation – Ontario & Federal Jurisdictions

In Ontario, the Human Rights Code (the “Code“) contains provisions for protecting employees from discrimination and harassment in the workplace. The Human Rights Tribunal hears cases to determine whether an individual’s rights under the Code have been violated.

Workers for employers who fall under federal jurisdiction are 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 ensures that both equal opportunity and non-discrimination occur in all areas under federal jurisdiction.

Prohibited Grounds for Discrimination

The Code and the CHRA outline the following prohibited grounds for discrimination in employment:

  • Age;
  • Ancestry;
  • Citizenship;
  • Colour;
  • Creed;
  • Conviction of an offence for which a pardon has been granted or in respect of which a record suspension has been ordered;
  • Disability (including previous or existing mental or physical disability, disfigurement, previous or existing dependence on alcohol or a drug);
  • Ethnic origin;
  • Family status;
  • Gender expression;
  • Gender identity;
  • Genetic characteristics;
  • Marital status (including single status);
  • Place of origin;
  • Race;
  • Record of offences;
  • Religion;
  • Sex (including pregnancy, child-birth, breastfeeding); and,
  • Sexual orientation.

The Code and the CHRA also protect employees from harassment and sexual harassment on the basis of these prohibited grounds. Retaliation, threatened retaliation or reprisals against an individual or group who are trying to protect their rights is illegal.

The Code further protects employees from sexual solicitation and reprisals where the solicitation is:

  • made by a person in a position to confer, grant or deny a benefit or advancement; and,
  • the person making the solicitation or advance knows or ought reasonably to know 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.

Employer’s Duty to Accommodate

Employees may have special needs related to illness, disability, or various circumstances that fall under the prohibited grounds for discrimination, such as a person’s sex, age, family status, creed or other human rights factors. Employers have the duty to accommodate such employees by making the workplace more accessible and suitable for the employee.

Employers who do not fulfill their duty to make reasonable accommodations for an employee requiring assistance based on a protected ground may be found to have violated the employee’s human rights. The employee may also have grounds for claiming constructive dismissal as a result of the lack of appropriate accommodation from the employer.

How Far Must an Employer Accommodate?

The duty to accommodate obligates the employer to first make reasonable efforts to determine whether the workplace can be altered and if so, to modify the workplace so that it is more suitable for the employee’s needs in relation to the protected ground, thereby allowing the employee to properly carry out their work duties.

This duty to accommodate stops short of forcing the employer to experience “undue hardship”. Undue hardship generally involves excessive interference with a business’ operation, or situations where the employee is unable to work despite the employer’s efforts to accommodate. What constitutes undue hardship varies based on the circumstances surrounding each individual case.

Is the Employee Entitled to a Perfect Solution?

The duty to accommodate does not, however, carry with it an expectation of perfection. Instead, the employer must make “reasonable” accommodations even if these fall short of a perfect solution for the employee.

The employee also has a corresponding duty to make it possible for reasonable accommodations to be implemented by the employer. If the accommodation fails due to the employee’s refusal to cooperate with the employer’s reasonable efforts to accommodate, then the employer’s duty to accommodate is discharged.

Situations in Which Differential Treatment May Be Permitted

In some cases, differential treatment based on the above-mentioned grounds may be permissible where there is a bona fide occupational requirement (“BFOR”) and or bona fide occupational qualifications (“BFOQ”) for particular characteristics. A BFOR or BFOQ is usually required to ensure the safety of the worker, co-workers and the public.  Differential treatment will not be illegal if the employer can prove that the prohibited ground for discrimination is a genuine occupational requirement and that failure to meet such a requirement will cause harm to the worker, co-workers and or the public.

Is Termination an Option if Accommodation Fails?

In some cases, even reasonable efforts to accommodate an employee fail, and the employee is unable to work despite the accommodation efforts. Any further accommodation may lead to undue hardship for the employer, resulting in excessive interference with a business’ operation.

In such cases, an employer’s duty to accommodate an employee does not prohibit the employer from terminating an employee for being unable to perform their essential work duties, providing these work duties are BFOR and BFOQ. In those circumstances, termination of the employee would not be deemed discriminatory or a failure of the employer to accommodate the employee.

Determining When Discriminatory Standards are Legitimate

The leading case of British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance) [1999] 3 S.C.R. 3 provided a 3-point common law test to determine whether a discriminatory standard is a bona fide occupational requirement.

First, the standard must be rationally connected to performing the job. Oftentimes, this connection involves the ability to work safely and efficiently. However, whatever the reason, the employer must demonstrate that the general purpose for having the standard itself is valid.

Second, the standard was made in an honest and good faith belief, without the intention to discriminate against an employee. Notably, even a reasonable standard could be disqualified from being considered a BFOR if motivated by discrimination.

Third, the standard must be reasonably necessary for the employer to accomplish its purpose, and it would be impossible to make accommodations without imposing undue hardship upon the employer.

In all cases, the standard must not be any higher than is necessary. Where a discriminatory standard meets these criteria, then limitations of an employer’s accommodation efforts and the resulting exclusion of certain classes of people would not amount to discrimination.

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.

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. Limitation periods apply with respect to the CHRA as well.

How We Help Employees

Our firm assists employees who feel that their rights have been violated through discrimination and harassment connected to a prohibited ground. Our firm will assess each situation and determine the appropriate course of action necessary to achieve a resolution, taking into consideration each employee’s unique needs and objectives. Our process includes the following steps:

  1. An initial telephone call with our trained staff members to obtain information and to schedule a consultation with one of our experienced Employment Lawyers;
  2. An in-depth consultation with one of our experienced Employment Lawyers to obtain additional facts about the situation and review key documents. The Lawyer will provide an initial assessment regarding the strengths and weaknesses of the case, as well as propose a recommended course of action; and,
  3. Once our team is retained, we will work to achieve a practical and cost effective resolution to the matter.

To assist our clients in making correct legal decisions to protect their rights we offer a number of fee arrangements for qualified cases. To find out more please contact our office to speak with one of our legal support staff and to book a consultation with an Employment Lawyer.

How We Help Employers

Our firm assists employers who are required to respond to requests for accommodation or allegations of discrimination and harassment by their workers. Our firm will assess each situation and work with the employer to determine the appropriate response to such requests or allegations. Our process includes the following steps:

  1. An initial telephone call with one of our experienced Employment Lawyer to learn the background and to determine whether our services can be provided, at which time an in-depth consultation is scheduled;
  2. An in-depth consultation with that Employment Lawyer to obtain additional facts about the situation and review key documents. The Lawyer will provide an initial assessment regarding the case, as well as propose a recommended course of action; and,
  3. Once our team is retained, we will work to achieve a practical and cost effective resolution to the matter.

From local start-ups to national companies with few or hundreds of employees, facing human rights legal challenges can be extremely challenging and very costly when are not dealt with proactively. To minimize our clients’ exposure to potential claims we offer a variety of cost-effective solutions ranging from fixed fee services to special corporate rates. To learn more please call us for a no obligation consultation with an Employment Lawyer.

Please note that the above is for general information purposes only. This information is not legal advice, nor should it be taken as legal advice. Do not rely on the information above as legal advice. Do not take or fail to take any action based on the above general information. For expert advice and advocacy regarding specific employment law issues, please contact Minken Employment Lawyers to set up a consultation with one of our employment lawyers.

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