Am I being discriminated against at work?

Canadian law protects workers from being treated differently based on certain prohibited grounds of discrimination. The prohibited grounds are set out in human rights legislation, such as the Canadian Human Rights Act and the Ontario Human Rights Code. They include race, ethnic origin, religion, sex, sexual orientation, disability, and family status, among others. The Ontario Code also provides explicit protection on the basis of gender identity and gender expression.

The following provides answers to some common questions about discrimination in the workplace. Questions about your particular circumstances should be reviewed with a lawyer experienced in employment and human rights matters.

How do I know if my employer is discriminating against me based on a prohibited ground?

It is sometimes easy to draw a link between an employer’s actions and a prohibited ground of discrimination. A policy refusing to hire workers of a particular nationality, for instance, is plainly discriminatory. But discrimination is rarely this blatant or obvious. More often we have to look at other evidence to determine whether discrimination is taking place, such as whether an employer applies its rules differently to individuals based on prohibited ground.

Differential treatment based on other factors can also be discriminatory if it has a disproportionate impact on individuals who share a characteristic protected by a prohibited ground. As noted below, workplace rules that appear to be neutral on their face can, nonetheless, be discriminatory. Drawing this link would require evidence that the employer’s conduct would have a disproportionate impact on an individual or group of individuals based on prohibited ground.

What if my employer claims its actions were based on something other than a prohibited ground?

Employers often claim that there were other, non-discriminatory reasons that justify their actions, such as a decision to terminate an employee. The law in Canada, however, is clear: discrimination has taken place so long as a prohibited ground is one of the factors behind the employer’s decision. For example, if there is evidence that an employer fired an employee in part because they were uncomfortable with her same-sex relationship, it is no defence to say that the employee also had performance issues.

Does it matter if my employer did not intend to discriminate against me?

It is not necessary that an employer intend to discriminate against an individual or group for the behaviour to be discriminatory. Workplace rules and policies that appear to be neutral can have unintended or disproportionate impact on particular groups. Some examples based on previous decisions include:

• A workplace rule that requires all employees to rotate through Saturday shifts may discriminate against certain religious groups.
• A seemingly objective fitness standard may discriminate if it disproportionately excludes women.
• A requirement that all employees perform a particular task may discriminate against an individual whose disability prevents them from doing so.

This is because the purpose of human rights legislation is not to lay blame but to eradicate discrimination.

My manager and co-workers are making offensive comments. Does it matter if they say they are joking?

Human rights legislation protects against harassment based on a prohibited ground. This includes a course of conduct or comments that someone knows are unwelcome, or ought reasonably to know are unwelcome. Whether jokes constitute harassment will depend on the circumstances, but the fact that someone says they were just joking is not an excuse.

Does my employer have to make changes in the workplace to accommodate my needs?

Human rights law also requires employers to take steps to ensure that all employees can participate fully in the workplace despite any limitations they may have that are linked to a prohibited ground. Human rights tribunals and courts have required employers to make physical changes to workplaces to accommodate an employee’s mobility issues. They have also required employers to provide employees with a shift schedule that accommodates their family obligations. Whether or not your employer must accommodate you in such a manner will depend on your particular situation. (Click here to read more about the employer’s duty to accommodate.)

Can an employer ever justify discriminatory conduct?

In certain circumstances an employer can justify a rule or policy that has a discriminatory impact on employees. For instance, an employer can try to prove that it requires a particular rule that has a discriminatory impact, or that it has done as much as it can to accommodate an employee. The test, however, is high, and requires an employer to demonstrate that it cannot accommodate further without suffering “undue hardship”.

We are here to help: Consult one of our experienced human rights lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a complaint of discrimination against your employer.