Human Rights Violations & Discrimination

Canada protects and advances the concept of universal human rights. The Canadian Charter of Rights and Freedoms (the “Charter”) protects equality rights in dealings with governments. In the workplace, Ontario’s Human Rights Code governs human rights for most employers in Ontario, and the Canadian Human Rights Act applies to federally regulated employers such as banks and telecommunications companies. The Canadian Human Rights Commission, provincial statutes and administrative tribunals are just some of the ways human rights are upheld in Canada.

Law Wise employment lawyers approach human rights violations with logical and creative solutions. Our lawyers are professional, friendly, and determined. We have the know-how to guide you through a human rights violation claim.

What is Discrimination?

Unlawful discrimination happens where a person (or group of persons) is treated differently than they would be otherwise, based on one or more of the protected grounds identified in the human rights legislation.

Human rights legislation prohibits employers from adopting, or unintentionally using, discriminatory hiring and dismissal/termination practices and workplace policies. A workplace rule or policy that has a discriminatory effect is allowed only if the employer can show that it is a reasonable and genuine job requirement and that the affected employee cannot be accommodated without “undue hardship” to the employer. Federally regulated employers may also have duties under employment equity legislation.

An example of adverse effect discrimination (also called constructive discrimination):

Scheduling against a person’s religious holiday, such as having mandatory rotating shifts on Friday and Saturday, even though some employees observe the Sabbath on Saturday. Human rights legislation also imposes many duties on employers, such as the duty to accommodate employees with disabilities to the point of undue hardship.

Common Protected Grounds

The common protected grounds in employment are set out in Ontario’s Human Rights Code: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status and disability. The Canadian Human Rights Act, which applies to federally regulated workplaces, protects a similar list of grounds, including national or ethnic origin, religion and genetic characteristics.

Employment As a Protected Area

Employment is a protected social area. It is therefore important for employers to implement non-discriminatory workplace policies to prevent unlawful discrimination and harassment in the workplace. This ensures that employees enjoy equal treatment in every aspect of the work environment and employment relationship.

Equal treatment is required in recruitment and applications, training, volunteering, interning, promotions, layoffs, dismissals/terminations, wages, hours worked, benefits, disability and the duty to accommodate, discipline and performance reviews, holidays, harassment investigations and policy development and reviews. It also extends to workplace events that occur outside regular business hours or off workplace premises.

Workplace human rights violations throughout Canada are of significant concern and normally fall within the jurisdiction of administrative human rights tribunals such as the Human Rights Tribunal of Ontario or, at the federal level, the Canadian Human Rights Tribunal. Ontario courts can also award human rights remedies, but only where the human rights claim is made together with another claim, such as wrongful dismissal. A person generally cannot pursue the same human rights claim in both places.

The prohibition on workplace human rights violations and discriminatory harassment applies not only to the employer but to anyone in the workplace. Human rights discrimination regarding the rate of pay, overtime, working hours, holidays, benefits, layoffs, dismissal/termination, discipline, and performance is also prohibited under the Human Rights Code, as employees have the right to equal treatment with respect to employment. Normally, an employer can justify differential treatment only if it is a bona fide occupational requirement and accommodating the employee would result in “undue hardship.”

Discrimination Based on Family Status

Under Ontario’s Human Rights Code, family status means being in a parent and child relationship. Family status protects a range of families and familial relationships from discrimination while recognizing that families are becoming increasingly diverse. Discrimination because of a spousal relationship is covered by a separate protected ground, marital status. Family status discrimination can appear when a person is discriminated against based on:

∎ The identity of a particular family member

∎ Being a parent or having children

∎ Being an adoptive parent, foster parent or step-parent

∎ Caring for an aging parent as an adult child

The inclusion of childcare obligations within the definition of family status has been adopted across Canada. Family status protects non-biological parent and child relationships, which may be formed through adoption, fostering and step-parenting, in addition to lone parent families and those headed by LGBT persons. Courts and tribunals have set out various accommodation tests when it comes to childcare. In a leading 2016 decision, the Human Rights Tribunal of Ontario held that the test for family status discrimination is the same as for any other protected ground. Where childcare obligations are engaged, an employee will have to be able to show that:

∎ A workplace rule or decision has a negative effect on a family need.

∎ The negative effect is a real disadvantage to the relationship between the parent and child and the responsibilities flowing from that relationship, and/or to the employee’s work.

Federal courts and some other decision-makers apply a different, four-part test, so the approach can depend on where a claim is heard. Eldercare responsibilities have also been held to be a foundation for a family status claim of discrimination. If an employee is a primary caregiver for a parent, the employee may be able to make a claim of family status discrimination.

Pay Equity

Besides the human rights legislation in Canada, Ontario has two sets of rules on pay differences between men and women. The Pay Equity Act requires public sector employers, and private sector employers with 10 or more employees, to provide equal pay for work of equal value, so pay equity violations can arise even where the jobs being compared are different. Separately, under the Employment Standards Act, 2000, an employer has to provide equal pay for work that is substantially the same, requires substantially the same skill, effort, and responsibility and is performed under similar working conditions in the same establishment (which can include separate locations of the same employer in the same municipality). An employer may not lower an employee’s rate of pay to create equal pay for equal work.

However, there are several exceptions to the equal pay for equal work rule, which is sometimes confused with pay equity. These exceptions include a seniority system, a merit system, a system that measures earnings by quantity or quality of production, and any other factor other than sex.

Representing Employers

We understand the importance of developing non-discriminatory workplace policies to avoid issues such as complaints of harassment and discrimination.

Our employment lawyers are also able to defend your legal position and reputation, should problems arise such as an employee claiming they were a victim of human rights discrimination, regardless of whether it occurred during the hiring stage, employment, or in relation to a dismissal/termination.

We approach these issues with logical and creative solutions. Whether your company needs to take proactive steps in implementing workplace policies or to defend against discrimination allegations in a legal proceeding, we can help.

Representing Employees

If you believe your human rights were violated in the workplace, or if you need legal advice regarding family status discrimination, contact Law Wise employment lawyers today to discuss your options. An application to the Human Rights Tribunal of Ontario generally has to be filed within one year of the incident, or of the last incident in a series, so it is best to get advice early.

Everyone deserves equal respect and freedom from human rights discrimination. If you believe your human rights were violated in the workplace, contact Law Wise today and speak with one of our experienced lawyers to discuss your options. We will help assess whether there are grounds for a complaint and assist you throughout the process of making a complaint and enforcing your rights.

Call us at +1 647 948 7819 today!