Month: December 2019

This article will explore what constitutes workplace discrimination, the relevant human rights legislation, the prohibited grounds of discrimination, the legal test for establishing a “prima facie” case for discrimination and some defences that are available for respondents.

Workplace discrimination occurs when there has been unfair or unequal treatment of an individual or group on the basis of religion, ethnicity, age, sex, family status and/or sexual orientation.  In these instances, individuals can be denied employment outright or promotions based on the above grounds.  They can also be subject to unequal pay for equal work or denied entitlement for overtime pay.  In order to ensure equal treatment of all employees, human rights legislation has created “prohibited grounds of discrimination” to prevent discrimination and harassment.

In Canada, workers who fall under federal jurisdiction such as banks, telecommunications and airline employees are protected under the Canadian Human Rights Act (“CHRA”) and the Employment Equity Act (“EAA”).  It is the Canadian Human Rights Commission that enforced the Act and ensures non-discrimination and equal opportunity for federal employees.

In Ontario, it is the Human Rights Code that protects all other employees from harassment and discrimination.  The Human Rights Tribunal, a statutorily created body hears cases to determine if human rights based on Code grounds have been breached.  Employees have one year from the last occurring incident of discrimination to file an application to the Human Rights Tribunal. The exception to the one-year limitation rule is if the applicant can establish that the delay was in good faith and no substantial prejudice results to any person affected by the delay.

The “prohibited grounds of discrimination” under both statutes are numerous.  The most common discrimination claims that arise in employment law however deal with age, citizenship, colour, marital and family status, race, sex and sexual identity. Furthermore, both protect against sexual harassment and harassment on the basis of the above grounds in the workplace. Under the legislation, reprisals or threats of retaliation for individuals who are trying to protect their rights is prohibited.

To succeed as a human rights complainant, you must establish a prima facie case of discrimination. Once this is established, the duty to accommodate arises for the employer and the burden shifts on the respondent to justify their actions. If the respondent cannot justify their actions, the complainant succeeds on their claim.

Certain statutory defences are available in some Canadian jurisdictions for respondents who seek to justify their actions. The most significant defence is the Bona Fide Occupational Requirement or Qualification defence (BFORQ) which allows the respondent to be excused of liability for discrimination when the action that discriminated was done in good faith and for a legitimate business purpose.  Despite this defence, there are some limitations that have grown out of recent jurisprudence whereby an employer will be obligated to provide some form of accommodation.

In Ontario, there is a statutory defence for direct discrimination only in relation to age, sex, record of offences and marital status under s. 24(1)(b).  Direct discrimination is seen where a rule very obviously discriminates on prohibited grounds. Ontario also has a specific provision that recognizes the defence in relation to adverse effect discrimination (s.11). Adverse effect discrimination occurs where a seemingly neutral rule or policy, creates discriminatory outcomes. Where there is no statutory defence, one can rely on the common law test developed by the courts and revisited by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU.

Allegations of discrimination and other human rights claims can pose significant emotional consequences on complainants and can further negatively impact large organizations who require reputational protection.  Stacey ball helps both employers and employees to enforce or defend against allegations of human rights when asserted in the context of a civil action or at the human rights tribunal. Call our office at 416-921-7997.

Employers have a duty to accommodate their employees. In Ontario there is legislative recognition of this duty under s.11(2), 17(2) and 24(2). The duty as stated in the Syndicat case is intended to “ensure that an employee who is able to work can do so” and that individuals who are “otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”.

The duty to accommodate however is not absolute. It is subject to undue hardship on the part of the employer. There will be instances where an employer’s reasonable efforts at accommodation fail to allow an employee to work, given an employee’s disability. Any further accommodation may potentially lead to undue hardship for an employer. In these cases, the duty to accommodate does not prevent the employer from terminating an employee who can no longer perform their work functions. To avoid a termination being deemed as discrimination however, the work functions must be shown to be bona fide occupational qualifications.

The seminal case which created a 3-part common law test to determine whether a discriminatory practice or standard is a bona fide occupational requirement was British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union [1999] 3 S.C.R. First, it must be established that the alleged discriminatory standard was rationally connected to the performance of the job. Second, it must be shown that the standard was made honestly and in good faith belief that it was necessary to fulfil work-related purposes. Lastly, the standard must be shown to be reasonably necessary to the accomplishment of work-related purposes and it must be shown that it is impossible to accommodate other employees with similar characteristics of the claimant, without undue hardship. If the employer can justify the alleged discriminatory standard on a balance of probabilities in accordance with the three-part test, the standard will be a BFOR.

If you are an employer seeking to accommodate or require advice on what your organizations obligations are in relation to your employees, contact our office at 416-921-7997. Furthermore, if you are an employee that has had difficulty seeking reasonable accommodations from your employer, our office can help you advance your discrimination and human rights claim.

Defamation, as a legal concept, requires three things to be established on a balance of probabilities before a comment is considered defamatory:

1. The words would tend to lower the person’s reputation in the eyes of a reasonable person;
2. The words were in fact about, and referred to, the person in question; and
3. The words were “published” (i.e., they were communicated to at least one person other than the person the comment was about).

From these requirements alone, it would appear that some workplace communications, such as making a complaint to management or human resources about another employee, or providing a “bad” reference about a former employee, could be considered “defamatory.”  However, there are defences to defamation that could apply.

Defences to Defamation

There are multiple defences to defamation, however there are three that are most likely to arise in the context of employment:

1. The Truth.

If the statement in question is true than it is not considered defamation.  For example, if person A says to person B that person C sent explicit emails, then the comment appears to meet the three criteria for defamation.  The comment would lower person’s C reputation in the eyes of a reasonable person, the words specifically referred to person C, and the words were said to at least one person other than person C (i.e., it was said to person B).  However, if person A can show that what they said was the truth (i.e., they have records of the explicit emails), then the comments are considered justified and therefore not defamatory.

2. Qualified Privilege.

Qualified privilege is a concept that creates situations in which comments that are false or defamatory can be made by somebody without liability.  Specifically, qualified privilege applies to situations in which a person has an interest or duty (whether legal, social, or moral) to make the comment to a person who has the corresponding interest or duty to receive it.  The reciprocity of the interest or duty is essential.  For example, a complaint from an employee to human resources about bad behaviour from her manager will be protected by qualified privilege, but that same complaint posted on social media or otherwise published to the general public would not be protected by qualified privilege.

There are limits to qualified privilege.  A comment may not be protected if it was malicious (i.e., there was a motive or ulterior purpose that conflicts with the mutual interest or duty that would create qualified privilege) or if it exceeded the bounds of the privilege (i.e., it includes defamatory matter that is not relevant to a the interest or duty that would create qualified privilege).

3. Made Outside the Scope of Employment Duties.

A corporation can be held vicariously liable for the defamatory comments of its employees.  However, if those comments were made while the employee was acting outside of the scope of their employment duties, then the corporation may not be vicariously liable for those statements and instead the employee may be individually liable.

Conclusion

Defamation can occur in the workplace, but there are some situations in which the employer may be immune from liability for the defamatory comments.  It is important to consult a lawyer to assess the situation.

Stacey Reginald Ball is an experienced Toronto employment lawyer with the Ball Professional Corporation.  Our office handles various employment law matters, including wrongful dismissal.  If you have questions regarding workplace defamation, please consult a lawyer for advice.