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.