In order to access the protections and rights of the Employment Standards Act, an individual typically needs to be considered an “employee” as opposed to an “independent contractor”.
HUMAN RIGHTS CODE
The Course of Your Employment
Ontario’s human rights legislation is the Ontario Human Rights Code, R.S.O. 1990 and it protects individuals in five social areas, including employment. The Code prohibits discrimination on the basis of various prohibited grounds. For employment, these are; age, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity or gender expression, record of offences, sex (including pregnancy and breastfeeding) and sexual orientation. Federally regulated employees, such as those working for airlines, banks or telephone companies, must file a claim with the Canadian Human Rights Commission. By contrast, provincially regulated employees may file applications at the Human Rights Tribunal of Ontario.
Human rights cases relating to the workplace most often fall into two broad categories; sexual harassment and discrimination. Please see the article titled “Sexual Harassment” for more information on that topic. The right to “equal treatment with respect to employment” covers each aspect of the workplace environment and the employment relationship. This includes job applications, recruitment, training, transfers, promotions, dismissal and layoffs. As well, it covers rate of pay, overtime, hours of work, holidays, benefits, discipline and performance evaluations.
Types of Discrimination
There are three types of discrimination that employers and employees may come across. These are direct, adverse effect and systemic. Direct discrimination occurs when a person is disadvantaged on the basis of an explicit reference to group affiliation. For example, if a “help wanted” sign said that only males need apply, this would be direct discrimination on the basis of gender. Adverse effect discrimination occurs when a seemingly neutral rule or policy has a discriminatory effect on members of a certain group. For example, minimum height requirements for airline pilots constituted adverse effect discrimination against women. Lastly, systemic discrimination concerns overlapping and interconnected rules, practices and assumptions that combine to produce a discriminatory effect.
Note that discrimination on the basis of political belief, opinion, affiliation, association, activity or conviction is permissible in the province of Ontario. However, these do constitute prohibited grounds of discrimination in in all jurisdictions except the federal jurisdiction, Alberta, Saskatchewan, Nunavut and Ontario.
Employer’s Duty to Accommodate
The duty to accommodate requires the employer to demonstrate they could not have accommodated an employee without undue hardship. This applies where, for example, an employee has a disability which makes it more difficult to work. Simply firing the employee as a consequence of his disability would obviously be a violation the Ontario Human Rights Code, and if this has happened to you, you should contact a human rights lawyer such as Stacey Ball.
The purpose of accommodation is “to ensure that an employee who is able to work can do so” and that “persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”. The duty to accommodate is a demanding obligation and requires employers to assume substantial extra obligations and financial costs to promote a fully integrated and non-discriminatory workplace.
What is undue hardship? This does not require an employer to show that it is impossible to accommodate an employee, but does require them to show that nothing else reasonable or practical could be offered. The word “undue” implies that some hardship is acceptable. There is no exact definition of what “undue hardship” is, but courts have considered the following factors: cost of accommodation, outside sources of funding (if any), and health and safety requirements (if any). In Ontario, no other factors can be considered. This means that business inconvenience, employee morale, and customer preference is not to be considered in how far an employer must go in accommodating their employees.
The duty to accommodate ends when, even with appropriate accommodation, an employee is no longer able to fulfill the basic obligations associated with their employment.
Possible Defence to Discrimination: The Bona Fide Occupational Requirement or Qualification (BFORQ) Defence
Employees who believe they have been discriminated against contrary to the Ontario Human Rights Code should keep in mind the Bona Fide Occupational Requirement or Qualification Defence. This is the most important statutory defence to discrimination. The purpose of the defence is to excuse discrimination when it is done in good faith and for a legitimate business reason.
According to the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, there is a three-step test which must be satisfied in order for a discriminatory workplace standard to be a bona fide occupational requirement:
- that the employer adopted the standard for a purpose rationally connected to the performance of the job;
- that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
- that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
If you have been discriminated against on a prohibited ground during the course of your employment, contact Stacey Ball – employment lawyer and human rights lawyer in Toronto to understand your options in detail. You may file an application at the Human Rights Tribunal of Ontario, keeping in mind there is a one-year time limit for filing an application from the last discriminatory event according to section 34 of the Ontario Human Rights Code. Ontario’s common law may also indirectly provide additional remedies for discrimination, human rights abuses and sexual harassment.
You may file a lawsuit for wrongful dismissal, constructive dismissal, assault, or the tort of intentional infliction of nervous shock or suffering, and explain how discrimination or harassment played in role in the conduct in question. Note that the Human Rights Tribunal of Ontario cannot consider an application if there is already a human rights claim before the court or the claim is the subject of a court decision. The determination of whether or not the legal elements for a human rights, discrimination or sexual harassment case are present depends on the circumstances surrounding the incident.
DEFENCE TO DISCRIMINATION
Canadian Employment Law
Mr. Ball is author of the authoritative and definitive text Canadian Employment Law - published by Canada Law Book (a division of Thomson Reuters). The text is used and cited by lawyers, law schools and judges across Canada.
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