When we think of human rights, we tend to think in broad terms. We think of grand historical figures in the 20th and 21st century who have been campaigning for the advancement of human rights in various forms. These are important and noble causes, but the truth is that human rights impact us much closer to home than we might imagine.
In Ontario, the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) is the defining piece of legislation that governs our human rights in most of our lives – in accommodation, in how we form contracts, and, for our purposes here, in the workplace. In short, there are laws to protect us against discrimination in almost all of our daily activities.
How do these laws actually operate in the workplace context? What can employers and employees do and not do, and what does it mean when those lines get crossed?\
The Code
The earliest version of the Code was enacted in 1962, and prohibited discrimination in employment based on race, creed, colour, nationality, ancestry and place of origin. Over the past 6 decades the list of protections has expanded specifically. Today, these protections, known in the law as ‘enumerated grounds,’ now include:
- Age
- Ancestry, colour, race
- Citizenship
- Ethnic origin
- Place of origin
- Creed
- Disability
- Family status
- Marital status (including single status)
- Gender identity, gender expression
- Receipt of public assistance (in housing only)
- Record of offences (in employment only)
- Sex (including pregnancy and breastfeeding)
- Sexual orientation.
The Code not only protects against discrimination in these areas based on employment, but also against harassment in employment based on any of these specific grounds, or against restrictions on joining trade unions based on any of these grounds. Employees cannot be penalized based on these immutable characteristics, and cannot be treated differently in the workplace based on any of these criteria.
So what does that actually mean?
Examples of workplace discrimination
There are some plainly obvious examples of workplace discrimination which many of us witness at one point or another in our careers and know is simply not okay. Making fun of another employee’s visible disability, their accent, or their skin colour are all widely known to be unacceptable conduct, although they continue to happen on an all-too-frequent basis.
There are however other examples that may be less obvious. Gender identity and gender expression were protections added to the Code over a decade ago, which protect trans and non-binary individuals from unfair treatment, jokes, inappropriate remarks, ostracization, etc. A person does not need to
disclose their identity to be protected, so wearing non-traditional clothing, or seeking a gender-neutral bathroom, are all protected equally under the Code.
There are other grounds of protection that are even less understood, such as family status. Family status is defined as being in a parent or child relationship, and often applies to those looking after young children, or elderly relatives. This means that employees cannot be discriminated against because they have to pick a young child up from school, or take an elderly parent to a doctor’s appointment.
It’s one thing to say that people cannot be discriminated against, but what does that actually mean for employers?
The Duty to Accommodate
Under the Code, employers have a duty to accommodate their employees, and it is a significant responsibility. The duty extends to the point of ‘unreasonable hardship,’ where it would truly not be possible to accommodate without putting the business in serious jeopardy. Otherwise, it may cost a bit of money, require a bit of creative scheduling, or even modify jobs slightly, but employers are still required to go the extra mile.
Practically speaking, that means that employers may have to modify how they do things in order to accommodate employees, and it starts from the initial hiring process. This may mean allowing an employee who discloses a need for disability-related accommodations extra time, additional software, adaptive furniture, or breaks through the workday, as the case may be.
It may also mean accommodations may involve some significant schedule re-working, especially when family status comes into play. If an employee is unable to work at a certain hour because they are the only person available to watch their minor-age child, their schedules should be amended accordingly. That does not mean that they can work fewer hours for the same rate, or that they can be demoted because of this. They can simply make up the time in other ways.
It is important not to assume what accommodations employees might need. For example, a blind employee may not require braille text, and may simply need inexpensive software to help them read their screens. Accommodation needs to be a two-way street. Employers are required to make reasonable accommodations, but they do not need to be perfect. Similarly, employees should assist in the process, and offer suggestions and feedback. It may take some out-of-the-box thinking, but solutions are usually available with great collaboration.
The Human Rights Tribunal
Courts can handle human rights matters as part of larger complaints, such as an employee suing for wrongful dismissal who is also alleging human rights discrimination. However, for matters that primarily pertain to the human rights code, any parties who have been wronged can bring their matter before the Human Rights Tribunal.
Ontario’s Human Rights Tribunal is a sort of quasi-court that deals specifically with human rights matters. It is open access, so complainants (plaintiffs) do not need to use a lawyer, but a lawyer can be helpful in navigating the complexities of the system. Matters are heard by adjudicators who are well-versed in human rights issues, and can rule on whether or not discrimination has taken place.
There are limits to the Tribunal’s powers. They cannot award wrongful termination damages, for example, and they will not award legal costs to an opposing party. However, there are no costs to appear before the Tribunal, so it is effectively open to all. The Tribunal is also unique in that it can
award damages for ‘injury to dignity, feelings, and self-respect.’ If you have truly been harmed by another party’s discrimination, the Tribunal can make a series of awards including damages (money), reinstatement, workplace training, or even an apology to try and make things right.
Final Thoughts
For employers, knowledge of human rights at work is crucial. Training management and staff routinely, and onboarding and implementing strong workplace policies, will help avoid infractions wherever possible. If an incident does arise, employees already understand how it will be dealt with, and taking quick action can help prevent problems from getting worse. We can help draft and implement those policies to best protect your workplace.
For employees, discrimination is never okay, and feeling targeted at work can be incredibly painful. If you have already spoken with management and the situation cannot be handled internally, our experienced team of lawyers would be happy to help guide you through your next steps and how you can once again feel protected.
Contact our office today to set up a consultation.
