Answer ... Discrimination is the unlawful imposition of burdens on an individual or group by virtue of their possession of certain protected characteristics. Discrimination is closely linked to stereotyping and prejudice and may be advertent or inadvertent, specific or systemic.
There are two broad categories of discrimination: direct discrimination and indirect discrimination. Direct discrimination occurs when an employer institutes a practice or rule which, on its face, discriminates against an individual on a prohibited ground. For instance, an example of direct discrimination might be where an employer has a policy that only men are allowed breaks, which would discriminate against individuals who do not identify as men.
Indirect or ‘adverse-effect’ discrimination occurs when an employer institutes a practice or rule which is facially neutral, but has the effect of being discriminatory on the basis of a prohibited ground, in the sense of imposing disproportionate burdens. The core aspect of indirect discrimination is that it imposes greater obligations, penalties or conditions upon those employees because of the prohibited ground than it does on other employees. For example, a mandatory workplace dress code or uniform could effectively require individuals who wear religious garments, such as turbans or kippahs, to abandon their religious practice in order to comply with the workplace policy and participate fully in the workplace.
Answer ... The Canadian Charter of Rights and Freedoms and the human rights codes in each province protect broadly similar groups and classifications.
The common groups and classifications entitled to protection are age, sex, family status or affiliation, sexual orientation, race, colour, ethnicity, religion, disability and genetic characteristics.
Certain provinces have also established protections from discrimination on the grounds of national origin, political beliefs, association, criminal record and history, citizenship, linguistic origin or background, and even irrational fear of contracting an illness or disease.
Answer ... Employers have a duty to accommodate employees on the basis of protected grounds in human rights law to the point of ‘undue hardship’. The duty to accommodate helps to facilitate full participation of employees in the workplace notwithstanding personal characteristics such as disability or religious observance. The duty to accommodate is triggered once an employer learns of an employee’s needs relating to a protected ground of human rights law, usually through a request from the employee directly. Employers are ultimately responsible for determining what kind of accommodation would be appropriate in the context of the particular workplace and the employee’s circumstances.
Employers have a duty to take seriously and investigate complaints of discrimination, including harassment based on a protected ground of human rights law. Failure to respond appropriately to complaints of discrimination and harassment could result in liability even if the underlying complaint is ultimately unsubstantiated. An employer’s failure to remediate discrimination and harassment can also contribute to a ‘poisoned work environment’, for which the employer may be held liable.
Employees who request accommodation or raise concerns about discrimination and harassment are protected against reprisal for exercising their statutory rights to be free from discrimination and harassment in the workplace.
Answer ... Discrimination complaints are processed predominantly by provincial human rights tribunals and human rights commissions. Some of the provinces employ a ‘direct access’ model for human rights complaints, while others use human rights commissions to perform a ‘gatekeeper’ role in the complaints and adjudication process.
In both models, the process typically begins with the filing of a formal claim with the commission or tribunal and the parties concerned. The direct access model proceeds in a similar manner to the court-based civil litigation process, with the exchange of pleadings and documents, the opportunity for the parties to make preliminary objections concerning jurisdictional and procedural matters, and ultimately adjudication on the merits before the tribunal with witness examinations and oral argument.
In provinces using the gatekeeper model, the parties’ submissions are often received by the respective human rights commission, which then typically investigates, mediates, prepares a report and ultimately decides whether to advance the claim to adjudication. Depending on the province and the complaint, the commission may, in addition to referring a complaint to the tribunal, take carriage of the complaint, in which case the commission will represent the complainant throughout the remainder of the proceedings.
The decisions of human rights tribunals are final and binding, but may be subject to judicial review, typically on the deferential reasonableness standard. Some tribunals also allow for reconsideration of tribunal decisions in limited circumstances.
Answer ... The remedies that are available in human rights complaints depend largely on the nature of the case and the responsible tribunal or commission’s remedial jurisdiction as defined by the applicable human rights legislation and rules.
Many different remedies are codified in human rights legislation. Common remedies include orders:
- to pay ‘human rights damages’ to compensate for injury to dignity, feelings and self-respect;
- to cease and desist from the discriminatory contravention;
- to reinstate the complainant employee;
- to pay damages for specific financial loss attributable to the discrimination (ie, lost wages and expenses incurred);
- to introduce measures to make facilities accessible; and
- imposing public interest remedies, such as requiring an employer to adopt policies, implement training and education, and post human rights legislation and notices of contraventions in the workplace.
Answer ... Harassment and bullying on the basis of a protected ground of human rights law amount to discrimination. Harassment and bullying of this nature will be investigated, processed and remedied in the same manner as other complaints of discrimination.
Harassment and bullying which do not relate to a protected ground of human rights law and therefore do not amount to discrimination are often regulated by health and safety legislation. In Ontario, for example, health and safety legislation requires employers to implement policies and procedures for preventing and investigating instances of workplace harassment and violence. In Quebec, the Act Respecting Labour Standards also provides a general mechanism whereby employees may seek redress for ‘psychological harassment’, which is defined in Section 81.18 as “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee”. The scope of this definition is notably broader than that in other pieces of provincial legislation, which in some cases specifically exclude reasonable actions taken by a manager or supervisor relating to the management and direction of the workplace from the ambit of ‘workplace harassment’.