Discrimination is a term commonly misunderstood by employers and employees alike. Many employees are unable to identify discrimination in the workplace, let alone know how to deal with it. This article is a primer on the general pointers we give to employees who come to our employment lawyers for advice and representation on discrimination complaints.
Which characteristics are protected by Human Rights law?
Generally speaking, “discrimination” refers to rights protected by human rights legislation. Human rights legislation protects against discrimination based on specific personal characteristics.
All employees in Canada have protection under some human rights legislation, which can vary from province to province and in federally-regulated industries. However, all human rights legislation protects against discrimination on characteristics like age, gender, sex, ethnicity, creed (i.e., religion), and disability. Some employees are protected against discrimination on other more unique grounds. For instance, British Columbia’s Human Rights Code protects against discrimination on the basis of political beliefs.
Which characteristics are NOT protected by Human Rights law?
Many people mistakenly believe that human rights law provides general protection against unfair or unequal treatment. This is not the case.
Some of the more obvious examples of issues that are NOT discrimination include things like health and safety concerns, concerns relating to employment standards (e.g., not being given a lunch break), or general workplace harassment. None of these issues, on their own, are “discrimination” – unless the issue relates to or arises out of a protected ground.
In other cases, the distinction between what amounts to discrimination or not is more nuanced. For instance, it is usually not discriminatory for your employer to adopt a policy requiring that you receive the COVID 19 vaccine; it is sometimes not discriminatory for your employer to terminate your employment because of a disability, and it is sometimes not discriminatory for certain employees to be required to retire at a certain age. The rules about things like this come from case law, with which the experienced employment lawyers at Share Lawyers are very familiar.
Does discrimination need to be intentional?
No – many (perhaps most) cases of discrimination are unintentional.
More specifically, workplace discrimination often arises out of decisions, rules, policies, practices and procedures that are intended to be fair and objective, but have a discriminatory effect when applied to a particular case.
For example, an employer might adopt a policy that indicates employees will be terminated after five consecutive days of absence. Even though the employer may intend and even believe that the policy is fair, objective, and equal, that policy would have a discriminatory effect when applied to an employee who cannot work due to a disability.
What is the Duty to Accommodate?
Employers are required to reasonably accommodate restrictions related to any protected ground. For instance, an employer would be required to accommodate an employee’s requests for regular breaks in order to pray, where required by their religion.
The duty to accommodate is not absolute, however. Employers are not required to accommodate an employee where doing so would constitute “undue hardship” – i.e., some kind of unreasonable inconvenience or expense. This issue gets especially tricky when it comes to things like disabilities, which might cause an employee to become entirely disabled from working.
What is Reprisal protection?
All human rights legislation contains reprisal protection. This means employers are prohibited from punishing employees for inquiring about and/or seeking to enforce their human rights. Employers who violate these reprisal protections can be exposed to steep penalties.
How can I go about enforcing my rights?
Reprisal protection gives employees the footing to self-enforce their human rights in the workplace. Employers are meant to be the first line of protection for human rights issues, and it is good practice to raise all such issues with your employer first, before seeking legal redress with an employment lawyer or otherwise.
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If you are dealing with an employment issue such as wrongful dismissal, unfair severance, or workplace harassment, contact the employment lawyers at Share Lawyers. Our 35+ years of experience in long term disability (LTD) law and team of experienced employment lawyers can help you win your case against your employer. We offer free consultations and there are no fees unless you win your case. Join us on Facebook and become a Top Fan for a chance to win each month.