Professional Workplace Discrimination: Advice from an Employment Lawyer

The modern workplace should be free from discrimination, right? Despite decades of hard-fought battles to improve equality and equity, the spectres of bias and prejudice remain ever-present.

If you’ve experienced workplace discrimination, you aren’t alone and you have options. An experienced employment lawyer like the team at Share Lawyers can represent you and fight for your rights.

Did you experience discrimination in the workplace? Share Lawyers’ experienced employment lawyers can help.

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Workplace Discrimination: Advice from an Employment Lawyer

Discrimination in the workplace is commonly misunderstood by employers and employees alike. Many employees cannot identify workplace discrimination, let alone know how to deal with it.

Discrimination in the Workplace: What to Know

1. Protected Characteristics

Human rights laws outline the characteristics that protect against discrimination: age, gender, sex, ethnicity, creed, and disability. (Protections vary by province and industry; unique grounds like political beliefs may also be covered.)

2. Unprotected Characteristics

Human rights laws outline the characteristics that are not protected against discrimination: coverage for health and safety concerns, employment standards, or workplace harassment unless linked to a protected ground.

Nuances exist; actions such as mandatory vaccination policies, termination due to disability, or retirement age requirements may not always be discriminatory.

3. Intentionality of Discrimination

Discrimination doesn't always need to be intentional; it can arise from well-intended policies that have a discriminatory effect in specific cases.

4. Duty to Accommodate

Employers must reasonably accommodate restrictions related to protected grounds, such as religious practices that cause "undue hardship."

5. Undue Hardship

Employers are only obligated to accommodate if it results in reasonable inconvenience or expense. This concept is particularly complex in cases involving disabilities.

6. Reprisal Protection

Human rights legislation incorporates reprisal protection, preventing employers from penalizing employees for asserting their human rights. Violations of reprisal protections may result in substantial penalties for employers.

7. Enforcing Rights

Reprisal protection enables employees to address human rights issues directly with employers before pursuing legal action. Additional employee options include seeking legal advice from employment lawyers.

Characteristics that ARE Protected by Human Rights Law

Generally speaking, “discrimination” refers to rights that are 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 such as:

  • Age

  • Gender

  • Sex

  • Ethnicity

  • Creed (religion)

  • Disability

Some employees are protected against workplace discrimination on other, more unique grounds. For instance, British Columbia’s Human Rights Code protects against discrimination based on political beliefs.

Characteristics that ARE NOT Protected by Human Rights Law

It is a mistake to assume that human rights law universally safeguards against unfair treatment. Just because something is unfair does not mean that it is discriminatory. From a human rights standpoint, the distinction between unfair treatment and discrimination is nuanced.

There are a few obvious non-discriminatory issues, like health and safety concerns, employment standards (e.g., lack of lunch breaks), or workplace harassment unless tied to a protected ground.

Policies like mandatory COVID-19 vaccination, termination due to disability, or mandatory retirement may not always be considered discriminatory. 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. In fact, many (perhaps most) cases of discrimination in the workplace are unintentional.

More specifically, workplace discrimination often arises from 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 accommodate restrictions related to any protected ground, as long as the accommodations are reasonable for the employer to provide. For instance, an employer would be required to accommodate an employee’s requests for regular breaks 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,” 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.

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 problems with your employer first before seeking legal redress with an employment lawyer or otherwise.

Share Lawyers Will Protect Your Rights

If you believe you’ve experienced workplace discrimination and have raised the issues with your employer to no avail, it may be time to consider seeking legal advice from an employment lawyer.

At Share Lawyers, we understand the frustration of being unfairly discriminated against. Work is difficult enough without feeling like you’re walking on eggshells due to biases outside your control. Our team of experienced employment lawyers is ready to protect your rights.

It all starts with a free consultation.

Did you experience discrimination in the workplace? We can help.

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