Workplace Discrimination

If you have been the victim of workplace discrimination because of your disability, age, ethnicity, or on any other protected grounds, you may have legal recourse under human rights law.

It would be best to book a free consultation with one of our employment lawyers to learn your rights and how to enforce them.

Every employee has the right to a workplace free from discrimination, and every employer has a corresponding duty to protect employees from discrimination. Unfortunately, employers do not always honour that duty, which means employees need to take matters into their own hands and enforce their rights. Often, this means contacting an experienced employment lawyer.

What is workplace discrimination?

Workplace discrimination occurs when you are excluded, denied benefits, or face other adverse consequences in the workplace based on stereotypical assumptions about your age, gender, sex, ethnicity, religion, disability, or other protected ground under human rights legislation.

Does discrimination need to be intentional?

No – this is a common misconception heard by our employment lawyers. Many instances of discrimination (maybe even most) take place without any intent to do harm. In almost all cases in employment law, discrimination is not the only explanation for the conduct.

In short, human rights law is focused not on discriminatory intentions but rather discriminatory effects.

Direct discrimination

When people think of workplace discrimination, they most often think of direct discrimination, which involves biases and negative attitudes directly associates with a protected characteristic.

Example: An employer rejects a Black candidate for a job after interviewing her. The hiring manager appeared disinterested and cut the interview short, without asking about the candidate’s credentials. When the candidate asked the hiring manager what went wrong, he said something about maintaining the company image.

Direct discrimination can be subtle and require an examination of the larger context. Your employer is not likely to admit (even to themselves) that their conduct was discriminatory. Evidence may include how other employees in similar positions have been treated, and whether a pattern of conduct exists.

Indirect or Systemic discrimination

Indirect discrimination occurs when seemingly neutral workplace policies have a discriminatory effect on certain employees because of a protected characteristic.

Example: An employer adopts a policy that employees who are absent for more than 10 days in a month will be disciplined. This policy could indirectly discriminate against employees who need to be absent from work due to a disability, or for parental leave.

Poisoned work environment

There are situations where discriminatory harassment, jokes, comments, or conduct in the workplace may lead to a poisoned work environment for employees with a protected characteristic, even if the discrimination is not targeted at anyone in particular. Employees may be made to feel uncomfortable, threatened, or unwelcome in a poisoned work environment. This constitutes discrimination.

Example: B, an employee in his 60s, recommends his younger brother, C, as a candidate for a job opening to his manager. C is not contacted for a job interview, and a different candidate is hired instead. Later, B overhears his manager explaining to another employee that “we don’t need any more old farts working here”.

Duty to accommodate

Employers are required to accommodate your work restrictions related to your protected ground unless doing so would cause your employer “undue hardship”. For instance, employers are not required to create new positions or provide “make-work” projects purely for the purpose of accommodating a protected ground. That said, most legitimate accommodations do not constitute undue hardship.

Example: A devoutly Muslim employee asks for brief scheduled breaks from work in order to pray. The employer would be required to accommodate these breaks.

Reprisal protection

One of the most important protections afforded by human rights legislation is the right to be free from retaliation. This means that employers are prohibited from punishing or taking negative actions against employees for seeking to enforce their human rights. Anti-reprisal protection acts both as a deterrent and as a remedy for employees who have sought to enforce their human rights.

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