1. Brief Description of Anti-Discrimination Laws
As a general statement of the law in Canadian workplaces with respect to human rights, employers have an obligation to offer employment without discrimination and to guard against harassment based on prohibited grounds. Specifically in respect of disability, employers have a significant duty to accommodate employees to the point of undue hardship. This requirement is designed to ensure that employees with disabilities are offered accommodation that will enable them to meet bona fide occupational requirements.
2. Extent of Protection
Protected characteristics, direct vs. indirect (disparate treatment/direct discrimination vs. disparate impact/indirect discrimination), protection against retaliation/victimization, affirmative action requirements.
a) Protected Grounds
Generally, human rights legislation is applicable to the following grounds: race-related grounds, creed, sex, disability, age, sexual orientation, marital status, and family status. Some Canadian jurisdictions also prohibit discrimination based on gender identity and expression, as well as discrimination based on criminal convictions that are unrelated to employment, or criminal convictions for which a pardon has been obtained.
b) Direct vs. Indirect Discrimination
Human rights legislation prohibits both direct and indirect or discrimination. Obviously, a rule or policy that is overtly discriminatory will offend human rights legislation. For example, a job advertisement indicating that no women need apply would likely be viewed as direct discrimination on the basis of sex. A policy that all employees must be available to work on Sundays may constitute indirect or constructive discrimination, as this seemingly “neutral” rule may have a differential and adverse impact on employees based on their creed or religion.
Human rights legislation prohibits making any threats of reprisal or taking any action to reprise against an employee for claiming or enforcing a human right. An employee therefore cannot be disciplined or otherwise penalized for making a complaint regarding discriminatory harassment, or for requesting accommodation based on a protected ground.
d) Hiring Quota or “Affirmative Action” Requirements
Most jurisdictions in Canada have some form of equal pay and/or pay equity legislation to ensure that wage parity exists between male and female workers. Such measures are intended to redress systemic discrimination. Although employers are prohibited from discriminating in employment, employers are generally not required to meet any particular quota for hiring historically disadvantaged groups. Employers do, however, increasingly face claims by prospective or current employees that they have been adversely affected by systemic discrimination. Many employers in Canada have recognized the benefits of employing a diverse workforce and have therefore voluntarily created goals or guidelines designed to increase diversity.
3. Protections Against Harassment
Harassment is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. Harassment based on a prohibited ground of harassment will violate human rights legislation. Sexual harassment is a form of discriminatory harassment. Personal harassment is also prohibited under occupational health and safety legislation in many jurisdictions. Employers are obligated to have policies in place to prevent and address harassment in the workplace. In most cases, employers will be required to conduct an investigation into allegations of workplace harassment and take corrective or remedial action based on the outcome of the investigation.
4. Employer’s Obligation to Provide Reasonable Accommodations
Employers are required to accommodate employees to the point of undue hardship. Employees are entitled to be provided with reasonable accommodation that is necessary in the circumstances. A reasonable accommodation will be one that meets the employee’s needs and does not impose undue burdens, financial or otherwise, on the employee.
Employees who have been subject to discrimination may file a human rights complaint or, in some cases, a civil action or grievance. Employees may seek compensation for any lost wages that resulted from an employer’s discrimination and/or failure to accommodate to the point of undue hardship. For example, if an employer refuses to provide modified work to an employee win order to enable him or her to return to work, the employer may be ordered to pay the employee for the period of time that he or she remained unable to work due to the employer’s failure to accommodate. Damages may also be awarded for the injury to an employee’s dignity, feelings and self-respect that may have been caused by the employer’s actions.