With respect to human rights, employers have an obligation to offer employment without discrimination and to guard against harassment based on prohibited 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. 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 recognised the benefits of employing a diverse workforce and have therefore voluntarily created goals or guidelines designed to increase diversity.
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, which includes sexual harassment and personal harassment. Employers are obligated to have policies in place to prevent and address harassment in the workplace. Social issues such as the “#MeToo movement” and “Black Lives Matter (BLM)” also continue to change the landscape of employment law in Canada, with an increased emphasis on issues of discrimination and harassment (including sexual harassment).
Although Canadian jurisdictions have long had laws pertaining to discrimination and harassment, the number of claims now being made has increased significantly. This trend has led to a number of legal proceedings, including large class action lawsuits. Further, the continued trend toward workplace harassment legislation has dramatically increased the number of claims and investigations. Given that these claims are based on relatively new, untested legislation, the standards of conduct are still being developed by the litigation process, resulting in not only meritorious claims coming forward, but also a distinct trend of employees claiming harassment over what have traditionally been seen as normal management techniques and disciplinary measures, or simply in response to any critique of their work performance.
Also, 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 penalised for making a complaint regarding discriminatory harassment, or for requesting accommodation based on a protected ground.
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. 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.