All jurisdictions have legislation and administrative agencies to deal with human rights complaints concerning harassment and discriminatory practices in the workplace. 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. As might be expected, the defence of undue hardship is a high hurdle for an employer to overcome, and generally requires something more than the mere economic cost of achieving accommodation.
In each jurisdiction, human rights matters are adjudicated by specialised administrative bodies, usually referred to as human rights tribunals. Human rights issues are sometimes raised in employment litigation before the courts as well.
Extent of Protection
Each Canadian jurisdiction has its own human rights legislation, and the defined criteria or grounds for discrimination vary by jurisdiction.
- 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.
- 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.
A rule or policy that is directly discriminatory will not be permissible unless an exemption under the relevant statute applies. For example, some religious, educational or social institutions or organisations that are primarily engaged in serving the interests of persons identified by race, sex, creed, etc. may give preference in employment to persons similarly identified if such preference is reasonable and bona fide in light of the nature of the employment. Direct discrimination is therefore only permissible in rare circumstances. Indirect or constructive discrimination may, however, be permissible only where the requirement is reasonable and bona fide in the circumstances, and where providing accommodation to the affected individual or group would cause undue hardship to the employer. Undue hardship is determined based on factors of cost, outside sources of funding, and health and safety, and is a very high threshold for employers to meet. In many cases, the employer will be required to provide some form of accommodation to the affected employee or group of employees by, for example, allowing for some scheduling flexibility for employees based on employees’ religious observance.
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.
- 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 recognised the benefits of employing a diverse workforce and have therefore voluntarily created goals or guidelines designed to increase diversity.