Discrimination is never okay, especially in the workplace. The core of our very being, the pieces that make us who we are, are so often the things over which we have little to no control – where we come from, the colour of our skin, our closely held religious beliefs, our sexual orientation, our health, our roles as spouses and parents, etc. We would not want to change these things – they’re integral to our identities.
The law states very clearly that these core pieces of who we are must be protected, and that we cannot be discriminated against because of them. Under Ontario’s Human Rights Code (the “Code”), these are known as enumerated or protected grounds, and they include the following 16 areas:
- Citizenship
- Race
- Place of origin
- Ethnic origin
- Colour
- Ancestry
- Disability
- Age
- Creed
- Sex/pregnancy
- Family status
- Marital status
- Sexual orientation
- Gender identity
- Gender expression
- Record of offences
Employers not only cannot discriminate against employees based on these grounds, but they need to be accommodated in most circumstances. However, just because an employer cannot legally do something, that does not stop all discrimination in its tracks.
What legal options do employees have when they have been discriminated against at work?
What the law says
The Code is very clear – the grounds listed above are protected at law, and employees cannot be discriminated at work based on any of these grounds, nor harassed based on them. Employers cannot deny an employee promotion or opportunity based on any of these grounds, nor can any decisions about hiring or termination be based upon any of the above areas.
The law requires employers to accommodate to the point of ‘undue hardship,’ which comes up frequently in the realm of disability. While most of these grounds do not typically require accommodation, it can mean that employers may have to make extra efforts to accommodate employees by modifying schedules to account for childcare, allowing additional time off for an employee who is pregnant to attend appointments, or modifications to working conditions when an employee has a disability.
Undue hardship also means that there are times when an employer will simply not be able to accommodate. The employer would need to show that the cost of accommodating the employee is so high that it would affect the viability of the business. However, this is evaluated in the context of the size and resources of the organization. Larger companies with more resources may have a harder time proving that an accommodation request imposes undue hardship. If a small business with limited financial resources is asked to make extensive and expensive modifications to its building to accommodate an employee with a mobility-related disability, the cost of such renovation could threaten the business’s ability to remain operational, and such request might be considered undue hardship.
If an employee has been discriminated against based on one of these protected grounds, they may have several legal options. If the discrimination is also part of another legal complaint (i.e. a cause of action against the employer), such as a wrongful dismissal, they may be able to make a civil claim in court for damages both for termination, as well as for wrongdoings under the Code. Yet if the employee’s primary complaint is discrimination, they can look to proceed directly to the Human Rights Tribunal.
An introduction to the Human Rights Tribunal
Aside from our court system, Ontario also operates a network of administrative tribunals that deal with specific issues, such as the Landlord Tenant Board, the Parole Board, and the Human Rights Tribunal. Each of these are overseen not by judges, but by qualified experts who have unique expertise to hear disputes and make rulings within that specific area.
The Human Rights Tribunal has operated in Ontario for several decades, but in 2008 they moved to a direct access model, which meant that applicants did not need a lawyer to represent them at the Tribunal. However, while they try to follow a more applicant-friendly approach, they still operate with similar procedures to a Court.
Anyone can bring an Application (the tribunal’s version of a lawsuit) to the Tribunal alleging discrimination. The forms allow for a Complainant (a plaintiff in civil cases) to provide evidence of their allegations. Once reviewed, the Tribunal sends it onto the Respondent (aka defendant civilly) to provide their response and counter any allegations.
From there, the matter is handled similarly to a Court process in that there are multiple steps that are usually taken to encourage settlement before a full hearing. If lawyers are involved, they can continue to negotiate even after the filing of an Application or providing a Response. The Tribunal will also conduct a mediation where the parties come together less formally in an effort to settle the matter early on. There may also be summary or preliminary hearings where the Tribunal can make earlier finding that the matter would not succeed at a hearing.
While the Human Rights Tribunal is not a court, they still have a great deal of power. Decisions can be appealed through the Court system if one party is unhappy with the results. For employers, human rights allegations can also serve as media fodder, and local media will often cover human rights cases with unsavoury allegations. Unlike private settlements, proceedings before the Tribunal, just like a court, are a matter of public record.
If the Tribunal rules against an employer, they have very different powers than a Court does.
It has the authority to award monetary compensation for injury to dignity, feelings, and self-respect. This compensation is intended to address the emotional harm, humiliation, and distress caused by the discriminatory act. In addition, it can award compensation for lost wages and benefits to restore the individual to the financial position they would have been in had the discrimination not occurred. This may include payment for wages, benefits, or other employment-related losses. One other, not so often requested, remedy is the Tribunal’s ability to order that an employee be reinstated (hired back).
Final thoughts
The Human Rights Tribunal is often misunderstood by employers and employees alike.
Employees do not always know that there is a ruling body that can deal specifically with discrimination matters, and they don’t have to wait until something catastrophic happens to take action. On the flip side, employers often make the mistake of not taking the Tribunal seriously. The rulings made by the Tribunal are valid at law and can lead to a costly and potentially publicly humiliating venture.
Thankfully there are solutions. Having good policies that protect employees’ human rights, and training all levels of workers on those policies, is crucially important. Employees and managers alike should have a clear idea of what discrimination looks like in their workplace, and what they can do to stop it in its tracks.
Lastly, while lawyers are not required by the Tribunal to proceed, they can be tremendously helpful when advancing an Application or preparing a thorough Response in defence. An experienced human rights lawyer helps both complainants and respondents put their best case forward and can ideally strive to settle the issues at an earlier stage. Contact our office today to set up a consultation.