Do you have to hire a woman that is pregnant? Can you let one go if there is a shortage of work? If your driver has a prescription for medical marijuana, do you have to let him work? And what if you have an employee that has been on medical leave for months or years; how long do you have to hold their job open for them?
These are just some of the issues that confront employers when it comes to human rights.
Every jurisdiction in Canada has human rights legislation in place which prohibits harassment and discrimination based on enumerated grounds. Their purpose is to ensure that minorities and traditionally disadvantaged groups do not suffer from unequal treatment in various contexts, including employment. This applies to hiring decisions, accommodation of disability and other limitations, and, of course, termination of employment.
Direct and Indirect Discrimination
It should be obvious that employers cannot, except in unusual circumstances, refuse to hire, or make termination decisions, based upon grounds such as religion or sexual orientation. That is direct discrimination.
However, indirect discrimination is also prohibited. For example, a job posting that says “No Jews will be considered” is direct discrimination. A job posting that says applicants must be available to work on Saturdays may indirectly discriminate against the same group, since some Jews cannot work on Saturday since they observe the Sabbath. Neither form of discrimination is lawful.
Human Rights Legislation
Every jurisdiction has its own Human Rights legislation. They are largely the same, and they all prohibit employers from unlawfully discriminating against their workforce on the basis of specified grounds. In Ontario, those grounds are:
- place of origin,
- ethnic origin,
- sexual orientation,
- record of offences,
- marital status,
- family status, or
This right to equality spans all aspects of the employment relationship, including hiring, workplace environments, dress codes, promotions, and dismissals. Any workplace rule or decision that adversely impacts an employee due to a prohibited ground is a breach of their rights. And it is critical to understand that even if the prohibited ground is one small part of the reason for the decision, that is a breach. You may have plenty of good reasons to dismiss an employee, but if the fact that they take a lot of time off to look after their kids entered into the thought process, then you will be exposed to liability.
Employers’ Duty To Accommodate
The right to be free of discrimination also includes a duty to accommodate.
Employers are often challenged by the duty to accommodate. This applies to disability, childcare obligations, and, as has recently been featured in the media, use of medicinal marijuana. The end result is that employers may have to incur some cost, or hardship, as a result of this duty.
Our job is to explain the duty to accommodate, along with the limitations on that duty, such as bona fide occupational requirements and undue hardship, so that you can fully understand your obligations, make an informed decision, and minimize liability.
You should have a standard policy to respond to all requests for accommodation. The best way to expose yourself to liability is to refuse a request for accommodation without even considering it.
How We Can Help
We will help to design policies and procedures that do not breach applicable legislation. We will also coach you on hiring processes and other procedures to ensure that you do not inadvertently breach your human rights obligations. And, of course, we will defend you when you are faced with allegations that you breached the human rights legislation.