Frequently Asked Questions

DISCRIMINATION FOR EMPLOYEES

Discrimination in the workplace has never really gone away. We watch television shows like Mad Men, and hear stories about workplaces where women were rarely hired, married women were almost instantly terminated from their employment, and employees of colour were scarcely seen. Even in a country like Canada, where we pride ourselves on our multiculturalism, such practices were the norm until only a few decades ago.

Today workplaces may be more open and accepting, but discrimination still occurs even if it is more covert. Employees within protected human rights grounds will regularly experience more subtle forms of discrimination, whether through a lost job opportunity, a workplace complaint, or a policy that ultimately holds them back. These acts of discrimination may not be ‘out in the open’ as much as they were years ago but they are no more acceptable today.

We regularly assist our employee clients with issues of discrimination, and wanted to share some quick answers to our most frequently asked questions.

What does workplace discrimination look like?

Discrimination occurs based on a list of protected grounds, which are set out in human rights codes across the country (and in federal human rights law for federal employees). While the list varies between laws, these generally include grounds such as age, race, creed (similar to religion), gender identity and expression, marital status, family status, and disability just to name a few.  Workplace discrimination may not be as obvious as some of the incidents that we think about from the 1950s, and may be harder for those not discriminated against to detect. A perfect example are jokes or comments made around the office. Jokes about a colleague’s name, wardrobe, or lunch that they brought from home may be made without a second thought, but can cause that employee deep shame and embarrassment to be among their colleagues.  Workplace discrimination is not always about what is said, but sometimes it’s about what isn’t said. Policies that mandate attendance at certain dates or times may appear universal, but unless exceptions are made they may inadvertently prejudice those off for religious observance, or parents who are unavailable because of their childcare duties. Similarly, failing to invite or carelessly excluding an employee from a company social event because they are female, for example, is also an example of discrimatnion. 

Can a job advertisement tell me not to apply because I am a minority?

Absolutely not. A job advertisement should never prohibit anyone from applying based on one of the prohibited grounds of discrimination. Language such as ‘this nationality only’ or ‘this nationality not welcome’ is blatantly discriminatory, and yet still occurs in some instances (and often receives media attention when it does). 

What a job advertisement or listing can do is list certain skills or credentials that would be preferred, and also elements that are required for the role. A certain license or degree may be preferred, but candidates should still be allowed to apply for the role without them even though they may be unsuccessful. An additional language may be preferred or an asset, but it would be outright discriminatory to say that an applicant must be of that cultural background.

If a certain skill is required for the role as a bona fide occupational requirement, meaning that it is required in good faith and cannot be performed without, then it can be listed as a requirement on a job advertisement. For example a job listing for a driver position may be required to possess a valid driver’s license, or a mover with a moving company may be required to lift in excess of 50 lbs. These requirements may rule out certain applicants in protected classes, but are requirements of the role that cannot be otherwise accommodated.

What happens if I don’t land a job and I think that one of the protected grounds may have been a factor?

Unfortunately this happens all too often, and can be hard to prove. Women in their 20s and 30s frequently encounter incidents of being asked inappropriate questions about their marital status and family plans during recruitment interviews, with many intentionally removing wedding rings to avoid unwelcome questions. Individuals who commonly wear outfits or accessories that identify their religious or cultural affiliations will often hide those as well in order to avoid unwelcome discrimination. Non-binary applicants may uncomfortably opt for gender conformity for an interview in order to avoid being denied a role. 

Often employers who are consciously or unconsciously discriminating will hide behind the notion of ‘fit.’ An employer’s role is to interview prospective candidates, and determine who among them is the best fit for the role. To do this fairly however, employers should be asking primarily job and behaviour-based questions during these interviews, and should avoid any scrutiny of a prospective employee’s personal life. 

While discrimination in hiring may be difficult to prove, if you have been asked personal questions during an interview which you know with some certainty later prevented you from getting the job, speak with an employment lawyer. You may have a recourse to pursue the matter through the human rights tribunal, and the reward may be significant.

My co-workers keep making jokes and comments about my accent, is that acceptable?

No, especially not if it is not acceptable to you. This sort of conduct would qualify as bullying and harassment, and is protected against not only under human rights laws but also under some occupational health and safety laws as well. 

Bullying and harassment of employees is a serious problem in a workplace, and especially so when it falls under a protected human rights ground such as your place of origin. Workplaces are mandated to have policies that protect employees from harassment, and these policies are supposed to include mechanisms for how to report such incidents and how they will be dealt with. This will likely include an investigation into any harassment, an opportunity for the alleged harasser to share their account of the story, and a decision made about what sort of discipline (if any) will occur. 

If your employer is unable to or unwilling to assist in dealing with this sort of harassment, contact your employment lawyer to discuss your other options for handling the matter.

My employer tells me that I cannot have important religious holidays off. Is this discrimination?

The answer to this is yes. Our firm’s founder, Stuart Rudner, was actually inspired to go into employment law in the first place because he was inspired by hearing stories of his grandmother’s youth, and how her employers had forced her to work on sacred religious holidays when work was prohibited by her faith. 

While religious holidays may be difficult to schedule, they fall under a protected ground under human rights legislation that must be accommodated. It is important to note however that these accommodations may look different for every individual, and employers and employees can work together to come up with a workable solution. This can include options such as overtime, unpaid time off, lieu time, a compressed work week, or some combination thereof in order to make things work. 

Can an employer ask to see my citizenship?

No, and we recently spoke about a case involving exactly this issue. While an employer can confirm that you are legally eligible to work in Canada, they cannot discriminate against you based on your citizenship. 

In this example, a student in Canada on a temporary visa had lied on their application form and said they were permanently eligible to work in Canada because they knew that they would be denied an offer if they were truthful. The Ontario Human Rights Tribunal ultimately awarded the potential employee significant damages, both to cover wages that he would have earned if he had been rightfully hired in the position, as well as damages for the injury to his dignity (which some human rights tribunals are empowered to compensate). 

Ultimately citizenship is a protected ground like any other, and an employer does not need to know yours to confirm that you are legally eligible to work in Canada. We advise all of our employer clients as a matter of course to avoid asking for unnecessary personal information which can later be used as a basis for discrimination.

My coworkers have been bullying me about my race and my culture for years and it has not gotten any better – should I just quit?

Not without speaking to a lawyer first! While these stories are horrible to hear, they are unfortunately too commonplace, especially where an employer refuses to foster a healthy and cooperative working environment. 

If you have dealt with a longstanding history of discrimination in the workplace about your race/culture/accent/cultural dress and your employer has refused to take any action such as disciplining your harassers or implementing clear policies, you may have been subjected to what is known as a ‘poisoned work environment.’ This is where the workplace has been made so toxic by discrimination that you are unable to stay in the workplace and perform your duties. 

A poisoned workplace is prohibited under human rights law, and may be covered under other legal frameworks as well depending on the scenario. Before you resign, speak with an employment lawyer about the best way to make your exit and how you may be able to pursue a legal claim. While it is possible to pursue such a claim after you resign, it can be more difficult to do so, and this may be avoidable by strategizing with a lawyer first.

What should I do if I have been discriminated against at work?

If you have experienced discrimination in the workplace, your first turn may naturally be to the company’s HR department. In a larger workplace especially, HR is meant to function as something of a neutral third-party between individuals and can help with some simple dispute resolution.

If however HR has not been effective, or if the problem persists, your next call should be to an employment lawyer. Most employment lawyers are proficient in handling human rights issues in the workplace, and understand the serious impacts that discrimination can have on your ability to do your job effectively. They will take the time to explain your options to you, whether that is through their involvement in writing a letter to your employer, pursuing a complaint before the human rights tribunal, or potentially filing a legal claim. There is a great deal of strategy behind each approach, and a lawyer will work to help you determine which one is best for your particular situation.

What is the difference between a court and a human rights tribunal?

While courts and human rights tribunals are both empowered to deal with discrimination issues, the circumstances are often quite different. Courts primarily deal with discrimination as part of a larger matter, such as when it comes in the face of discrimination. Making a legal claim in court requires a specific ‘cause of action,’ or a wrongdoing that has been committed, and the person that has been wronged needs to be able to show financial damages. A termination may have happened as a result of discrimination, and lawyers will often help their clients claim for additional damages either under human rights law, or to punish the employer, but these amounts are certainly not guaranteed. 

A human rights tribunal, on the other hand, is structured precisely to hear individual complaints about human rights and discrimination. Some tribunals, such as in Ontario and British Columbia, are ‘direct access’ and allow individuals to make a complaint without legal representation (although having a lawyer is always advisable). Other provinces require legal representation. These tribunals usually have a lower cost of entry than courts, and are tailored to assess and award damages for discrimination. They may award monetary damages but also order employers to amend policies, participate in training, and other remedies. Unlike courts, some tribunals can also order employers to pay additional damages for injury to a person’s dignity. 

There are benefits and drawbacks to each approach, and an employment lawyer will walk you through which venue will be right for you.

Can I make a claim against my employer while I am still working there?

This is always a difficult question, and one that is hard to answer as a blanket statement.

If you are still employed and wish to keep working there except for the current situation, then attempting to solve the problem through any sort of internal HR mechanism may be the easiest way to go. HR may be able to find a workable solution that can diffuse any tensions. If however HR is unable to assist, then speak with an employment lawyer to see what your options are. Depending on your specific case there may be a way to resolve things peacefully without disrupting your employment.

Otherwise, if the problem is serious or one that persists, you may want to reassess whether that workplace is a healthy one for you. If your employer has created a toxic or poisoned workplace with their conduct (as noted above), then there may be an option to pursue a legal remedy that may also involve you leaving your workplace, so it is one to discuss thoroughly with your lawyer before taking any steps.

Every instance of discrimination is different, although none of them are acceptable. At Rudner Law our team has decades of experience assisting employees with various human rights issues, and we look forward to helping you find the right solution for yours.

Contact us today.