Frequently Asked Questions
DISCRIMINATION FOR EMPLOYERS
Discrimination is an ugly word to employers. No one wants to be accused of having discriminated against their employees, or having allowed employees to discriminate against each other under your watch. We understand that employers try their best to maintain a safe and friendly workplace, and when something happens to violate that, you want to be able to take swift and decisive action.
We also understand employers’ fears that when it comes to human rights law, employees often have the upper hand. When employees make a complaint before a human rights tribunal, employers are left on the defensive trying to prove their allegations untrue. All is not lost for employers, though. Good workplace policies, thorough team training, and consistent implementation can all help employers stand their ground.
Here are some of the most frequently asked questions that employers ask us about workplace discrimination.
Discrimination can take multiple forms, and not all of them are obvious. Discrimination is usually outlined in each province’s human rights legislation. While wording may vary slightly from province to province, most prohibit discrimination in employment based on a long list of protected grounds such as disability, gender or gender identity and gender expression, race, creed, marital status, family status, etc. It is, however, only discrimination based on these protected grounds which is unlawful. As an employer, you can easily discipline or even terminate an employee based on the colour of their shirt, but you cannot do so based on the colour of their skin.
Yet what most often gets missed about discrimination is when it happens subtly. Workplaces have evolved significantly over the years, and rarely is discrimination so painfully obvious as it used to be. While there are still very clear-cut instances that take place, discrimination may be more subtle, such as inviting only male employees to a sports-based social event, or monitoring employees of colour with more scrutiny than their white colleagues. Such behaviours are not uncommon in many workplaces but can still lead to a claim of discrimination in employment.
If you as an owner or manager are accused of discrimination, whether verbally or in writing, the first thing to do is to take a deep breath. This may have happened as a result of a business decision, or a comment that was taken the wrong way, or it may relate to something that you have absolutely no knowledge of. An allegation of discrimination does not automatically mean that you are guilty, but it does mean that you should act quickly to avoid any further trouble.
Consult with your employment lawyer to determine next steps. We help our clients assess the state of an allegation, whether it has been made verbally or in writing as a ‘warning shot’, or whether the employee has proceeded to file a civil claim or a complaint to the Human Rights Tribunal. If legal proceedings have not commenced then we may be able to help unwind the situation through some workplace remediation and enhanced training, and potentially other measures as well. If legal proceedings have commenced, we can represent you and assist you in compiling the necessary evidence to support your position before a court or tribunal.
The short answer is no – an employee can proceed directly to a court or tribunal before alerting an employer. Much like in harassment scenarios where any employee can report an incident to a manager or supervisor, employers should generally maintain a vigilant attitude towards any sort of discriminatory behavior that they witness in the workplace.
It may seem archaic, but off-colour jokes told in the lunchroom can become a dangerous game. Even though some employees may laugh it off, others may feel targeted and not say anything, but later claim that they were subjected to a discriminatory workplace environment. Proper staff training can help ensure that employees know what sort of conduct is not permitted, and will help reduce incidents of it happening, but employers should always stay vigilant.
This is sometimes the hardest part of being an employer. If an employee who has been with you for years, or even decades as a trusted or loyal employee is accused of doing something wrong, your natural instinct may be to stand by them and support them. While this may be mistaken for loyalty, choosing sides without a full assessment of the situation can be a dangerous move.
Take a pause to assess the situation and the allegations in full. If no legal claim has been commenced, this may be the perfect opportunity to conduct a small investigation, similar to one that would be conducted for an allegation of harassment. Make the effort to speak with the person who made the allegation to learn their story, and allow the subject of the allegations a chance to answer for their behaviour.
As a final note, the investigation must be conducted by someone objective in order to be properly effective. If a long-service employee is investigated by a manager who coincidentally happens to be a friend and colleague of theirs for decades, it is almost guaranteed that the complainant will claim that the investigation was biased. In these situations a third-party investigator can be a worthwhile investment.
Yes, they can, and they have options of how to pursue a legal claim. In order to pursue a civil claim (a lawsuit), an employee will claim that they were the victim of an employer’s wrongdoing, and will claim for money they believe they have lost because of this wrong. Discrimination is often added to a wronful dismissal claim if an employee believes that they were terminated for a discriminatory reason, such as marital or family status. Their lawyers will often recommend adding a human rights claim onto their claim and will seek damages for the discrimination as well as the main wrongdoing.
The other, and more common option for pursuing a claim for discrimination is before a human rights tribunal. Each province has its own legal framework for human rights, and the federal government has its own as well, where employees can claim damages for workplace discrimination. Some provinces, such as B.C. and Ontario, allow individuals to make a claim as individuals, whereas other tribunals require you to have legal representation.
These human rights tribunals are bodies that are specifically designed to deal with allegations of discrimination. Employers should not take them lightly – they are often sympathetic to employees, and employers will be left to defend themselves and disprove any allegations. In Ontario for example, the Human Rights Tribunal often awards damages not only for the wrongdoing itself, but for damages for ‘injury to dignity, hurt feelings, and self respect.’ Aside from monetary damages, tribunals may also incorporate other remedies such as renewed workplace training.
This is of course the most common human rights question that comes up, and one that can often serve as a ‘hot potato’ issue. The short answer is yes, but CAREFULLY.
The law states that an employee cannot be discriminated against in their employment because of those protected grounds noted above, which include disability, marital status, and family status. Terminating someone’s employment directly in relation to these would almost unquestionably be seen as discriminatory, and the financial penalties before a court or tribunal could be steep.
However, the law also recognizes that employers are required to make business decisions. In those cases these sorts of terminations are defensible provided that an employer can show that it was done for business reasons and not because of the protected ground. For example if an entire department is shutting down but one of the employees happens to be on parental leave, that may be sanctioned as a valid business reason so long as they are not the only employee let go while the others are moved to new positions.
Otherwise, the law requires that employees who may be unable to work due to a protected ground to be accommodated. For example if an employee breaks a bone and is unable to perform part of their duties, modifying their role or accommodating them in a new role for a short time will be seen as less discriminatory than an outright termination. Similarly, the law is clear that an employee who is on pregnancy or parental leave should be able to return to their role following their leave, and during that leave should have the same opportunities as if they had remained in the workplace (salary increases, promotions, etc.).
The bottom line is that you cannot dismiss them because they are on leave, but you can dismiss them while they are on leave for legitimate business reasons.
Allegations of discrimination are difficult because they put employers into the hot seat. Once an allegation has been made, especially formally through legal proceedings, it is an employer’s role to either deny the allegation outright, or at the very least show how the situation has been handled properly.
While the business case noted above may be helpful in cases such as those involving termination, in other instances the best defence may be to show that swift action was taken upon first learning of an incident. If an employer can show a tribunal for example that training had taken place, parties were spoken to, warnings and or discipline were issued, and the matter was dealt with quickly and thoroughly then it may impact their financial burden.
Also, just because an employee alleges that they have been discriminated against, this does not make it so. Sometimes employees will make these allegations baldly, and have zero evidence to support their claim. For example if an employee alleges that they have been discriminated against based on their age, and your workplace statistics show that you have a workforce predominantly older than they are, that might significantly weaken the employee’s claim. While an employer accused of discrimination does not have to prove that they did not discriinate, since the burden of proof is on the complainant, the practical reality is that your position will be much stronger if you can disprove the allegation.
Employers are often uneasy about having to pay out financial damages in a discrimination case, especially when the alleged incidents happened without their knowledge. While damages are often awarded, they are usually proportional to the incidents themselves.
If a matter goes before a court as part of a separate action, damages may be awarded in the most extreme circumstances, but are less likely for smaller incidents. Courts have been known to punish employers’ bad behaviour, but these sorts of damages are usually awarded for more serious misdeeds.
Human rights tribunals, however, may take a heavier hand. They will look closely at each allegation and how it was handled by the employer, but their primary purpose is to protect individuals who have been wronged. Provinces such as Ontario and British Columbia can also compensate individuals for ‘injury to dignity,’ so an employee’s damages may be increased if they can show a Human Rights Tribunal that they were emotionally damaged from the discrimination.
As an employer, the way that you run your workplace is your domain. If your business began with a small team in an environment that felt like family, a discrimination policy may have been the furthest thing from your mind. Yet as businesses grow, and employees enter and exit a business, paying attention to discrimination should become a high priority.
Like most preventative issues in a workplace, the best way to protect your business against discrimination claims is a combination of strong policies and even stronger training. Policies serve as your employees’ guidebook, and they allow you to set out the rules of your workplace and the punishments for not following those rules, which can include discipline and even dismissal for repeated infractions.
Those policies need to be thoroughly incorporated into your workplace though, and that is where the training element comes in. Incorporate talk of discrimination into your employee training, such as into your harassment training, and ensure that employees know what sort of conduct is simply not acceptable. Employees may still act badly, but the best prevention is when they know what not to do and what the ramifications will be.
Finally, employer’s actions, rules, and policies that are conducted in good faith, and that may be part of a bona fide occupational requirement, should not be considered discriminatory. If a policy or rule restricts a certain class of workers based on a protected ground such as age or disability, and the rule is issued in good faith and the worker cannot be reasonably accommodated, this is not viewed by courts and tribunals as discriminatory conduct.
Every instance of discrimination is different, and the specific facts may make a tremendous difference in how you choose to proceed. Our team at Rudner Law can set up a consultation and learn about how we can advise you in instances of discrimination, and how to best protect yourself moving forward.
Contact us today.