Our human rights legislation is very clear: you cannot discriminate on the basis of citizenship or country of origin, so you should never have a field on your application form that asks where they're from, you should never be asking whether they are Canadian citizens, and you should never ask that in the hiring process at all.
You have probably seen this in the news – five employees have filed a $35-million lawsuit against the Canadian Security Intelligence Agency (CSIS) alleging a toxic workplace culture poisoned by racism, homophobia and anti-Muslim discrimination. These allegations are yet to be proven in court. However, it is important to have a discussion about the employment law issues arising from this, as workplace harassment and discrimination remain one of the most serious issues facing employers and employees today.
Employers must ensure that their workplaces are free of discrimination and harassment.
Such behaviour will no longer be tolerated and must be immediately addressed with proper investigation. Otherwise, employers expose themselves to significant liability for violating employees’ human rights, but also, bad publicity, the risk that they will lose employees without the ability to replace them with quality individuals, decreased employee productivity, low morale, and increased absenteeism.
Allegations against Canada’s Spy Agency: Toxic Workplace Culture
The “high-performing, long-term” employees of CSIS allege that they have been harassed and discriminated against on the basis of religion, race, ethnic or national origin, and gender or sexual orientation. This includes allegations that one employee was called “fag” and “homo” and another was told that “all Muslims are terrorists”. In addition, they allege that they were shut out of recognitions and promotions, warned not to file complaints, and threatened with reprisals and further harm when they raised concerns. Further, the employees allege that their Charter rights have been violated and that CSIS was negligent in failing to protect its employees from the harm caused by the abusive environment.
Specifically, one of the employees – who has 15 years of service with CSIS, and is a gay man with a Muslim partner – claims that he was forced to take an extended sick leave due to the alleged discrimination and harassment. Among the allegations are that he received an email from one of his managers stating: “careful your Muslim in-laws don’t behead you in your sleep for being a homo”. Although his complaint to his employer led to an investigation, which concluded he was harassed in breach of CSIS’s code of conduct, he alleges that no actions were taken against the harassers and no attempt was made to fix the ongoing issues. He alleges that instead, he was told to stop attending management meetings, was removed from a promotional board, and lost professionalism marks on his performance review. In other words, he alleges that his employer had not only harassed and discriminated against him, but also engaged in reprisals due to his complaint. For further details, you can read the Statement of Claim filed in Federal Court.
Although CSIS is a federal employer and hence federal legislation would be applicable, it is helpful for employers and employees to understand the law on workplace harassment and discrimination in general.
The Law on Workplace Harassment and Discrimination
Human rights legislation across Canada, such as the Canadian Human Rights Act and the Ontario Human Rights Code, provide for equal opportunity to all citizens and prohibit discrimination based on various protected grounds including race, national or ethnic origin, colour, religion, age, sex, sexual orientation, and disability. Despite such legislation , and despite the fact that such behaviour is not only legally but morally wrong, discrimination and harassment continues to poison workplaces.
Discrimination is defined as adverse treatment of a person on the basis of a protected ground. In order to prove discrimination, an employee must show that there is a connection between the negative treatment and one of the protected grounds (e.g. being denied a promotion because you are Muslim, even if that is only part of the reason).
Once an employee establishes prima facie discriminatory conduct, the onus shifts to the employer to justify the conduct based on an exemption available under the relevant legislation. For instance, an employer may be able to justify a distinction based on a protected ground by showing that it is a bona fide occupational requirement (BFOR), i.e. a skill or characteristic essential to a job, without which the job cannot be performed. In order to establish a BFOR, the employer must show the following:
- the standard was rationally connected to job performance;
- the standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that work related purpose; and
- the standard is reasonably necessary to the accomplishment of that legitimate purpose.
An example of this would be a requirement for pilots to have good eyesight, as it is necessary for them to be able to perform their job safely.
Workplace harassment is defined under Ontario’s Occupational Health and Safety Act (OHSA) as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”, and includes workplace sexual harassment. Employers are required to undertake risk assessments and develop programs and policies on workplace violence and harassment, including how and to whom an individual is to report an incident of workplace harassment and how allegations will be investigated and reported. In addition, employers are now obligated to conduct appropriate investigations into incidents and complaints of workplace harassment. If the proper policies and processes are not in place, or if investigations are not conducted in an appropriate manner, employers can be severely penalized. The Ontario Ministry of Labour has issued a code of practice to help employers comply with the OHSA’s harassment provisions.
In order to prevent and respond to workplace harassment and discrimination, employers would be well-advised to follow these practice tips:
- P Policies and processes should be written, communicated, enforced and updated as needed.
- R Retain records of harassment and discrimination complaints, investigation processes and reports.
- A Act in a timely manner.
- C Confidentiality should be maintained.
- T Train your employees.
- I Investigate complaints properly before taking disciplinary action.
- C Communicate findings of the investigation with the parties, and outline what steps will be taken to resolve the matter.
- E Ensure a safe work environment free from harassment, discrimination, and reprisals.
We regularly advise employers to address these issues in a proactive manner and, when facing specific instances, act quickly and decisively to remedy the situation, in order to help avoid unnecessary and significant liability. If you are an employer, we can help you prevent or address discrimination and harassment concerns.
Similarly, if you are an employee who feels targeted by workplace harassment or discrimination, we can advise you with respect to your rights and offer potential solutions to ensure you do not remain a target. We can also represent you before the Human Rights Tribunals or civil courts as needed. If you are an employee in need of assistance, we can help.