With about three-quarters of all human rights cases in Ontario stemming from the workplace, discrimination in the workplace should be understood by all employees and employers. While there are some instances where a type of discrimination may be legal, the remaining acts of discrimination in the workplace are heavily looked down upon by the Courts, and can leave Ontario employers facing significant damages at the Ontario Human Rights Tribunal. Employees who face discrimination at work often ask us if they can sue for discrimination in the workplace – this article outlines what to look out for, and who is protected under Ontario’s Human Rights Code (the “Code”).
Ontario Human Rights Code – Suing for Discrimination in the Workplace
In Ontario, the Code protects individuals from discrimination in various areas, with employment being one of them. When suing for discrimination in the workplace, the claimant must first show that they were discriminated against based on one of the following protected grounds under the Code:
- Citizenship
- Race
- Place of Origin
- Ethnic Region
- Colour
- Ancestry
- Disability
- Age
- Creed
- Sex/Pregnancy
- Family Status
- Marital Status
- Sexual Orientation
- Gender Identity
- Gender Expression
- Record of Offences
Establishing Discrimination under Ontario’s Human Rights Code
In order to establish discrimination under the Code, the employee must demonstrate the following criteria:
- As mentioned above, the employee must first demonstrate that they have a characteristic which is protected by the Code. This means that if the employee falls into any of the protected grounds and possesses the personal attribute of any of the Code grounds, they have likely satisfied the first criteria.
- The employee must then demonstrate that they experienced an adverse treatment, or impact, in the workplace. An example could be failure to promote even when merited, or another form of unfair treatment.
- The last criteria that the employee must meet in order to establish discrimination in the workplace is to demonstrate that the protected characteristic – one of the grounds – was a factor in the adverse treatment that the employee experienced.
Direct, Indirect, and Constructive Discrimination
Employers should be particularly mindful that discrimination does not always involve a direct act to take place in order for discrimination to have occurred. Indirect discrimination can also lead to the same finding by the Courts, where a passive comment carried out through another employee can have the same result. Employers can also be found liable for constructive discrimination, where a rule, practice, or policy singles out, or inadvertently results in unequal treatment of certain employees having a protected characteristic. Consulting with an experienced employment lawyer can assist employers in identifying any discriminatory practices within their workplace, and reduce liability before facing a Human Rights claim.
Contact Us
If you are an employer facing a Human Rights claim or need assistance with workplace policies, or an employee who believes you have been discriminated against, our team of experienced employment lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (866) 508-2548 or email us at info@achkarlaw.com and we would be happy to assist.
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