DISCRIMINATION IN THE WORKPLACE
Nobody wants to be a victim of discrimination. When it happens, the victims are left feeling helpless and paralyzed. Unfortunately, many employees experience this feeling on a daily basis. This is their reality.
Good employers will do everything in their power to prevent acts of discrimination from occurring. Most employers are successful when they create a zero tolerance atmosphere for discrimination in the workplace. Other employers are indifferent and uncaring about discrimination in the workplace. It is in this environment where discrimination is allowed to breed and grow.
When an employee finally complains about discrimination in the workplace, it is usually after being fed up at the lack of protection from supervisors or human resources professionals. At this stage, it is extremely expensive to correct the problem and root out the discrimination.
There is no question that prevention is the key to keeping discrimination out of the workplace. Secondly, the attitude of management and the human resources department will determine whether employees feel comfortable discriminating against other employees or not. When employers and employees understand the difference between legal and illegal discrimination, the workplace can change from a battleground to a meeting place.
Employers who knowingly allow discrimination to exist and manifest in their businesses are usually exposed to general and punitive damages.
We have addressed some areas of concern for employers and employees in the article below as an educational tool for our clients. These rights generally arise from the Ontario Human Rights Code (the “Code”).
Each employee or employer should seek a formal legal opinion from Gary Bennett prior to implementing a strategy based on the information below.
Legal and illegal discrimination
According to the Code, it is illegal to discriminate in employment on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status and handicap. Creed includes religion in its definition in the Code. Employment includes voluntary, part-time, full-time, temporary, contract, agency assignments, and probationary periods.
Other types of discrimination in employment are not protected under the Code and therefore they are not illegal. A good understanding of the difference between legal and illegal discrimination is important to prevent violations of the Code.
If employers or employees are concerned about whether an action or activity is legal or illegal discrimination, they should contact Gary Bennett at firstname.lastname@example.org for a consultation prior to taking any steps.
Employees have rights
The Code recognizes the inherent dignity and worth of every person. The Code provides for equal rights and opportunities without discrimination in certain sectors of society. Employment is one of the sectors.
The Code makes it the law that employment decisions should be based on each applicant's ability to do the job and not on factors that are unrelated to the job. For this reason, employers are advised to ask only questions that relate to the job, and not ask questions that might lead to discrimination during interviews, on application forms and at performance review times.
Discrimination in job advertisements
Employers must be careful when publishing job advertisements to fill a vacancy in the workplace. Job advertisements cannot directly or indirectly ask about race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or handicap.
When employers use these characteristics in order to qualify applicants for a job, it can unfairly prevent or discourage people from applying for a job. For example, a job that requires minimum height requirements may create discriminatory barriers for applicants who fit into one of the protected categories under the Code.
Employers must ensure that the duties and requirements of the advertised job should be reasonable, genuine and directly related to the job. For example, it is reasonable and job-related to require that a receptionist speak clearly in English, but it is not acceptable to require "unaccented English".
In some cases, employers may have a bona fide occupational requirement that an employee speak a certain language or be of a certain height in order to meet the requirements of the job. For example, a job in a restaurant which caters to a certain cultural group may require that the employee speak a language other than English or French. It may also require specialized knowledge of the people and culture celebrated in the restaurant. In these special circumstances, it may be legal to discriminate when seeking applicants for the job.
Discrimination in job application forms
Employer’s who include questions that relate directly or indirectly to the prohibited grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or handicap in their job application forms violate the Code. Employers who violate the Code risk having to defend a human rights complaint from applicants who were denied jobs. Applicants who stopped the application process for fear of discrimination may also bring a complaint against employers who discriminate using their application forms.
Similarly, employers must be careful when requesting medical examinations as part of the applicant screening process, even when this information is considered to be related to the employment. If employees are asked for this type of information, they should immediately contact Gary Bennett and learn how to protect their interests.
The types of questions that are acceptable are those that ask if it is legal for a candidate to work in Canada, or if the candidate has the necessary skills needed to perform the job such as an ability to speak fluently in French for a receptionist’s position. Employers who have questions about the legality of their application process should contact Gary Bennett to discuss these issues and other issues which may be considered illegal discrimination.
For more information on how to protect your interests, contact Gary Bennett at email@example.com to book a consultation.