Are you experiencing discrimination or harassment at work?

In my employment law practice, I often hear allegations from employees about discrimination and harassment in their workplace. Though I recognize that not all workplaces treat employees fairly and equitably, not all ill-treatment is harassment and discrimination in law.

The Ontario Human Rights Code (the “Code”) is the main legislation concerning discrimination and harassment in the workplace (though it should be noted that the Occupational Health and Safety Act also addresses workplace harassment and violence). The Code covers every aspect of the employment relationship, including recruitment, training, transfers, promotions, dismissals and layoffs. It also covers workplace practices, such as the administration of pay, hours of work, holidays, benefits, shift assignments, discipline and performance evaluations.

Under the Code, harassment is defined as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment includes workplace bullying and can involve words or actions that are offensive, embarrassing, humiliating, demeaning or unwelcome. Discrimination is not defined in the Code, but has been interpreted to mean any form of unequal treatment that results in disadvantage. Discrimination may be intentional or unintentional and may involve actions that are directly discriminatory (e.g. refusing to hire or promote members of a particular racial group), or indirectly discriminatory (e.g. creating a workplace dress policy that unintentionally offends an employee’s religious practices).

For the Code to recognize discrimination or harassment (and for an employer’s actions to be ‘illegal’), the discrimination or harassment must be based one or more of the protected grounds listed in the Code, namely:

• Race or colour;
• ancestry, place of origin, or ethnic origin;
• citizenship;
• creed (i.e. religious beliefs);
• sex and sexual orientation;
• gender identity and expression;
• age, record of offences;
• marital status;
• family status; or
• disability.

If an employee experiences ‘discrimination’ because her manager favours some employees over others, this type of discrimination may be morally wrong and unfair (and in my opinion, contrary to the smooth running of the workplace), but it may not be *discriminatory* in the eyes of the law. However, if the manager is favouring some employees based on any of the grounds listed above (e.g. favouring employees who belong to a particular race group), then this conduct could be discriminatory under law and the employer may be subject to penalties under the Code.

As with all legal matters, it is important to remember that proof (i.e. evidence) of the discrimination or harassment is required. Though the Human Rights Tribunal recognizes that discrimination and harassment can be subtle, to be successful in alleging discrimination or harassment, an employee will need demonstrable evidence. Typically, an employee’s ‘hunch’ or feelings are not enough. And the existence of discrimination based on an prohibited ground, may not be enough to prove an employer’s violation of the Code. For example, a manager who promotes a male worker over a female worker may be acting discriminatory on the prohibited ground of ‘sex’, but it could also be that the employee who is being promoted has greater skill, ability or a longer tenure. If there is a reasonable, non-prohibited reason for the unfair conduct, then an employee’s discrimination complaint may not be successful.

Lastly, an employer may have valid business reasons to discriminate. For example, if a truck driver is required to travel through long stretches of roads both day and night, a reasonable job requirement would be that the employee be physically fit with sharp eyesight. An applicant with poor eyesight, may not be suitable for this job and may be denied the job opportunity. In such cases, the employee may not be successful in alleging discrimination on the prohibited ground of ‘disability’.

If you believe you have experienced discrimination or harassment contrary to the Code, or if you are an employer who is the subject of a human rights complaint, contact us – we can help!