Workplace Discrimination

By Merovitz Potechin on Friday July 31, 2020.

According to the Ontario Human Rights Commission, about three-quarters of all human rights claims in Ontario come from the workplace. Considering we spend so much of our time at work, it is important to work in a healthy environment, where all people are treated equally. And although workplace discrimination is a persistent problem for Black, Indigenous and People of Colour employees, all employees and employers share in the responsibility for ensuring workplaces are free from discrimination.

The Ontario Human Rights Code (OHRC) upholds every person’s right to be treated equally (including with respect to their employment), and without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. It is important to remember that the OHRC, as human rights legislation is quasi-constitutional, meaning it has special status. It supersedes other statutes and in the event of a conflict between employment legislation such as the Employment Standards Act and human rights legislation, the human rights legislation prevails.

Workplace discrimination can take many forms, some of which are easier to spot. It is important for employers and employees alike to be aware of the different ways workplace discrimination can present itself so they can swiftly intervene. Discrimination can be:

Direct Workplace Discrimination

This occurs when a policy draws a distinction based on a person’s association with a particular group (i.e. women should not apply). This is usually the easiest type of discrimination to spot.

Indirect Workplace Discrimination

Also known as Adverse Effect Discrimination. This occurs when a policy that is neutral on its face has a disproportionate effect on a particular group based on an enumerated ground. For example, grooming policies are often laden with indirectly discriminatory language. Black women experience adverse effect discrimination when they are told to style their hair a certain under the guise of professionalism. Many workplaces would be well served to review their grooming policies to make sure they are not indirectly discriminating against a particular group.

Systematic Workplace Discrimination

This occurs when patterns of behaviour and policies or practices which are part of the structure of an organization perpetuate discrimination on an enumerated ground. The Supreme Court of Canada discussed systemic discrimination in CN v. Canada (Canadian Human Rights Commission). In that case, an alarming majority of CN employees held negative attitudes about women in the workplace, resulting in women being treated differently. Although none of the company’s procedure were designed to promote discrimination, the cumulative effects were discriminatory.

Harassment

This occurs when comments or actions based on an enumerated ground are unwelcome or should be known to be unwelcome. Harassment typically requires a course of conduct, however, a single serious incident can constitute harassment.

Poisoned environment

This occurs when an individual or group of individuals are subjected to conditions of employment that are quite different from those experienced by individuals who are not part of an enumerated group. The comments or actions of any person in the environment have an impact. Therefore co-workers, supervisors, and customers can all engage in conduct that poisons the environment. A poisoned environment will exist where the employer fails to address stereotypical language, slurs, comments, jokes, or graffiti which is discriminatory in nature.

How we can help

With this information, I hope you feel empowered to tackle discrimination in your workplace. We are all responsible for making sure our workplaces are safe and healthy for everyone.  If you have questions about workplace discrimination, please contact the Employment Law Group and Merovitz Potechin LLP.