Human Rights and Duties in Employment
Everyone has the right to be free from discrimination in employment, including in advertising, hiring, firing, wages, hours of work, benefits, and the work environment.
Employment discrimination refers to poor treatment regarding employment, based on a personal characteristic.
If the poor treatment is justified, then there is no discrimination.
These are the personal characteristics protected in employment:
Employers and others have a duty not to discriminate regarding employment. This includes a duty to take all reasonable steps to avoid a negative effect based on a personal characteristic. This is called the duty to accommodate. Unions, employers’ organizations and occupational associations also have a duty not to discriminate regarding membership.
What poor treatment is employment discrimination?
A complaint must set out facts that, if proved, could be discrimination under the Human Rights Code against each person named as a respondent.
This means that a complaint must include information showing:
- The complainant has a personal characteristic (or is perceived to have a characteristic) protected under the Code.
- The respondent’s conduct had a negative effect on the complainant regarding employment.
- The personal characteristic is a factor in the negative effect.
Personal characteristics that are protected from discrimination in employment
To make a complaint of discrimination regarding employment, the complainant must have a personal characteristic protected under the Human Rights Code or be seen to have one.
For example, the complainant has a disability or the respondent thinks that the complainant has a disability.
The personal characteristics protected in employment are:
Negative effect regarding employment
To make a complaint, the respondent’s conduct must have a negative effect on the complainant regarding their employment. This can include:
- Refusing to hire
- Denying a promotion
- Denying benefits
- Refusing to return someone to work
- Harassment based on a personal characteristic that negatively affects the work environment or leads to negative job-related consequences
- Ending employment
A negative effect can arise where a person is treated the same as others, but this has a negative effect on them.
For example: A job requirement to work a specific day could negatively affect a person whose religious belief requires that they do not work on that day.
An employer fires a person who is unable to perform part of their job due to a disability.
There is a duty to accommodate to avoid a negative effect based on a personal characteristic.
For there to be discrimination in this kind of situation, the respondent must reasonably be aware that the complainant needs accommodation.
For example: The complainant told the respondent they need accommodation or it is clear that the complainant needs accommodation.
Connection between negative effect and personal characteristic
Poor treatment is discrimination only if it is connected to a personal characteristic. This means that a personal characteristic must be at least a factor in the negative effect. It does not need to be the only factor or the most important factor. A complainant does not need to show that the respondent meant to discriminate or was motivated by discrimination.
A person may believe that a personal characteristic was a factor, but a complaint must set out facts supporting the belief. Examples:
The respondent identifies the personal characteristic.
For example: A manager uses insults based on a personal characteristic, or gives the characteristic as a reason for the poor treatment.
The respondent’s actions affect the complainant because of a personal characteristic.
For example: Someone is fired because they have been on sick leave due to a disability.
Note: This is enough to file a complaint. However, if the respondent justifies its action by showing it acted in good faith and took all reasonable steps to avoid the negative effect, then there is no discrimination.
The circumstances show the characteristic is a factor. (The facts support a “reasonable inference”.) For example:
A person aged 60 is equally or more qualified for a job, but the job is offered to a person aged 25.
A person who is black is disciplined more harshly than others for conduct that is similar.
A woman is fired shortly after telling her boss she is pregnant.
Note: This is enough to file a complaint. However, the respondent may have an explanation. At a hearing, a complainant must prove the characteristic was a factor in the negative effect.
Who can be named as a respondent in an employment complaint?
- The employer. The employer is responsible for the workplace and is usually the respondent in an employment complaint.
- A person who has some authority or control over the complainant’s working conditions. For example, a person could be named if they:
- made the decision to fire the complainant based on a personal characteristic
- influenced a decision that discriminated against the complainant
- are a person in authority or control who sexually harassed the complainant
A person who applied a discriminatory policy as part of their job, or who delivered a letter firing the complainant would not normally be named.
- An employment agency. An employment agency is responsible if they refuse to refer a person for employment.
- A union. A union may be named if the complaint alleges discrimination in the collective agreement or that the union impeded an employer’s accommodation efforts.
How can poor treatment in employment be justified? (Defences)
There is one main defence to discrimination in employment. That is where the respondent proves their conduct was justified. There are also some specific defences.
- Justification defence (bona fide occupational requirement)
- Defence if criminal charge or conviction is related to the employment
- Defence for bona fide seniority scheme
- Defence for bona fide retirement, superannuation, pension plans, or group or employee insurance plans
Can each of these bullets, if clicked, scroll the reader to the heading below?
There is also an exemption for non-profit organizations and for special programs, including employment equity programs.
Justification defence: bona fide occupational requirement (BFOR)
If the complainant proves that the respondent’s conduct had negative effect on them regarding their employment, and that a personal characteristic was a factor in the negative effect, this is called a prima facie case of discrimination.
Even if a complainant proves a prima facie case of discrimination, a respondent may argue that there is no discrimination because its conduct was justified (i.e., based on a bona fide occupationalrequirement or BFOR).
To succeed with this defence, a respondent must prove three things:
- There is a legitimate job-related purpose for the respondent’s conduct
In some cases, a respondent’s conduct involves a defined standard or requirement that affects the complainant, such as a requirement about working hours.
The respondent must identify the (non-discriminatory) purpose for the standard or conduct in question.
For example, an employer’s standard or conduct may be for the purpose of ensuring the safe or efficient performance of the job.
The respondent must also show how that purpose relates to the requirements of the job.
In many cases, the complainant may not dispute that the respondent’s conduct was based on a legitimate, job-related purpose.
- The respondent adopted the standard or acted in good faith, believing the standard or conduct is necessary to achieving the purpose
This means that the respondent adopted the standard or acted to accomplish its job-related purpose, and did not mean to discriminate. In many cases, the complainant may not dispute that the respondent acted in good faith with no intent to discriminate.
- The respondent’s standard or conduct is reasonably necessary to the purpose, such that the respondent could not accommodate the complainant (or others sharing their characteristics) without undue hardship
This means that the respondent fulfilled its duty to accommodate. To do so, the respondent must prove that it took all reasonable and practical steps to avoid the negative effect.
This includes proving:
- What the respondent did to explore options to find a reasonable result
- Why further steps were not reasonable or practical (would result in undue hardship)
- The respondent’s basis for concluding that it could not accommodate the complainant without giving up the legitimate job-related purpose or incurring undue hardship
Proof that a respondent reasonably accommodated a complainant’s disability may also require the respondent to show that it took any necessary steps to inform itself of the nature of the complainant’s medical condition, prognosis, and capabilities (including limitations or restrictions) for work.
It is not enough to point to some hardship and say no more could be done. A respondent must prove undue hardship by giving evidence about the effect that the accommodation would have on the respondent.
For example, if a respondent relies on excessive cost, it must prove both the costs of the requested accommodation, and how this cost would result in undue hardship to it given its financial situation. It is not enough to rely on the high cost of accommodation without showing that the respondent cannot reasonably afford it.
Factors an employer may rely on to establish undue hardship include:
- Financial cost
- Morale of other employees
- Interchangeability of the work force and facilities
- Size of the employer’s operation
A complainant must participate in the search for accommodation. The respondent may establish a justification defence (BFOR) if it proves that it was taking all reasonable and practical steps but the process failed because the complainant did not reasonably participate, or that it offered reasonable accommodation but the complainant rejected the offer.
Defence if criminal charge or conviction is related to the employment
If a complainant’s criminal charge or conviction was a factor in the negative effect, it is a defence if the criminal conviction was related to the employment. The Tribunal will consider all of the circumstances of the case, including:
- Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer’s ability to carry on its business safely and efficiently?
- What were the circumstances of the charge and the details of the offence involved? (For example, how old was the complainant when the events in question occurred, and were there any extenuating circumstances?)
- How much time has passed between the charge and the employment decision?
- What has the complainant done during that time? Has the complainant shown any tendencies to repeat the same kind of behaviour? Has the complainant shown a firm intention to rehabilitate themself?
Defence for bona fide seniority scheme
A bona fide seniority scheme is a defence on the ground of age. For example, a seniority scheme may provide that less senior employees will be laid off before more senior employees. This will tend to affect younger workers. This is not age discrimination as long as the scheme was developed and applied in good faith (that is, without meaning to discriminate).
Defence for bona fide retirement, superannuation, pension plans, or group or employee insurance plans
This defence applies to the grounds of sex, age, marital status, and physical or mental disability. The Code allows employers and insurance companies to make distinctions that would otherwise be discriminatory so long as the plan is bona fide (made honestly and without meaning to discriminate).