The Human Rights Code forbids discrimination in employment.
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Discrimination is poor treatment, based on a personal characteristic.
If the person can justify the poor treatment, then there is no discrimination.
The Code protects you in employment based on these personal characteristics.
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.
Are you a member of a union, employers’ organizations or occupational association? If so, these organizations also have a duty not to discriminate in membership.
This means that a complaint must include information showing:
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:
To make a complaint, the respondent’s conduct must have a negative effect on the complainant regarding their employment. This can include:
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.
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 absent on leave, and the reason for the leave is a disability.
For example: A cashier is fired because they cannot read the cash register without accommodation for a vision-related 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.
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.
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.
If the complainant proves that the respondent’s conduct had a 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 occupational requirement or BFOR).
To succeed with this defence, a respondent must prove three things:
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.
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.
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:
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.Factors an employer may rely on to establish undue hardship include:
For example, if a respondent relies on excessive cost, it must prove both the cost 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.
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.
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:
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).
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).