Area of Law: Employment Law
Answer # 628
What is workplace discrimination?Region: Ontario Answer # 628
What is workplace discrimination?
To discriminate means to make distinctions. Discrimination in itself is not prohibited by human rights laws. Discrimination is prohibited only based on certain grounds in certain situations. Discrimination does not have to be intentional for it to be against the law. It is the effect on the individual that matters. One of the situations where discrimination can be unlawful is in relation to employment.
Employment is interpreted very broadly in human rights cases, and includes casual, part-time, seasonal and contract employment and extends to probationary and volunteer situations. There does not have to be a written employment agreement for an employment relationship to exist. In fact, a human rights complaint can be filed before employment has begun, if there is a reason to believe that employment was denied because of illegal discrimination.
Unlawful discrimination can also come about when a rule applied equally to everybody has a disproportionate effect on a particular group due to their unique needs. For instance, only hiring employees of a certain height may constitute discrimination on the basis of sex since women are generally shorter than men. Also, discrimination can be unlawful in work-related situations, such as refusal to provide membership or equal treatment within a trade union or vocational association, if the refusal is related to a prohibited ground.
Work-related situations where unlawful discrimination may occur
The Ontario Human Rights Code guarantees “equal treatment with respect to employment” for all employees, and applies to every aspect of the working environment, including
- Part-time and temporary employment
- Job Promotions
- Dismissals & Layoffs
- Hours worked
- Performance reviews
Prohibited grounds of workplace discrimination
Both federal and provincial human rights laws prohibit discrimination and harassment based on certain characteristics in certain situations. The prohibited grounds of workplace discrimination are:
- Place of origin
- Ethnic origin
- Religion or creed
- Gender (including identity and expression)
- Handicap or disability
- Sex (including pregnancy and breastfeeding)
- Sexual orientation
- Marital status
- Family status
- Criminal record (which has not been removed by a pardon or record suspension)
- Record of offences (in employment only)
- Receipt of public assistance (in housing only)
It is important to understand that the law places restrictions on these prohibited grounds only in certain situations. For example, an employer cannot fire an employee for going on pregnancy leave. This is unlawful discrimination based on sex. However, there are situations which seem to be discriminatory but are not because human rights laws have provided an exception to the rules. For example, employers are entitled to discriminate against employees who do not have a certain attribute, where that attribute is a genuine requirement of the job, such as perfect vision, certain educational designations, or work-related experience.
Other forms of workplace discrimination
Harassment is also a form of discrimination. Harassment means that the ‘harasser’ acts in an annoying or abusive manner that is known or ought reasonably to be known to be unwelcome by the other person. For more information about harassment, refer to topic 629 What is workplace harassment?
Sexual harassment is a particular type of gender or sex based discrimination that occurs in employment settings. For more information, refer to topics # 617 – 621.
You have many options if you are experiencing discrimination at work, including: starting a lawsuit in court, filing a grievance, bringing a complaint to a labour board, or filing a complaint with a human rights commission. For more information, visit the Ontario Human Rights Commission.
A criminal record will appear on an employment police check and will affect your ability to get or keep a job. To erase your criminal record, learn more at Pardon Partners. It’s easier than you think.
If you are involved in an employment dispute and require legal advice and assistance, contact our preferred paralegals Nicola (Nick) Giannantonio Legal Services.
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