Area of Law: Employment Law
Answer # 630
What to do about workplace discrimination or harassmentRegion: Ontario Answer # 630
If you are being illegally discriminated against or harassed, but you believe that you can confront the person responsible, then you should do so. Immediately bring the problem to the attention of that individual, and tell the person in a polite but firm manner that their conduct is not acceptable.
Keep written records
Make a written note of your attempts to bring the conduct to an end and the person’s response. You should also keep a written record of the incidents of discrimination and harassment as they happen. This may become very useful if you have to prove your version of the events at a later time. You should record what happened, when it happened, where it happened, who the people involved were, whether any other people witnessed the same conduct, and what you and others did in response to this conduct.
Talk to your employer
Ontario employers are required by law to protect their employees from workplace harassment. Policies and procedures must exist to allow you to make complaints of workplace harassment, and to have those complaints investigated. This is the case even if your employer or supervisor is the harasser.
Take advantage of any internal complaint mechanisms such as internal discrimination and harassment dispute procedures, or grievance arbitration mechanisms in unionized settings. In many organizations, there are supervisors, managers, or human resources staff who are responsible for dealing with discrimination and harassment situations. In unionized settings, union officials may be able to help. However, if such attempts are not possible or are unsuccessful, you may wish to bring the conduct to the attention of the Human Rights Tribunal of Ontario, the Canadian Human Rights Commission, or a lawyer.
What if you cannot talk to your employer?
If you complain to your employer about workplace harassment and nothing is done about it, you may be able to quit your employment and still be able to sue your employer for wrongful dismissal. In order for you to be able to do this, the workplace harassment must be so unbearable that it amounts to constructive dismissal.
If you are fired as a result of making a complaint to your employer, this is called a reprisal, and is illegal. If this happens, you can either sue your employer for wrongful dismissal, or file a complaint under occupational health and safety laws.
Filing a human rights complaint
Complaints can be filed while employment is ongoing, or after it ends so long as the complaint is filed within the time-frame required by law. Complainants are required to mitigate their damages, which means that they must use all reasonable efforts to reduce their losses by looking for other employment.
In most workplaces, the employee has a choice between filing a human rights complaint and suing an employer for wrongful dismissal in court. The main difference between these two choices is that a court cannot order an employer to reinstate an employee who has been terminated. Generally, a court can only award monetary damages for wrongful dismissal, whereas a human rights tribunal can order broad remedies including reinstatement with back wages in appropriate circumstances.
Although all workplaces are equally governed by human rights laws, unionized employees may have alternatives to filing a complaint. Under labour laws, union workers may file a grievance against their employer under the non-discrimination provisions of the collective agreement between their union and employer. If unionized employees wish to complain of discrimination by their union, they may file an “unfair representation” complaint at the provincial or federal labour board.
Time limits for filing a complaint
You should be aware that there are time limits for filing a complaint. The Human Rights Tribunal of Ontario deals directly with all claims of discrimination filed under the Human Rights Code. An application can be filed up-to one year after the discrimination or harassment was experienced. If there was a series of events, you can file up to one year after the last event. There may be also be exceptions where the Tribunal will extend this time.
The Canadian Human Rights Commission’s time limit is also one year. You should be aware that contacting the Commission or sending intake forms to the Commission is not considered the same as filing a complaint which involves signing the formal complaint document. Beyond these time limits, the commissions may, in their discretion, refuse to deal with complaints if the reasons for delay are unreasonable or if the delay was caused in bad faith. For more information, contact the Human Rights Tribunal of Ontario, or the Canadian Human Rights Commission, whichever applies in your situation.
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