Is causing offence discrimination?

The difference between taking offence and being disadvantaged from discrimination
By Tom Mitchell
|Canadian HR Reporter|Last Updated: 02/06/2017

Question: Does discrimination include someone taking offence at something in the workplace based on a protected human rights ground such as religion or sex? Does it matter if there was no intention to offend?

Answer: The primary focus of human rights legislation across Canada is to address the notion of distinctions that impose differential burdens, obligations or disadvantages upon a person because of an actual or presumed membership in a group, according to Toronto employment lawyer Stacey Ball in his book Canadian Employment Law.

An employee who takes offence at something in the workplace (for instance, a comment by another co-worker or some other negative occurrence), without anything more, likely does not constitute prima facie discrimination.

Rather, discrimination exists where an employer adopts a practice or rule that, on its face, discriminates on a protected ground, or when an employer’s seemingly neutral rules, standards or requirements have a discriminatory impact on people based on a protected ground under human rights legislation.

All employees should be judged on their individual attributes, skills and capabilities rather than on stereotypes, prejudice or assumptions.

Where an employer makes decisions regarding an employee based on preconceptions relating to a protected ground under human rights legislation, regardless of whether there is an intention to do so, such behaviour may constitute prima facie discrimination.

Further, discrimination is defined by reference to the effect on the complainant, rather than the motive or intent of the respondent. As such, the lack of an intention to offend is not a sufficient justification.

Where an employee is taking offence to a derogatory comment made in the workplace, such comment may constitute harassment, which would be contrary to human rights legislation if it is based on a protected ground.

A finding of discrimination or harassment is based on objective standards and factors, rather than a complainant’s subjective perceptions alone.

That said, employers must strive to create a workplace that is inclusive and respectful, and hold all employees to high standards of conduct.

Where an employer tolerates or condones behaviour in the workplace to which certain employees may reasonably take offence based on a protected ground, such behaviour can show that discrimination has been a factor in the way someone is treated.

Further, in such a workplace, employees may become more inclined to construe or perceive any negative occurrence or dissatisfaction through the lens of a protected characteristic, which may result in human rights exposure that is difficult for the employer to defend.

In sum, it is important for employers to hold employees to high standards of inclusion and sensitivity through effective written policies and codes of conduct that address harassment and respect in the workplace, which set out clear standards for employees to abide by, as well as any investigative and disciplinary procedures.

The employer’s position on discrimination and harassment should be clearly communicated, posted on bulletin boards and provided to all managers, supervisors and employees.

Having such policies in place can help employers to prevent harassment and offensive conduct, and reduce an employer’s liability if a human rights complaint is made.

Prompt and appropriate action when an internal complaint or problem is noted can further reduce an employer’s liability.

Tim Mitchell practises management-side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrosefulbright.com.

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