Laws have evolved to protect against unlawful discrimination
By Stuart Rudner
As they celebrate Martin Luther King Jr. Day in the United States, it seems timely to talk about human rights legislation in Canada and the ways in which it is designed to protect against discrimination.
Martin Luther King Jr. was a hero because he stood up to the widespread discrimination against persons of colour in the United States. It wasn't that long ago in history that slavery was widespread. And even more recently, it was not uncommon to see blatant discrimination against certain groups, including black people. This occurred in all aspects of life, including employment; sadly, discrimination still exists, though it is usually less blatant.
Human rights legislation is intended to protect those who have been traditionally disadvantaged or discriminated against and to ensure they are neither harassed nor the victim of discrimination in the future. Each piece of legislation sets out a specific list of characteristics that are not to be used as the basis for discrimination or harassment. They not include only the colour of a person’s skin, but also factors such as their gender, religion, place of origin, and sexual identity.
As society and societal norms evolve, so does the list of protected groups. Most recently, we have seen increasing attention paid to different forms of gender and sexual identity, as well as the evolving definitions of family status to include things such as the need to provide child or elder care. Furthermore, protection of those with disabilities, or perceived disabilities, has become more commonplace and also evolved to specifically include disabilities such as alcoholism and drug addiction.
It is important for all individuals to understand they cannot be discriminated against on the basis of any ground that is protected by human rights legislation. In Ontario, the list of protected grounds is as follows:
- creed (religion)
- place of origin
- ethnic origin
- sex (including pregnancy, gender identity)
- sexual orientation
- marital status
- family status
- receipt of public assistance
If any individual feels as though she has been the victim of discrimination or harassment on any of these grounds, she should either contact the body that is responsible for overseeing human rights in her jurisdiction, or get in touch with an employment lawyer like those within my firm. Accepting unlawful discrimination should not be an option.
Furthermore, employees and employers should understand that even if the protected grounds is just one small part of the reason that a decision was made, that is a breach of the Human Rights Code. For example, if an employee has a horrible disciplinary record, but the employer decides to fire him when he insists upon taking a day off to observe a religious holiday after being told he could not do so, then his religion formed at least part of the reason for the dismissal, and that is a breach of the Human Rights Code.
Similarly, if two applicants are equally qualified in the eyes of a potential employer, and it decides to hire the middle-aged male applicant as opposed to the female applicant of childbearing age because it does not want to have to deal with parental leave and childcare obligations, that is a breach of human rights legislation.
Most employers are savvy enough not to blatantly discriminate against protected groups. We rarely see job postings which explicitly exclude certain groups. Sometimes, we are contacted by individuals who are convinced they could never prove their case.
However, circumstantial evidence and patterns will sometimes be sufficient evidence to show what is happening. The evidence may disclose a trend, such as the fact that all downsizings impact older workers, or female employees, or that religious minorities are treated differently than those in the majority.
Either way, the reality is that there is rarely clear evidence of blatant discrimination; rather, the evidence is usually more subtle, but will still be satisfactory if discrimination can be shown to have existed. It is also important to remember that this is not a criminal prosecution and the standard of proof is a balance of probabilities and not beyond a reasonable doubt. Common sense can be used to show discrimination existed.
Of course, individuals must also bear in mind that human rights legislation protects specific grounds (such as the list set out above for Ontario), and does not prohibit discrimination generally. In fact, as I have written before, there is nothing inherently wrong with discriminating; all individuals tasked with hiring should discriminate by hiring the best candidates. Discriminating on the basis of qualifications, aptitude or relevant experience is not a breach of human rights legislation and is perfectly acceptable.
Before allegations of unlawful discrimination are made, individuals should ensure the decision was based upon protected grounds and not legitimate business reasons. However, where there is discrimination on the basis of protected grounds, individuals should not hesitate to enforce their rights. It is only by standing up for themselves, and what is right, that specific instances of discrimination will be addressed and attention will be brought to more widespread issues.