Members of protected groups not untouchable

Canadian laws require no one suffer adverse treatment because they are a member of a protected group – but they do not protect members of protected groups from adverse treatment

Stuart Rudner

By Stuart Rudner

I often hear HR professionals and business people complain certain employees are “untouchable.”

They believe an employee that is, for example, disabled, pregnant or a member of a visible minority is entitled to extra protection from discipline or dismissal. However, the law does not extend any more protection to such employees than it does to anyone else. Our laws require no one suffer adverse treatment because they are a member of a protected group; they do not protect members of protected groups from adverse treatment.

There are many examples of situations where courts and tribunals have rejected claims because there was no evidence the complainant had been adversely treated because they were a member of a protected group. The most recent example is the decision of the British Columbia Human Rights Tribunal in Hales v. ICBC.

Hales, 63, was hired as a temporary employee in April 2011. His employment was terminated on July 8, 2011. Hales claims his employment termination occurred one day after he sent an e-mail message to his supervisor, an ICBC Business Initiatives Advisor, in which ongoing workplace issues were addressed and in which he mentioned potential health effects on him “at his age”.

As the tribunal set out:

[9] ICBC claims that in early July 2011, several issues surfaced regarding Mr. Hales’ behavior and attitude in the workplace... 

[10] ICBC submits that these issues were raised with Mr. Hales at a meeting with his supervisor on July 5, 2011.  During this meeting, ICBC claims that Mr. Hales reacted very negatively to the issues raised.  ICBC claims Mr. Hales did not accept any of the criticism and became very defensive in his response.

[12] Mr. Hales’ employment was terminated on July 8, 2011.  He claims that proof that age was a factor in ICBC’s termination of his employment arises from the July 7, 2011 e-mail message in which he expressed the possibility of age-related health concerns; the temporal proximity of raising his possible age-related health concerns in the e-mail; evidence of irregularities in ICBC’s act of termination itself.  Mr. Hales contends that all this documentary evidence creates a reasonable inference that age was a factor in ICBC’s termination of his employment and is evidence of the bad faith behaviours on the part of ICBC before during and after his termination of employment...

[16] In addition to alleging the foregoing facts, ICBC claims that no part of Mr. Hales’ employment was terminated because of his age.  ICBC also claims that Mr. Hales’ employment was not terminated because of the e-mail on July 7, 2011 although this type of communication raised concerns with respect to his style and “fit” within the workplace at ICBC.

[17] ICBC submits that Mr. Hales’ reference to his age in the e-mail to his supervisor on July 7, 2011 did not result in his termination as alleged in the complaint.  ICBC claims that it did not pay any attention to Mr. Hales’ age at the time of his hire and based its decision on his skills and experience.

The tribunal chose to dismiss the complaint. The key portion of its decision is as follows:

[38] In order to amount to discrimination under the Code, there must be a nexus between a prohibited ground of discrimination and the negative treatment alleged.  It is not enough that a complainant be a member of a protected group and experience adverse treatment: Ingram v. Workers’ Compensation Board, 2003 BCHRT 57, para. 20.  The facts alleged must be capable of supporting a reasonable inference that the adverse treatment alleged is related, in whole or in part, to a prohibited ground of discrimination: Schnurr v. Douglas College, 2007 BCHRT 40, para. 23, upheld Schnurr v. Douglas College (1 February 2008), Vancouver SO72033 (B.C.S.C).

There are two important points for employers to remember in this context. The first is individuals who are members of protected groups under human rights legislation are not “untouchable.”

In the recent recession, many such employees were dismissed as part of downsizing efforts. Just because someone was, for example, on parental leave when their department was eliminated, they did not avoid being let go.

The second point is that if the adverse treatment, such as dismissal, is even partially related to a protected ground, then the employer will have breached the applicable legislation. Employers must be sure that decisions are entirely unrelated to protected grounds.

Stuart Rudner is a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or You can also follow him on Twitter @CanadianHRLaw and join his Canadian Employment Law Group on LinkedIn.

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