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Back to Basics Part 2: What human rights protections do employees have?

Published on September 12, 2007 by Donna Seale

Generally speaking, all human rights legislation in Canada establishes the right of every Canadian to equality of opportunity in employment and the right to be free of discrimination and harassment in the workplace.  So, what does this mean in reality?  It means that employees and persons who can establish a connection to a workplace (more on this in a moment) are protected from:

1. being treated differently either as an individual or as part of a group on the basis of a protected characteristic (these characteristics or grounds vary slightly provincially and federally but generally cover things such as ancestry, religion, sex, age, sexual orientation, disability, marital or family status, source of income, political belief, etc.) unless there is a good faith and rational job-related reason for the apparent differential treatment;
2. being harassed on the basis of a protected ground (the definition of harassment also varies across the country); and
3. retaliation or reprisals.  For example, an employer cannot threaten or take action against an employee if that employee chooses to complain about his workplace to a human rights commission.

In addition, employers (and unions) have a duty to accommodate employees.  This means:

1. if a workplace rule or procedure puts an employee at a disadvantage or creates barriers for that employee on account of a prohibited ground, the employer must make every reasonable effort, short of undue hardship, to remedy that disadvantage.  As an example, a seemingly simple rule that requires all employees to work a rotating shift that falls on Friday and Saturday evenings might impact a worker who is of a religion that observes a Friday evening sabbath.  An employer would have to consider that employee’s situation to determine what can be done to accommodate his religious needs, yet ensure the employer can still run a productive workplace.  Be aware, though, that the courts hold employers to a very high threshold when it comes to accommodation.  In a future post, I’ll be discussing undue hardship;
2. employers have to proactively identify and change any rules, practises, procedures, etc. that have or may have a discriminatory impact on employees based on a prohibited ground.  In other words, employers should not be sitting back and waiting for employees to tell them that they have a workplace rule that might violate human rights legislation — employers have to be on a constant watch for that themselves and make the appropriate changes when a potential problem is found. 

Because human rights legislation is protective in nature, when it comes to "employment" human rights commissions generally take a very broad approach to defining that word.  So, not only are established employees protected from discrimination in the workplace, people who are interviewing for jobs, who are temporary or casual workers or even workers who are not actually your workplace’s employee but that of an employment agency are also protected.  Commissions examine every situation on a case-by-case basis.  As an example, if a person feels that she wasn’t hired because of that question she was asked during her interview about the fact she walks with a limp, she would likely be able to file a complaint under the Code.  She might not have become your employee, but there is still a connection to the possibility of employment sufficient to bring it under human rights legislation.

It is important to note that, in Canada, discrimination does not have to be intentional for it to violate human rights legislation.  So, you might not have intended to treat the interview candidate differently because of her limp but the fact you focused on her disability in the interview and later chose not to hire her will often be enough to make you come into conflict with the Code.

As you can see, human rights legislation offers employees significant protections in the workplace.  Employers need to be aware of these rights not only to avoid coming into conflict with human rights legislation in their particular province or federally but in order to foster healthy workplaces.  At the end of the day, it is all about ensuring workers are treated on the basis of their personal merits, not on the basis of stereotypes or inappropriate generalizations.

Related posts:

1. Back to basics: where do workplace human rights come from?
2. Full human rights protections extended to First Nations peoples
3. Using social networking sites in the hiring process: smart move or human rights trap? Part Two

Categories: Human rights basics

5 Comments » Click here to view

5 Responses to “Back to Basics Part 2: What human rights protections do employees have?”

1. Nancy Murray says:

   October 14, 2008 at 2:00 pm

   Would it be considered discrimination if a co-worker received a different wording in their letter for the same offence as mine?
2. pippa says:

   October 20, 2008 at 2:32 am

   my boss has denied me to take any holiday whilst my boyfreind has a holiday..(he works for the same company) this means whilst we are both working for the same company, we will nevar be allowed to holiday together, although it says nothing in either of our contracts about this rule.
   What can i do?
3. Donna Seale says:

   October 21, 2008 at 8:50 pm

   @Nancy: not necessarily. Employers often write disciplinary letters specific to the entirety of an employee’s circumstances. In other words, not just relating to the particular disciplinary matter but also covering off any prior disciplinary history. If you think there is potential discrimination in the letter you received, you should have someone from your local human rights commission look at it along with whatever you are aware the other letter set out.
4. Donna Seale says:

   October 21, 2008 at 8:52 pm

   @Pippa. You require advice specific to your circumstances. I would suggest you contact your local human rights commission and/or your local employment standards office.
5. stephen says:

   May 24, 2009 at 12:15 pm

   Recently our employer has requested full medical disclosure from all employees in our department. In our large unionized workforce only our department has been requested to do this. The forms are to be completed by a : MD, audiologist , and optometrist. The results are faxed to the company physician via secure fax. Then the company physician sends a report about each employees records back to our department. Our department will then screen the results to determine fitness for duty or to perform duties.
   The deadline is June 1st 2009 . I and many other colleagues believe that this is a direct violation of the OHRC’s workplace harassment law under section #9. As a union rep I would like to put an end to this practice immediately. Our union has put in a policy grievance, but that can be a lengthy process that may not protect the confidentiality of employee’s medical information.
   I would be interested to hear any suggestions you may have that may put the issue to rest quickly. Would my members be safe if they refuse to submit the information by JUNE 1, 2009?