Can You Sue (Your Employer) For Discrimination in Canada?achkarlaw-admin
With approximately 75% of all human rights cases in Ontario originating from workplace conditions, it is important for both employees and employers to have a clear understanding of workplace discrimination. While there are certain situations where a form of discrimination might be legally permissible, most instances of workplace discrimination are strongly disapproved of by the Courts. Such acts can result in substantial penalties for Ontario employers when brought before the Ontario Human Rights Tribunal.
Employees who experience discrimination at work often inquire about their ability to pursue legal action for workplace discrimination. This article addresses the question, “Can I sue for discrimination in the workplace?” It does so by outlining what individuals should look out for and explaining who is protected under Ontario’s Human Rights Code (the “Code”).
Suing For Discrimination In The Workplace
In Ontario, the Code protects individuals from discrimination in various social areas, with employment being one of them. When suing for discrimination in the workplace, the claimant must first show that they were discriminated against based on one of the following protected grounds under the Code:
- Place of Origin
- Ethnic Region
- Family Status
- Marital Status
- Sexual Orientation
- Gender Identity
- Gender Expression
- Record of Offences
Establishing Discrimination Under Ontario’s Human Rights Code
To establish discrimination under the Code, the employee must demonstrate the following criteria:
- As mentioned above, the employee must first demonstrate that they have a characteristic that the Code protects. This means that if the employee falls into any of the protected grounds and possesses the personal attribute of any of the Code grounds, they have likely satisfied the first criteria.
- The employee must then demonstrate that they experienced an adverse treatment or impact in the workplace. An example could be failure to promote even when merited or another form of unfair treatment.
- The last criteria that the employee must meet in order to establish discrimination in the workplace is to demonstrate that the protected characteristic – one of the grounds – was a factor in the adverse treatment that the employee experienced.
Direct, Indirect, and Constructive Discrimination
Employers should be particularly mindful that discrimination does not always involve a direct action in order for discrimination to have occurred. Indirect discrimination can also lead to the same finding by the Courts, where a passive comment carried out through another employee can have the same result. Employers can also be found liable for constructive discrimination, where a rule, practice, or policy singles out or inadvertently results in unequal treatment of certain employees having a protected characteristic. Consulting with an experienced employment lawyer can assist employers in identifying any discriminatory practices within their workplace and reduce liability before facing a Human Rights claim.
If you are an employer facing a Human Rights claim or need assistance with workplace policies or an employee who believes you have been discriminated against, our team of experienced human rights lawyers at Achkar Law can help.