Perspective Discrimination: A Lesser-Known Form Of Bias

In Ontario, the Human Rights Code (the “Code”)protects non-unionized, provincially-regulated employees against discrimination based on the following protected grounds:

•  Race,  
• Ancestry,  
• Place of origin,  
• Ethnic origin,  
• Citizenship,  
• Creed,  
• Sex,  
• Sexual orientation,  
• Gender identity and expression,  
• Age, 
• Family status, and  
• Disability.  

Where an individual is personally subject to adverse treatment based on a protected characteristic, this is known as “direct discrimination”.  

 But you might wonder whether an employer can be held liable for discriminating against an employee for a characteristic that they do not actually possess but are merely perceived as possessing. In other words, can an employer be accountable for perceptive discrimination in the workplace – or put differently, can they be held accountable for treating an individual less favourably than they would others based on their subconscious perception bias? 

What Is Perceptive Discrimination

Perceptive discrimination applies when an individual is treated unfairly because it is believed that they have a certain protected characteristic under the Code. For example, an employer assumes or believes that an employee has a disability. That employer then proceeds to make discriminatory comments to that employee based on this perception when, in fact, the employee has no disability.  

The key question in this instance (all other legal and other issues aside) is whether the employee can sue the employer for discrimination based on disability. More generally, can discrimination be established under the Code based on the perception that a disability exists? 

Is Perceptive Discrimination Protected Under The Code?

It is not clearly stated in the Code that all protected grounds may include discrimination on the perception of those characteristics, and the case law shows that it does vary on a case-by-case basis.  

For instance, under the Code, an employee is protected from discrimination based on ‘presumed disabilities.’ The wording of the Code makes clear, at least with regards to discrimination based on disability, that employees have: “… the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability” [emphasis added].  

With respect to the other protected grounds, while section 5 of the Code protects against discrimination “because of” the aforementioned grounds, which may suggest that perceptive discrimination is included, the ‘believed to have or have had’ wording is absent.  

Indeed, the test for making out a prima facie case of discrimination set out by the Supreme Court of Canada in Moore v British Columbia (Education), 2012 SCC 61 at para 33 requires that:  

• The applicant has a protected characteristic under the Code. 
• The applicant suffered a disadvantage or adverse impact; and 
• The protected characteristic was a factor in the disadvantage or adverse impact.  

Nevertheless, the broad working of the provision in Ontario appears to leave open the possibility that a discrimination claim may be brought even if that individual does not actually possess the protected characteristic in question.  

In AA as Represented by their Litigation Guardian TA v Burlington Training Centre, 2022 HRTO 1361, the Tribunal held that an individual had established discrimination, at least in part, based on his perceived sexual orientation, which was a factor in the adverse treatment by the Respondent. While this application dealt with sections 1 and 12 of the Code, those provisions include similarly broad language. It is thus fair to assume that the Code may prohibit perceptive discrimination.  

What Should I Do If I Think My Employer Is Engaging In Perceptive Discrimination?

If you believe your employer has engaged in perceptive discrimination against you, it is important to keep a record of the incidents that have occurred. It is recommended that employees also report any instances of harassment on the basis of perceptive discrimination to their human resources department. Depending on the circumstances, employees should try and give employers an opportunity to address the discrimination and harassment. However, if you feel your concerns have been dismissed or not adequately addressed, it is recommended that you reach out to a lawyer. 

This is not to say that employees have to wait to contact a lawyer if suffering from perceptive discrimination. Employment and Human Rights Lawyers can help employees better understand their rights and entitlements. As discussed, perceptive discrimination may vary and is determined on a case-by-case basis, and depending on the circumstances of your case, you may be entitled to damages under the Code.  

Contact Achkar Law

If you are facing discrimination or perceptive discrimination in the workplace, don’t face this challenging situation alone. Achkar Law’s workplace discrimination lawyers are here to help. Schedule a consultation today to understand your rights and explore your options for taking action. Invest in your peace of mind and future by reaching out to our experienced legal team.

Toll-free: 1 (800) 771-7882 | Email: [email protected]

 

 

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