What is Discrimination in the Workplace?Team
Discrimination in the workplace is a common problem. According to a 2021 study, 17% of the job applicants and 9% of the workers faced workplace discrimination in one way or another.
Despite having clear laws against workplace discrimination, people still face discriminatory behaviour from employers. It makes one wonder, what exactly is workplace discrimination? How should an individual or an organization deal with it? And what even is the law concerning discrimination in the workplace? This article will answer these questions and explain what you can do if you face discrimination in the workplace.
What Does Discrimination Mean?
Discrimination generally refers to the unjust and prejudicial treatment of individuals based on factors such as their faith, race, social class, or gender. Discrimination can be direct or indirect and can happen anywhere – including your workplace.
What many understand to be morally discriminatory may not be legally discriminatory. The kinds of discrimination prohibited in the workplace are typically outlined by local human rights statutes. The Ontario Human Rights Code for example does not define discrimination but does define the grounds for which individuals cannot be discriminated against. Discrimination in the workplace can come in many shapes and forms but is usually more than just simple unfairness.
Types of Discrimination in the Workplace
Discrimination in the workplace can occur in many forms, especially when the employer does not address it or is part of an overall poisoned workplace.
Some of the most common forms of direct discrimination in the workplace include:
- Failure to accommodate an employee’s disability needs;
- Pay inequality based on a prohibited ground of discrimination;
- Unfair workplace policies that systemically disadvantage specific vulnerable groups;
- Demotion, discipline and termination of a new parent before, during or after parental leave;
- Fewer advancement opportunities for people of particular groups;
- Policies forcing employees to retire at a certain age;
- Refusal to hire an employee based on an irrelevant and prohibited ground of discrimination;
- Derogatory language, harassment and other toxic behaviour in the workplace based on prohibited grounds of discrimination; and
- Subjecting employees to alcohol or drug testing without taking proactive steps to determine if they have a substance abuse problem that requires accommodation.
Discrimination in the Workplace
These types of discrimination are non-exhaustive, but they are the more obvious examples. Discrimination can also be indirect, subtle and systemic. This can include unconscious biases, microaggressions, and other forms of unintended but still discriminatory behaviour. Some examples include:
- Asking to touch someone’s hair when they come from a particular ethnic or another background;
- Subjecting people from a traditionally marginalized or minority backgrounds to frequent questions about their culture, way of life or other topics exclusively relating to their background;
- Scheduling workplace events and opportunities during ethnic and religious holidays celebrated by one or more employees;
- Refusing to acknowledge and use an employee’s preferred pronouns in the workplace; and
- Enforcing workplace policies that disproportionately disadvantage people from marginalized groups.
What makes mistreatment in the workplace discriminatory and unlawful is misunderstood in many cases. Human rights law does not protect employees from all unfair treatment in the workplace – it specifically prohibits employers from subjecting their employees to unfair treatment based on prohibited grounds of discrimination.
What are the Prohibited Grounds of Discrimination?
What makes discriminatory behavior illegal in both provincial and federal jurisdictions in Canada is the basis of discrimination. The prohibited grounds of discrimination are outlined in both provincial and federal legislation. Where discrimination occurs in the workplace based on the prohibited grounds in provincial or federal jurisdiction, employees have a claim for breach of their Human Rights.
Each province has its own respective Human Rights statute. In Ontario, the Code prohibits discrimination on the basis of:
- Place of origin
- Sex and pregnancy
- Ethnic group
- Marital status
- Family status
- Gender identity
- Gender expression
- Sexual orientation
- Receipt of public assistance
- Record of offences
For Human Rights matters falling within federal jurisdiction, the Canadian Human Rights Act prohibits discrimination on the basis of:
- National or ethnic origin
- Sexual orientation
- Gender identity or expression
- Family status
- Genetic characteristics
- A conviction for an offence for which pardon was granted or a record suspension was ordered
What Are the Remedies for Discrimination?
If you face discrimination in your workplace, you have access to remedies and damages to address your economic losses and injury to your dignity, feelings and self-respect. In Ontario, the Ontario Human Rights Tribunal or a Court may decide whether any individual or organizational employer violated the Code by discriminating against an employee or otherwise allowed for discrimination to occur in this workplace. Upon a finding of discrimination in breach of the Code, a decision-maker may award monetary and non-monetary remedies. Monetary damages include lost wages and special expenses flowing from the discrimination, and general damages for injury to dignity, feelings and self-respect. Non-monetary remedies can include orders for human rights and sensitivity training, apologies, posting a copy of the Code in the workplace, and in some rare cases similarly reinstatement of employment.
Decision-makers in Ontario have a lot of discretion to fashion a remedy that addresses the discrimination and makes the victim whole. Taking all the above into consideration, you might be wondering now how you might be able to truly identify if you are being discriminated against in the workplace.
When Does Discrimination Occur in the Workplace?
If you are subjected to unfair, prejudicial or other mistreatment you suspect is related to the prohibit grounds under the relevant Human Rights legislation, Therefore you likely have a claim for discrimination. But when does it become discrimination in the workplace? More importantly, when is your employer liable for it?
You might be wondering if working from home means your employer can technically discriminate against you. You’re in your own house after all. If your co-worker makes racist or other discriminatory remarks in a chatroom, it couldn’t possibly be workplace discrimination because you’re not in the office. Wrong. The Code applies to the treatment you face in the course of your work for an employer. A workplace can be digital or physical – certainly it can be as simple as an environment where your employer is in control of the space and the people in it. Your employer has a legal obligation to maintain a discrimination-free workplace.
A Report on Abuse in the Workplace
Employers can be liable for discrimination in the workplace, even if they did not engage directly in the discriminatory behaviour. Failing to properly investigate or properly punish workplace discrimination is a basis to hold the employer responsible for it. If you report discriminatory behaviour to your employer and they do nothing – they have condoned and maybe perpetuated discrimination in the workplace. How do you address this? If you know you’ve been discriminated against, what are the next steps?
How to Address Workplace Discrimination
To clarify If you feel you are being discriminated against, there are steps you should take to protect and enforce your rights, including:
- Gather any documents and evidence you have of discrimination in the workplace.
- File a formal complaint with your employer and provide as much detail as possible.
- If your employer does not investigate or adequately address the discrimination, book a consultation with a lawyer.
- Provide your evidence to the lawyer and explain the situation in as much detail as possible to determine the best next steps.
- Negotiate with your employer for damages and remedies.
- If negotiation fails, start a Human Rights complaint to have the matter heard before a Tribunal or Court for damages and the other remedies you seek.
These steps are non-exhaustive, and every case might require a different approach. The best thing to do is to consult with an experienced human rights lawyer. Above All, It is important to act quickly, to address discrimination in the workplace, as there are strict limitation periods to bring Human Rights claims in both provincial and federal jurisdictions.
Discrimination in the workplace occurs every day. Unjust and prejudicial treatment based on legally prohibited grounds is illegal. It can come in many obvious and subtle forms, but the discrimination that violates the code entitles employees to damages and remedies.
If you suspect you’ve been discriminate against in your workplace, you should consult with a lawyer as soon as possible. Our experienced human rights lawyers at Achkar Law regularly advise both employee and employer clients throughout the human rights process.
Whether you are an employer or an employee needing assistance with addressing or preventing discrimination in the workplace our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we will be happy to assist.
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Disclaimer: This blog is not intended to serve as or should be construed as legal advice and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call (800) 771-7882 or email [email protected]