Discrimination is the unfair or prejudicial treatment of people and groups based on characteristics such as race, gender, age or sexual orientation. That’s the simple answer. But explaining why it happens is more complicated. Show
The human brain naturally puts things in categories to make sense of the world. Very young children quickly learn the difference between boys and girls, for instance. But the values we place on different categories are learned – from our parents, our peers and the observations we make about how the world works. Often, discrimination stems from fear and misunderstanding. Stress and healthDiscrimination is a public health issue. According to the 2015 Stress in America Survey, people who say they have faced discrimination rate their stress levels higher, on average, than those who say they have not experienced discrimination. That’s true across racial and ethnic groups. Chronic stress can lead to a wide variety of physical and mental health problems. Indeed, perceived discrimination has been linked to issues including anxiety, depression, obesity, high blood pressure and substance abuse.1 Discrimination can be damaging even if you haven’t been the target of overt acts of bias. Regardless of your personal experiences, it can be stressful just being a member of a group that is often discriminated against, such as racial minorities or individuals who identify as lesbian, gay, bisexual or transgender (LGBT). The anticipation of discrimination creates its own chronic stress. People might even avoid situations where they expect they could be treated poorly, possibly missing out on educational and job opportunities. Discrimination, big and smallLaws are in place to protect people from discrimination in housing and employment.
Unfortunately, discrimination still occurs. According to Stress in America Survey results, issues related to employment are the most commonly reported experiences of major discrimination across ethnic groups. Yet experts say that smaller, less obvious examples of day-to-day discrimination – receiving poorer service at stores or restaurants, being treated with less courtesy and respect, or being treated as less intelligent or less trustworthy – may be more common than major discrimination. Such day-to-day discrimination frequently comes in the form of “microagressions” such as snubs, slights and misguided comments that suggest a person doesn’t belong or invalidates his or her experiences. Though microagressions are often subtle, they can be just as harmful to health and well-being as more overt episodes of major bias. People on the receiving end of day-to-day discrimination often feel they’re in a state of constant vigilance, on the lookout for being a target of discrimination. That heightened watchfulness is a recipe for chronic stress. Dealing with discriminationFinding healthy ways to deal with discrimination is important, for your physical health and your mental well-being. Focus on your strengths. Focusing on your core values, beliefs and perceived strengths can motivate people to succeed, and may even buffer the negative effects of bias. Overcoming hardship can also make people more resilient and better able to face future challenges. Seek support systems. One problem with discrimination is that people can internalize others’ negative beliefs, even when they’re false. You may start to believe you’re not good enough. But family and friends can remind you of your worth and help you reframe those faulty beliefs. Family and friends can also help counteract the toll that microagressions and other examples of daily discrimination can take. In a world that regularly invalidates your experiences and feelings, members of your support network can reassure you that you’re not imagining those experiences of discrimination. Still, it’s sometimes painful to talk about discrimination. It can be helpful to ask friends and family how they handle such events. Your family and friends can also be helpful if you feel you’ve been the victim of discrimination in areas such as housing, employment or education. Often, people don’t report such experiences to agencies or supervisors. One reason for that lack of reporting is that people often doubt themselves: Was I actually discriminated against, or am I being oversensitive? Will I be judged negatively if I push the issue? Your support network can provide a reality check and a sounding board to help you decide if your claims are valid and worth pursuing. Get involved. Support doesn’t have to come from people in your family or circle of friends. You can get involved with like-minded groups and organizations, whether locally or online. It can help to know there are other people who have had similar experiences to yours. And connecting with those people might help you figure out how to address situations and respond to experiences of discrimination in ways you haven’t thought of. Help yourself think clearly. Being the target of discrimination can stir up a lot of strong emotions including anger, sadness and embarrassment. Such experiences often trigger a physiological response, too; they can increase your blood pressure, heart rate and body temperature. Try to check in with your body before reacting. Slow your breathing or use other relaxation exercises to calm your body’s stress response. Then you’ll be able to think more clearly about how you want to respond. Don’t dwell. When you’ve experienced discrimination, it can be really hard to just shake it off. People often get stuck on episodes of discrimination, in part because they’re not sure how to handle those experiences. You might want to speak out or complain, but you’re not sure how to go about it, or are afraid of the backlash. So instead, you end up ruminating, or thinking over and over about what you should have done. But rumination can make things worse. Researchers have found that while traumatic experiences are a significant cause of anxiety and depression, people who ruminate, or dwell on, those negative thoughts and experiences report more stress and anxiety.2 In a calmer moment, it might be helpful to talk over the ways you can cope with similar experiences in the future. Try to come up with a plan for how you might respond or what you could do differently next time. Once you’ve determined how to respond, try to leave the incident behind you as you go on with your day. Seek professional help. Discrimination is difficult to deal with, and is often associated with symptoms of depression. Psychologists are experts in helping people manage symptoms of stress and depression, and can help you find healthy ways to cope. You can find a psychologist in your area by using APA’s Psychologist Locator Service.
Discrimination is not defined in the Code but usually includes the following elements:
Many people wrongly think that discrimination does not exist if the impact was not intended, or if there were other factors that could explain a particular situation. In fact, discrimination often takes place without any intent to do harm. And in most cases, there are overlaps between discrimination and other legitimate factors.
In many cases, discrimination results from a tendency to build society as though everyone is the same as the people in power – all young, one gender, one race, one religion or one level of ability. Failing to consider many perspectives, or not planning to include all people, may result in barriers to access for persons identified by the Code. Such barriers, even if unintended, are discrimination. b) Negative attitudes, stereotypes and biases lead to discriminationIt is a principle of human rights that persons should be judged on their individual attributes, skills and capabilities, rather than on stereotypes, prejudice or assumptions. Prejudice is a strong dislike or negative feelings held by someone about another person or group. Negative attitudes and stereotypes may lead to harassment and discrimination, and affect a person’s ability to both get and succeed in a job. These types of attitudes can be expressed as "isms" (ageism, sexism, racism, etc.) and refer to a way of thinking about other persons based on negative stereotypes about race, age, sex, etc. When people are stereotyped, all people in the group are given the same characteristics, regardless of their individual differences. "Isms" refer mainly to attitudes, while discrimination involves actions. An example is treating someone in an unequal way due to one of the grounds listed in the Code. While racism, sexism, etc. will not always lead to discrimination under the Code, they are often the cause of discrimination and harassment. Therefore, it is important from a human rights perspective to address acts of discrimination and also ageist, sexist, racist, etc. attitudes that exist in a workplace. c) There are many forms of discriminationWhen asked to identify discrimination, many people think only of situations of open or “overt” harassment. As well as harassment, the Code prohibits many other kinds of discrimination, such as systemic discrimination or failing to accommodate Code-related needs. Discrimination can take many forms. In some cases, discrimination may be direct and intentional (for example, if a person or group treats another person differently on purpose because of a Code ground). This type of discrimination generally arises from negative attitudes and biases relating to that ground.
Discrimination exists when rules, standards or requirements that appear to be neutral have a discriminatory impact on people identified by the Code. In some cases, direct discrimination takes place through another person or other means. Discrimination can also occur when an employer adopts a practice or rule that, on its face, discriminates on a prohibited ground.
In these three examples, the people giving the instructions can be held responsible for discriminating. The persons who followed the instructions to discriminate have also engaged in discrimination – they cannot claim to have just been following orders. d) Discrimination because of associationSection 12 of the Code states that a person cannot be discriminated against or harassed because of his or her association, relationship or dealings with another person identified by a ground in the Code. This protection exists whether or not the person being discriminated against is identified by the same ground in the Code.
See also Section III – “Grounds of discrimination.” e) Subtle discriminationIn some cases, discrimination is subtle or covert. Intent or motive to discriminate is not a necessary element for a finding of discrimination – it is sufficient if the conduct has a discriminatory effect. Subtle forms of discrimination can often only be detected after looking at all of the circumstances. Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture, may lead us to think that discrimination based on a ground in the Code was a factor in how the person was treated.
It can be hard to determine if subtle discrimination is a factor in such situations. You may need to investigate and analyze the total context of the alleged behaviour, comment or conduct. This would include thinking about evidence that compares how others were treated in a similar situation, or evidence that a pattern of behaviour exists. Discrimination based on a Code ground may be found even if there were other legitimate reasons for decision or treatment, as long as it was one of the factors. The following types of treatment in employment may indicate subtle discrimination based on the Code:
The following actions may also be hints that racial discrimination is happening:
Discrimination may be found to occur even when there has been no overt or implied reference to a Code ground. However, if comments linked to a Code ground are made, they can be further evidence that discrimination has been a factor in the way someone is treated. Similarly, a finding of discrimination may be made when someone makes negative comments about a person advocating for human rights protections or equitable treatment. f) Systemic discriminationOne of the more complex forms of discrimination is systemic or institutional discrimination. Systemic discrimination refers to policies or practices that appear to be neutral on their surface but that may have discriminatory effects on individuals based on one or more Code grounds.
Systemic discrimination can overlap with other kinds of discrimination, such as harassment, and may arise from stereotypes and biases. The definition of systemic discrimination used by the Commission includes the following three elements:
People can experience systemic discrimination differently based on the intersection of various grounds of discrimination, such as gender, disability, place of origin, and so on. In the example above, a racialized or single woman with a disability would be at a triple disadvantage. The following three considerations can be used to identify and address systemic discrimination:
Use these three elements as a basis for actively monitoring for systemic discrimination and measures to address it. This is discussed in more detail in Section IV-1e) – “More about how to proactively identify and address systemic discrimination.” g) Workplace rules that are not “bona fide”Workplace rules, policies, procedures, requirements, qualifications or factors may not be openly discriminatory, but they may create barriers to achievement and opportunity. This kind of discrimination is specifically prohibited under section 11 of the Code. In the past, this type of discrimination was viewed as a specific category called “constructive discrimination” or “adverse effect discrimination.” Now, the impact on an individual or group is no longer viewed as the only determining factor – the focus is equally on both the rule and its impact. If the rule is not inclusive and does not accommodate individual differences to the point of undue hardship, it is discriminatory.
To be upheld as non-discriminatory, or a bona fide (bona fide means “good faith” or “genuine”) occupational requirement, an employer must show that the standard, factor, requirement or rule:[6]
As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship. It is not enough to keep discriminatory standards and supplement them by accommodating people who cannot meet them. This ensures that each person is assessed according to his or her own personal abilities, instead of being judged against presumed group characteristics.[7] For more general information, see Section III-2m) – “Failing to design inclusively, remove barriers and accommodate.” See also Section IV-8 – “Meeting the accommodation needs of employees on the job.” h) Reprisal and threat of reprisalEvery person has a right to claim and enforce his or her rights under the Code, or start or take part in proceedings under the Code without reprisal or threat of reprisal. These protections are provided in sections 7(3) and 8 of the Code. Reprisals for (a) claiming or enforcing a human right, (b) refusing to discriminate directly or indirectly, or (c) rejecting sexual advances or solicitations are violations of the Code. The protections from reprisal apply to complainants, witnesses, advisors, representatives of complainants and witnesses, investigators and decision-makers or management who support a person raising human rights issues. People are protected from reprisal when they file a formal human rights claim. They are also protected when a person exercises rights available under the Code or under an employer's internal human rights policies. Employees should be able to raise human rights issues and have them dealt with fairly. They should not be punished for having done so. Employees who seek accommodation related to grounds such as creed, disability or family status should not be treated as less valuable or less committed to their work as a result. The following situations would be viewed as reprisal contrary to the Code:
It is also a contravention of the Code to take reprisal or retaliate against someone who refuses to follow instructions to discriminate against another person, or who helps someone to enforce their rights under the Code.
i) HarassmentSubsection 5(2) of the Code states that: Harassment on any of the Code grounds can amount to discrimination. Although not directly mentioned in section 5(2), harassment because of sexual orientation has been found to be a form of discrimination based on sexual orientation that is a violation of the Code. Persons can file complaints alleging harassment because of gender identity under the ground of “sex.” Harassment may arise from stereotypes based on the intersection of more than one Code ground.[8]
“Harassment” refers to comments or actions that are unwelcome or should be known to be unwelcome. This definition, set out in subsection 10(1) of the Code, includes both subjective and objective elements:
The person being harassed does not need to object to the harassment for there to be a violation of the Code. Some persons who are being harassed do not object because they are afraid of what will happen if they speak out. Sometimes people respond by becoming angry, using strong language or becoming emotional. Many people being harassed try to cope by playing along or responding the same way in return. These are all common ways for a harassed employee to keep some form of personal power in a vulnerable situation, to regain favour or just to get by. Tribunals have recognized that these types of responses are understandable and do not defeat a claim of harassment.
To assess these situations accurately, you will need to apply the subjective and objective elements of the test and be aware of the power dynamics that are happening.
Harassment requires a “course of conduct.” This means that a pattern of behaviour or more than one incident is usually needed. However, one serious incident may create a poisoned work environment – see the next section for more details. When a person is singled out and treated differently because of a Code ground, even if the differential treatment does not include clear reference to the Code ground, there may still be a Code violation.
Employers, people acting for employers, co-workers and other persons in the workplace, such as clients, are prohibited from harassing employees at work. Management has the responsibility to prevent and address situations that may allow harassment to develop or continue. Employers also may be liable in a human rights complaint if they knew of, or should have known of, harassment and could have taken steps to prevent or stop it. A person who has the authority to prevent or discourage harassment may be found responsible or "vicariously liable." For more information about organizational responsibility, see Section III-4 and Section IV-12 about dealing with human rights allegations in the workplace. j) Poisoned work environmentInsulting or degrading comments or actions in a workplace based on Code grounds may cause employees to feel that the workplace is hostile or unwelcoming. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a “poisoned environment.” Even one comment, if serious enough, may cause a poisoned environment even if it does not amount to harassment, which requires a course of comment or conduct. Members of a group protected under the Code who are not the specific targets of a discriminatory comment or action may also have a right to bring a complaint. Being exposed to negative or hostile treatment that is racially motivated has a negative impact on other employees, and may leave them wondering if they are also the target when they are not present.[9]
A poisoned environment cannot, however, be based only on subjective views. There should be objective facts to show that the comments or conduct result in unequal or unfair terms and conditions and an infringement of the Code. Management has the responsibility to prevent and address situations that may create a poisoned work environment. A workplace that allows a poisoned environment to develop or continue may be the subject of a human rights claim. For more information about organizational responsibility, see Section III-4 – “Legal responsibility for human rights at work,” Section IV-12 – “Resolving human rights issues in the workplace,” and Section IV-12h) – “Dealing with formal human rights complaints and applications.” k) Sexual harassment“Harassment because of sex” is prohibited in section 7(2) of the Code. Recent case law has indicated that sexual harassment may also be a form of discriminatory treatment under section 5(1). Sexual harassment refers to comments or actions based on sex or gender that are unwelcome or should be reasonably known to be unwelcome. Research has shown that sexual harassment often involves misuse of power and dominance, usually escalates over time, and is commonly known to exist within workplaces where it occurs. Women who are marginalized due to race, sexual orientation, disability or other Code grounds are particularly vulnerable to sexual harassment in the workplace.
As with section 5(2), sexual harassment requires a “course of conduct” such as a pattern of behaviour or more than one incident. One significant incident may be offensive enough to be considered sexual harassment or create a poisoned environment (see above). There is no requirement that a person openly object to unwelcome comments or conduct.
The Code prohibits harassment in the workplace because of sex by an employer, agent of the employer or by another employee. Employers are also expected to prevent and address sexual harassment of employees by others they come into contact with in the course of doing their jobs.
Comments or conduct may be found to be sexual harassment even if they are not sexual in nature. Harassment often occurs when a person deviates from established gender norms. Someone may tease a person because of gender-based ideas about how men or women “should” look, dress or behave.
The following is not an exhaustive list, but it can help you identify what could be sexual harassment or inappropriate gender-related comments and conduct:
i) Harassment because of gender identity:A transgendered person is protected at work from degrading comments or insults because of gender identity (see also Section III-3m) – “Gender Identity”). Gender identity is not currently a prohibited ground, but related discrimination can be addressed as sex discrimination or sexual harassment.
l) Sexual solicitation and reprisalSubsection 7(3) of the Code also prohibits sexual solicitation:
The right to be free from unwelcome advances or requests for sexual favours extends to actions made by a boss, supervisor or other persons in a position of power.
Unwelcome sexual advances or solicitation from someone who is in a position to grant or deny a benefit to the person is another form of violating a person’s right to equal treatment. Sexual solicitation or advances can also happen between co-workers where one person is in a position to grant or deny an employment-related benefit to the other.
Finally, a reprisal occurs when an employer, supervisor or other person in a position to grant or withhold a benefit or advancement punishes a person because he or she rejects the sexual request. This kind of “getting even” is against subsection 7(3)(b) of the Code.
m) Failing to design inclusively, remove barriers and accommodateThe Code requires that the terms and conditions of the workplace, or the functions of a job, be created with a range of abilities and people in mind. This means that employers must do what is necessary to make sure that people protected by the Code are able to take part equally and with dignity in the workplace. Courts have clearly said that it is not enough to design systems that are not inclusive and then accommodate individual needs. Employers may be found to discriminate when they fail to design inclusively, permit barriers to be created or fail to remove existing barriers, or do not meet their duty to accommodate to the point of undue hardship. These concepts are discussed further in Section IV-8 – “Meeting the accommodation needs of employees on the job.” The Code also requires that workplace or job rules and conditions be modified as needed to meet the duty to accommodate, subject to the standard of undue hardship. Accommodation is a way of removing barriers preventing persons identified by Code grounds from fully taking part in the workplace in a way that responds to their individual circumstances. This duty to accommodate may arise in the context of any of the grounds of the Code. However, it has been addressed in most detail in Commission policies on disability, creed, age, sex (pregnancy and breastfeeding) and family status. The following are common examples of accommodations made by employers:
Some kind of operating rules, policies and procedures may be needed for business reasons, such as to comply with heath and safety legislation. However, the provisions of the Code continue to apply and may take precedence, if there is a conflict. This is because of the supremacy of the Code. It is not usually a defence under the Code for an employer to say that it has complied with other legislation.
The Code sets out only three factors for deciding whether accommodation would cause undue hardship: cost, outside sources of funding, and health and safety. A finding of discrimination may be made where appropriate accommodation has not been provided or the process for dealing with the accommodation request was flawed, if the employer does not have evidence to prove undue hardship.
For more information on how to meet the duty to accommodate in employment, refer to Section IV-8 – “Meeting the accommodation needs of employees on the job“ and Section IV-9 – “More about disability-related accommodation.” n) Racial profilingRacial profiling is a form of stereotyping based on preconceived ideas about a person’s character. It is discriminatory for decisions to be based on presumed characteristics instead of unbiased assessments of a person’s behaviour. The definition of racial profiling used by the Commission includes the following parts:
While this form of discrimination most often arises in the context of services, claims of racial profiling may also arise in employment.
A finding of racial profiling may be made even where race or another race-related Code ground is only one factor in the alleged conduct. In the example directly above, it would have been legitimate for the employer to discipline both employees. If the employer took more severe action against the Black employee because this was his second time and because he was presumed to be more violent because of his race, this would still amount to discrimination. This is because race was one factor, among other legitimate factors, that affected how he was treated. [6] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union (B.C.G.S.E.U.) (Meiorin), [1999] 3 S.C.R 3. Entrop v. Imperial Oil Ltd. (2000), 50 O.R. 3d 18 (C.A.) at para 77 (Entrop). Page 2
Discrimination is not defined in the Code but usually includes the following elements:
Many people wrongly think that discrimination does not exist if the impact was not intended, or if there were other factors that could explain a particular situation. In fact, discrimination often takes place without any intent to do harm. And in most cases, there are overlaps between discrimination and other legitimate factors.
In many cases, discrimination results from a tendency to build society as though everyone is the same as the people in power – all young, one gender, one race, one religion or one level of ability. Failing to consider many perspectives, or not planning to include all people, may result in barriers to access for persons identified by the Code. Such barriers, even if unintended, are discrimination. b) Negative attitudes, stereotypes and biases lead to discriminationIt is a principle of human rights that persons should be judged on their individual attributes, skills and capabilities, rather than on stereotypes, prejudice or assumptions. Prejudice is a strong dislike or negative feelings held by someone about another person or group. Negative attitudes and stereotypes may lead to harassment and discrimination, and affect a person’s ability to both get and succeed in a job. These types of attitudes can be expressed as "isms" (ageism, sexism, racism, etc.) and refer to a way of thinking about other persons based on negative stereotypes about race, age, sex, etc. When people are stereotyped, all people in the group are given the same characteristics, regardless of their individual differences. "Isms" refer mainly to attitudes, while discrimination involves actions. An example is treating someone in an unequal way due to one of the grounds listed in the Code. While racism, sexism, etc. will not always lead to discrimination under the Code, they are often the cause of discrimination and harassment. Therefore, it is important from a human rights perspective to address acts of discrimination and also ageist, sexist, racist, etc. attitudes that exist in a workplace. c) There are many forms of discriminationWhen asked to identify discrimination, many people think only of situations of open or “overt” harassment. As well as harassment, the Code prohibits many other kinds of discrimination, such as systemic discrimination or failing to accommodate Code-related needs. Discrimination can take many forms. In some cases, discrimination may be direct and intentional (for example, if a person or group treats another person differently on purpose because of a Code ground). This type of discrimination generally arises from negative attitudes and biases relating to that ground.
Discrimination exists when rules, standards or requirements that appear to be neutral have a discriminatory impact on people identified by the Code. In some cases, direct discrimination takes place through another person or other means. Discrimination can also occur when an employer adopts a practice or rule that, on its face, discriminates on a prohibited ground.
In these three examples, the people giving the instructions can be held responsible for discriminating. The persons who followed the instructions to discriminate have also engaged in discrimination – they cannot claim to have just been following orders. d) Discrimination because of associationSection 12 of the Code states that a person cannot be discriminated against or harassed because of his or her association, relationship or dealings with another person identified by a ground in the Code. This protection exists whether or not the person being discriminated against is identified by the same ground in the Code.
See also Section III – “Grounds of discrimination.” e) Subtle discriminationIn some cases, discrimination is subtle or covert. Intent or motive to discriminate is not a necessary element for a finding of discrimination – it is sufficient if the conduct has a discriminatory effect. Subtle forms of discrimination can often only be detected after looking at all of the circumstances. Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture, may lead us to think that discrimination based on a ground in the Code was a factor in how the person was treated.
It can be hard to determine if subtle discrimination is a factor in such situations. You may need to investigate and analyze the total context of the alleged behaviour, comment or conduct. This would include thinking about evidence that compares how others were treated in a similar situation, or evidence that a pattern of behaviour exists. Discrimination based on a Code ground may be found even if there were other legitimate reasons for decision or treatment, as long as it was one of the factors. The following types of treatment in employment may indicate subtle discrimination based on the Code:
The following actions may also be hints that racial discrimination is happening:
Discrimination may be found to occur even when there has been no overt or implied reference to a Code ground. However, if comments linked to a Code ground are made, they can be further evidence that discrimination has been a factor in the way someone is treated. Similarly, a finding of discrimination may be made when someone makes negative comments about a person advocating for human rights protections or equitable treatment. f) Systemic discriminationOne of the more complex forms of discrimination is systemic or institutional discrimination. Systemic discrimination refers to policies or practices that appear to be neutral on their surface but that may have discriminatory effects on individuals based on one or more Code grounds.
Systemic discrimination can overlap with other kinds of discrimination, such as harassment, and may arise from stereotypes and biases. The definition of systemic discrimination used by the Commission includes the following three elements:
People can experience systemic discrimination differently based on the intersection of various grounds of discrimination, such as gender, disability, place of origin, and so on. In the example above, a racialized or single woman with a disability would be at a triple disadvantage. The following three considerations can be used to identify and address systemic discrimination:
Use these three elements as a basis for actively monitoring for systemic discrimination and measures to address it. This is discussed in more detail in Section IV-1e) – “More about how to proactively identify and address systemic discrimination.” g) Workplace rules that are not “bona fide”Workplace rules, policies, procedures, requirements, qualifications or factors may not be openly discriminatory, but they may create barriers to achievement and opportunity. This kind of discrimination is specifically prohibited under section 11 of the Code. In the past, this type of discrimination was viewed as a specific category called “constructive discrimination” or “adverse effect discrimination.” Now, the impact on an individual or group is no longer viewed as the only determining factor – the focus is equally on both the rule and its impact. If the rule is not inclusive and does not accommodate individual differences to the point of undue hardship, it is discriminatory.
To be upheld as non-discriminatory, or a bona fide (bona fide means “good faith” or “genuine”) occupational requirement, an employer must show that the standard, factor, requirement or rule:[6]
As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship. It is not enough to keep discriminatory standards and supplement them by accommodating people who cannot meet them. This ensures that each person is assessed according to his or her own personal abilities, instead of being judged against presumed group characteristics.[7] For more general information, see Section III-2m) – “Failing to design inclusively, remove barriers and accommodate.” See also Section IV-8 – “Meeting the accommodation needs of employees on the job.” h) Reprisal and threat of reprisalEvery person has a right to claim and enforce his or her rights under the Code, or start or take part in proceedings under the Code without reprisal or threat of reprisal. These protections are provided in sections 7(3) and 8 of the Code. Reprisals for (a) claiming or enforcing a human right, (b) refusing to discriminate directly or indirectly, or (c) rejecting sexual advances or solicitations are violations of the Code. The protections from reprisal apply to complainants, witnesses, advisors, representatives of complainants and witnesses, investigators and decision-makers or management who support a person raising human rights issues. People are protected from reprisal when they file a formal human rights claim. They are also protected when a person exercises rights available under the Code or under an employer's internal human rights policies. Employees should be able to raise human rights issues and have them dealt with fairly. They should not be punished for having done so. Employees who seek accommodation related to grounds such as creed, disability or family status should not be treated as less valuable or less committed to their work as a result. The following situations would be viewed as reprisal contrary to the Code:
It is also a contravention of the Code to take reprisal or retaliate against someone who refuses to follow instructions to discriminate against another person, or who helps someone to enforce their rights under the Code.
i) HarassmentSubsection 5(2) of the Code states that: Harassment on any of the Code grounds can amount to discrimination. Although not directly mentioned in section 5(2), harassment because of sexual orientation has been found to be a form of discrimination based on sexual orientation that is a violation of the Code. Persons can file complaints alleging harassment because of gender identity under the ground of “sex.” Harassment may arise from stereotypes based on the intersection of more than one Code ground.[8]
“Harassment” refers to comments or actions that are unwelcome or should be known to be unwelcome. This definition, set out in subsection 10(1) of the Code, includes both subjective and objective elements:
The person being harassed does not need to object to the harassment for there to be a violation of the Code. Some persons who are being harassed do not object because they are afraid of what will happen if they speak out. Sometimes people respond by becoming angry, using strong language or becoming emotional. Many people being harassed try to cope by playing along or responding the same way in return. These are all common ways for a harassed employee to keep some form of personal power in a vulnerable situation, to regain favour or just to get by. Tribunals have recognized that these types of responses are understandable and do not defeat a claim of harassment.
To assess these situations accurately, you will need to apply the subjective and objective elements of the test and be aware of the power dynamics that are happening.
Harassment requires a “course of conduct.” This means that a pattern of behaviour or more than one incident is usually needed. However, one serious incident may create a poisoned work environment – see the next section for more details. When a person is singled out and treated differently because of a Code ground, even if the differential treatment does not include clear reference to the Code ground, there may still be a Code violation.
Employers, people acting for employers, co-workers and other persons in the workplace, such as clients, are prohibited from harassing employees at work. Management has the responsibility to prevent and address situations that may allow harassment to develop or continue. Employers also may be liable in a human rights complaint if they knew of, or should have known of, harassment and could have taken steps to prevent or stop it. A person who has the authority to prevent or discourage harassment may be found responsible or "vicariously liable." For more information about organizational responsibility, see Section III-4 and Section IV-12 about dealing with human rights allegations in the workplace. j) Poisoned work environmentInsulting or degrading comments or actions in a workplace based on Code grounds may cause employees to feel that the workplace is hostile or unwelcoming. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a “poisoned environment.” Even one comment, if serious enough, may cause a poisoned environment even if it does not amount to harassment, which requires a course of comment or conduct. Members of a group protected under the Code who are not the specific targets of a discriminatory comment or action may also have a right to bring a complaint. Being exposed to negative or hostile treatment that is racially motivated has a negative impact on other employees, and may leave them wondering if they are also the target when they are not present.[9]
A poisoned environment cannot, however, be based only on subjective views. There should be objective facts to show that the comments or conduct result in unequal or unfair terms and conditions and an infringement of the Code. Management has the responsibility to prevent and address situations that may create a poisoned work environment. A workplace that allows a poisoned environment to develop or continue may be the subject of a human rights claim. For more information about organizational responsibility, see Section III-4 – “Legal responsibility for human rights at work,” Section IV-12 – “Resolving human rights issues in the workplace,” and Section IV-12h) – “Dealing with formal human rights complaints and applications.” k) Sexual harassment“Harassment because of sex” is prohibited in section 7(2) of the Code. Recent case law has indicated that sexual harassment may also be a form of discriminatory treatment under section 5(1). Sexual harassment refers to comments or actions based on sex or gender that are unwelcome or should be reasonably known to be unwelcome. Research has shown that sexual harassment often involves misuse of power and dominance, usually escalates over time, and is commonly known to exist within workplaces where it occurs. Women who are marginalized due to race, sexual orientation, disability or other Code grounds are particularly vulnerable to sexual harassment in the workplace.
As with section 5(2), sexual harassment requires a “course of conduct” such as a pattern of behaviour or more than one incident. One significant incident may be offensive enough to be considered sexual harassment or create a poisoned environment (see above). There is no requirement that a person openly object to unwelcome comments or conduct.
The Code prohibits harassment in the workplace because of sex by an employer, agent of the employer or by another employee. Employers are also expected to prevent and address sexual harassment of employees by others they come into contact with in the course of doing their jobs.
Comments or conduct may be found to be sexual harassment even if they are not sexual in nature. Harassment often occurs when a person deviates from established gender norms. Someone may tease a person because of gender-based ideas about how men or women “should” look, dress or behave.
The following is not an exhaustive list, but it can help you identify what could be sexual harassment or inappropriate gender-related comments and conduct:
i) Harassment because of gender identity:A transgendered person is protected at work from degrading comments or insults because of gender identity (see also Section III-3m) – “Gender Identity”). Gender identity is not currently a prohibited ground, but related discrimination can be addressed as sex discrimination or sexual harassment.
l) Sexual solicitation and reprisalSubsection 7(3) of the Code also prohibits sexual solicitation:
The right to be free from unwelcome advances or requests for sexual favours extends to actions made by a boss, supervisor or other persons in a position of power.
Unwelcome sexual advances or solicitation from someone who is in a position to grant or deny a benefit to the person is another form of violating a person’s right to equal treatment. Sexual solicitation or advances can also happen between co-workers where one person is in a position to grant or deny an employment-related benefit to the other.
Finally, a reprisal occurs when an employer, supervisor or other person in a position to grant or withhold a benefit or advancement punishes a person because he or she rejects the sexual request. This kind of “getting even” is against subsection 7(3)(b) of the Code.
m) Failing to design inclusively, remove barriers and accommodateThe Code requires that the terms and conditions of the workplace, or the functions of a job, be created with a range of abilities and people in mind. This means that employers must do what is necessary to make sure that people protected by the Code are able to take part equally and with dignity in the workplace. Courts have clearly said that it is not enough to design systems that are not inclusive and then accommodate individual needs. Employers may be found to discriminate when they fail to design inclusively, permit barriers to be created or fail to remove existing barriers, or do not meet their duty to accommodate to the point of undue hardship. These concepts are discussed further in Section IV-8 – “Meeting the accommodation needs of employees on the job.” The Code also requires that workplace or job rules and conditions be modified as needed to meet the duty to accommodate, subject to the standard of undue hardship. Accommodation is a way of removing barriers preventing persons identified by Code grounds from fully taking part in the workplace in a way that responds to their individual circumstances. This duty to accommodate may arise in the context of any of the grounds of the Code. However, it has been addressed in most detail in Commission policies on disability, creed, age, sex (pregnancy and breastfeeding) and family status. The following are common examples of accommodations made by employers:
Some kind of operating rules, policies and procedures may be needed for business reasons, such as to comply with heath and safety legislation. However, the provisions of the Code continue to apply and may take precedence, if there is a conflict. This is because of the supremacy of the Code. It is not usually a defence under the Code for an employer to say that it has complied with other legislation.
The Code sets out only three factors for deciding whether accommodation would cause undue hardship: cost, outside sources of funding, and health and safety. A finding of discrimination may be made where appropriate accommodation has not been provided or the process for dealing with the accommodation request was flawed, if the employer does not have evidence to prove undue hardship.
For more information on how to meet the duty to accommodate in employment, refer to Section IV-8 – “Meeting the accommodation needs of employees on the job“ and Section IV-9 – “More about disability-related accommodation.” n) Racial profilingRacial profiling is a form of stereotyping based on preconceived ideas about a person’s character. It is discriminatory for decisions to be based on presumed characteristics instead of unbiased assessments of a person’s behaviour. The definition of racial profiling used by the Commission includes the following parts:
While this form of discrimination most often arises in the context of services, claims of racial profiling may also arise in employment.
A finding of racial profiling may be made even where race or another race-related Code ground is only one factor in the alleged conduct. In the example directly above, it would have been legitimate for the employer to discipline both employees. If the employer took more severe action against the Black employee because this was his second time and because he was presumed to be more violent because of his race, this would still amount to discrimination. This is because race was one factor, among other legitimate factors, that affected how he was treated. [6] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union (B.C.G.S.E.U.) (Meiorin), [1999] 3 S.C.R 3. Entrop v. Imperial Oil Ltd. (2000), 50 O.R. 3d 18 (C.A.) at para 77 (Entrop). |