How Do Human Rights Complaints Arise In The Workplace
How do you know that you have experienced discrimination in the workplace? Read on for a better understanding of discrimination and how human rights complaints might arise.
What is Discrimination? Why does it happen?
As the Ontario Human Rights Commission writes, “It 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, Stereotypes and “Isms” Defined:
A prejudice is a preconceived dislike or negative opinion about a person or group. Prejudices are sometimes based on stereotypes. When people in a group are stereotyped, all people in that group are given the same characteristics, regardless of their individual differences.
Prejudicial attitudes and stereotypes can often contribute to discrimination in the work-place and manifest as “isms”, such as racism, ageism and sexism.3
“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 Human Rights 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 the factors contributing to them, such as prejudicial attitudes that exist in the workplace.
What does Discrimination look like?
Discrimination can be overt, but can also be systemic, meaning it exists in rules or policies put in place. Further, discrimination can manifest as an employer failing to accommodate Human RRights Code-related needs, such as needing time off to care for a sick parent or a child with a severe disability.
The Code offers every employee the ability to claim and enforce their rights under the Code or to file a human rights complaint and start proceedings under the Code, without reprisal or threat of reprisal.
The Human Rights Code cites several grounds for discrimination:
● Family status: a parent and child relationship, or those acting as parents/guardian
● Marital status
● Race and race-related grounds: race, language, colour, ancestry and ethnic origin, place of origin
● Creed (religion)
● Record of Offences: for an offence in respect of which a pardon has been granted and not revoked, or an offence in respect of any provincial enactment (like the Highway Traffic Act)
● Gender Identity
● Sexual Orientation
● Intersecting grounds: i.e. a “young black man” would take on a unique significance for discrimination than just age, gender and race individually.
● Association with those protected by the Code: i.e. standing up for others against racist comments or being close friends with someone who is from a Code-protected group.
Options for filing complaints
In the workplace- Internal Procedures
Employees have a legal responsibility to treat fellow employees in a way that is consistent with the Human Rights Code. A co-worker who infringes a right can be named as the respondent in a human rights complaint, regardless of their status or employment level.
Unions and employers have joint responsibilities to ensure that workplaces are discrimination-free. They should work together to develop internal processes/procedures for dealing with human rights complaints.
Some employees may also have rights under a collective agreement (a contract created by a union) that will allow them to take specific measures such as filing a grievance.
Proof of intent to discriminate is not important. What matters is if there was a discriminatory result. Discrimination against a person believed to be a member of one of the groups protected by the Code is discriminatory even if the person is not a member of those groups.
Even if there is a plausible explanation, an investigation should seek to ascertain whether events would have unfolded in the same way had the person not been a member of one of the
groups protected by the Code. Even if discrimination is not the sole or primary factor, a discrimination complaint can still be filed.
Outside of the workplace
If an in-house resolution process has been unsuccessful, employees can file a complaint under the Human Rights Code.
They can do so in one of two ways:
1. Through preparing an application to the Human Rights Tribunal
2. Through the courts if litigation is already taking place for a related primary matter. This option can only be taken if the Human Rights claim is peripheral to the matter being litigated. The courts can order relief payments or other remedies to deal with the Human Rights component.
a. Example: In a wrongful dismissal case where harassment plays a role, the complainant is rewarded damages payments
Whether you are an employer or an employee, one of the specialist employment lawyers at Tailor Law can help you. You can reach our office at 905-366-0202 or contact us through our website here.
Nothing in this article should be considered or relied on as legal advice or opinion. This article only provides general information and should you require assistance, please contact us to book a free initial consultation.
– Ontario, Ontario Human Rights Commission, Human Rights at Work 2008, 3rd ed. (31 March 2008) at III.