Discrimination happens in the workplace. Usually based on unequal treatment stemming from certain characteristics. This could include (but isn’t limited to) religion, sex, age, ethnicity, family status, and sexual orientation. In Ontario, these characteristics are protected by the Human Rights Code. The Human Rights Tribunal of Ontario (HRTO) is responsible for hearing cases to determine if a worker’s rights have been violated. This guide hopes to explain the code, so you can better deal with discrimination in the workplace.
WHAT IS DISCRIMINATION
It might sound peculiar, but discrimination isn’t actually defined by the Human Rights Code or any other governing authority. Instead, it’s requirements usually arise from negative attitudes, biases, and stereotypes. Discriminatory situations can vary greatly such as being denied the opportunity for employment, promotions, or equal pay based on uncontrollable characteristics. The prohibited characteristics can be found on the Ontario Human Rights Commission website, but generally include:
– Family status
– Gender expression or identity
– Sexual orientation
It should be noted that The Code extends beyond employers, to also include agents, coworkers, volunteers, contractors, etc.
AN EMPLOYER’S DUTY TO ACCOMMODATE
If an employee has a special need for one of the characteristics mentioned above, then employers have “the duty to accommodate”. This means ensuring the workplace is safe, suitable, and accessible for the employee.
When the employer does not fulfill their duty to make accommodations, they’re likely violating the employees’ human rights. Again, accommodation can be hard to define. The employer needs to show they made “reasonable efforts” to determine if the workplace can be altered. However, the duty to accommodate stops short of forcing undue hardship on the business. What constitutes undue hardship is determined case by case.
The duty to accommodate can’t always be a perfect solution. That’s why the act uses the term “reasonable efforts”. If the employee isn’t satisfied by the employers attempts, but the HRTO is, then there is no case for discrimination.
HOW TO FIGHT A HUMAN RIGHTS VIOLATION
Complaints can be filed regardless if the worker is still employed, quit, or was dismissed. If the employee has voluntarily left their job because of discrimination, it can be viewed as “constructive dismissal”.
If the employer and employee are in Ontario, the employee may apply to the HRTO for help/relief. Employment based complaints for national organizations are under federal jurisdiction with the Canadian Human Rights Commission (CHRC).
Complaints are referred to as “applications” by the HRTO. It helps to look at it as though you’re not filing a complaint, rather an application to be heard. This is a lengthy and complicated process. The HRTO does offer the opportunity to speak to a Human Rights Advisor, whom you can call 1-866-625-5179. Just note that they cannot offer legal advice or opinions. They can only answer questions about terms or definitions on the paperwork you’re filling out.
Many employees who feel they have been discriminated against have turned to Paul Duarte & Associates for help. We have extensive experience with the HRTO as both applicants and respondents.