There have been a number of significant awards against Canadian employers in the past year for violations of human rights legislation, including a record general damages award in Alberta. A violation of human rights legislation can impose not only a financial consequence on an employer but also reputational damage. Understanding your human rights obligations as an employer is key to minimizing this risk.
There are four key requirements for employers under human rights legislation in Canada:
- Prohibition on discrimination
- Advertisements must comply with human rights legislation
- Equal pay and opportunities
- Prohibition on harassment
Discrimination Prohibited
Human rights legislation starts with a basic prohibition on discrimination. Every province and the federal jurisdiction in Canada has human rights legislation that applies to employers, and that legislation prohibits employers from discriminating with respect to employment because of specific grounds. These are referred to as “prohibited grounds of discrimination”.
The prohibited grounds of discrimination are largely the same in each jurisdiction, but there are some differences. Every jurisdiction includes the following prohibited grounds:
- Race
- Colour
- Ancestry
- Nationality or national origin
- Religion
- Age
- Sex
- Sexual orientation
- Gender identity
- Marital status
- Family status
- Disability
Some jurisdictions include other prohibited grounds. Depending on the jurisdiction, the following may also be prohibited grounds:
- Citizenship
- Creed
- Criminal or summary conviction (in some jurisdictions that include this, it is only a prohibited ground if it is unrelated to the employment but in others there is no such restriction)
- Political belief, political association or political activity
- Source of income
- Social condition or social disadvantage
- Language
- Genetic characteristics (including refusal to undergo a genetic test or to disclose the results of a genetic test)
The prohibition on discrimination based on prohibited grounds applies broadly in employment. It applies to prospective employees (ie. applicants for a position) and employees. This means that you cannot refuse to employ someone or refuse to continue to employ them based on a prohibited ground and you cannot discriminate against them in their employment based on a prohibited ground.
There are some exceptions where discrimination is permitted, but these vary by jurisdiction. All jurisdictions allow for some discrimination where the discrimination relates to a bona fide occupational requirement, but in some jurisdictions this exception is limited to certain prohibited grounds. For example, in Ontario this exception only applies to discrimination based on age, sex, record of offences, or marital status.
All jurisdictions also have exceptions for special programs that are designed to address disadvantages of particular groups, but the specific requirements for these programs vary. In some jurisdictions special programs must be approved by the applicable human rights commission.
Advertisements
In addition to the general prohibition on discrimination, every jurisdiction has specific prohibitions dealing with job advertisements and interviews. You cannot publish an employment-related advertisement or make written or oral inquiries that express a limitation, specification, or preference based on prohibited grounds.
In Ontario, the Human Rights Code specifies that during a personal employment interview, questions can be asked concerning a prohibited ground of discrimination where that discrimination is permitted under the Code.
Equal Pay and Opportunities
Many jurisdictions in Canada include specific provisions dealing with equal pay and opportunities. Generally, these prohibit an employer from paying different wages to employees who are performing substantially the same work. Most jurisdictions also prohibit an employer from reducing the wages of a higher paid employee to meet this requirement.
Some jurisdictions expand on this and prohibit employers from providing different opportunities for training and advancement or providing different pension or insurance benefits to employees performing the same work, based on a prohibited ground.
Additional requirements regarding equal pay and opportunities are also found in employment standards legislation in several jurisdictions.
Harassment
Harassment is a topic that is often addressed in several different types of employment legislation. Most jurisdictions address harassment in their health and safety legislation, but they may also have requirements in human rights and employment standards legislation. It is important to not forget about the obligations in human rights legislation when thinking about harassment.
The Federal jurisdiction as well as Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, and Quebec all have requirements dealing with harassment in their human rights legislation. All of those jurisdictions, except PEI, provide that you cannot harass a person someone because of a prohibited ground. Several of the jurisdictions also prohibit an employer from knowingly permitting or failing to take reasonable steps to stop harassment.
Consequences of Not Complying
Failing to comply with human rights legislation can lead to possible fines or complaints. For example, in many jurisdictions, it is an offence to contravene the Act and if you are guilty of an offence, you can be liable to a fine. In Ontario, for example, you can be fined up to $25,000 if you are found guilty of an offence.
Every jurisdiction also allows for complaints to be brought before a tribunal, and in those cases, a tribunal has the power to make a variety of orders, including orders to pay monetary compensation to the complainant.
How Compliance Works Helps HR Professionals
Employment law obligations are spread over a variety of legislation – everything from employment standards, health and safety, human rights, pay equity etc. Knowing where to look to identify all of your obligations is challenging. Compliance Works makes it easy to identify all of your requirements by covering 8 areas of law and pulling together related requirements from Acts and Regulations, providing you with confidence that you have it all covered.
Contact us to Request a Demo , subscribe to Compliance Works publications, or email us at info@complianceworks.ca to learn how a paid subscription to Compliance Works can help your HR team succeed.
