Human Rights and Discrimination

Ontario Human Rights Code

The Ontario Human Rights Code is a provincial law that protects employees from discrimination and harassment in the workplace based on protected grounds, including disability, race, sex, pregnancy, sexual orientation, gender identity, age, creed, and family status. It also provides protections relating to workplace accommodation and reprisal in appropriate circumstances.

What Are Protected Grounds?

Protected grounds are personal characteristics that are protected from discrimination under the human rights legislation. In Ontario, the Code identifies grounds including race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, and disability.

A human rights issue may arise when an employee experiences negative treatment because of one of these characteristics or when an employer fails to appropriately address an accommodation need related to a protected ground.

Employee Rights and Protections Under the Ontario Human Rights Code

The Ontario Human Rights Code provides employees with a right to equal treatment in employment without discrimination based on the protected grounds identified in the Code. These protections can apply to hiring, compensation, promotions, working conditions, discipline, and termination. Employees may also have rights to workplace accommodation when required because of a protected human rights ground.

Depending on the circumstances, employee rights may include protection against:

• Discrimination in hiring and recruitment
• Discriminatory employment conditions
• Discrimination in compensation or advancement
• Certain forms of workplace harassment
• Failure to accommodate protected needs
• Reprisal for exercising rights under the Code
• Discriminatory discipline or termination

These rights apply throughout the employment relationship and may become particularly important when an employee raises a human rights concern, requests accommodation, or faces adverse treatment after making a complaint.

Workplace discrimination under the Ontario Human Rights Code

Workplace discrimination is unequal or adverse treatment in employment that is connected to a protected ground under the Ontario Human Rights Code. Discrimination can occur during recruitment, employment, promotion, compensation, discipline, accommodation, or termination.

Not every unfair workplace experience is necessarily discrimination under the Human Rights Code. For the Code to apply, the conduct generally must fall within a protected area, such as employment, and be connected to a protected ground.

Common Types of Workplace Discrimination Falling Under the Ontario Human Rights Code

Such workplace discrimination can take different forms and may not always be obvious. Examples can include:

• Being denied a promotion because of a protected characteristic
• Receiving different employment opportunities because of race or ethnicity
• Being treated negatively because of pregnancy
• Experiencing discriminatory treatment because of disability
• Being subjected to religious discrimination or denied appropriate accommodation
• Being treated adversely because of family status
• Experiencing discrimination based on sexual orientation, gender identity, or gender expression
• Being disciplined or terminated in circumstances connected to a protected ground

It may occur through a single decision or through a pattern of workplace conduct. The legal assessment depends on the facts, the applicable legislation, and the evidence available.

Workplace harassment under the Ontario Human Rights Code

Workplace harassment generally involves unwelcome conduct that affects an employee, and, in human rights matters, this involves harassment connected to a protected ground. The Ontario Human Rights Code specifically provides employees with protection from certain forms of workplace harassment connected to listed grounds.

Such harassment can include repeated comments, discriminatory jokes, insults, exclusion, offensive conduct, or other behaviour connected to a protected characteristic. Sexual harassment and harassment based on sex are also addressed within Ontario’s human rights framework.

If you are experiencing such harassment at work, documenting what happened, when it happened, who was involved, and how you responded can help preserve relevant evidence.

Human Rights Discrimination vs. Workplace Conflict

A workplace disagreement, personality conflict, criticism, or management decision is not automatically human rights discrimination. The key question is whether the conduct is connected to a protected ground and falls within an area covered by the Ontario Human Rights Code.

For this reason, employees should avoid assuming that every unfair workplace decision constitutes human rights discrimination. A qualified employment lawyer in Ontario can assess the circumstances and identify whether human rights, employment law, or another legal framework applies to the situation.

What is the Duty to Accommodate?

Under the Ontario Human Rights Code, the duty to accommodate is the obligation to take appropriate steps to accommodate an employee’s needs where those needs are connected to a protected human rights ground, subject to the legal limit of undue hardship.

Accommodation may arise in situations involving disability, creed, family status, pregnancy, or other protected grounds. Depending on the circumstances, accommodation could involve changes to scheduling, duties, workplace practices, or other employment arrangements.

Example of Workplace Accommodation

For example, an employee may require a workplace adjustment because of a disability. If the employee communicates the need for accommodation and provides appropriate information supporting the request, the employer may have obligations under human rights law.

The appropriate accommodation depends on the individual circumstances. Employees should not assume that a particular accommodation is automatically required; instead, the employer and employee may need to participate in an accommodation process.

What is reprisal under the Ontario Human Rights Code?

Reprisal refers to adverse treatment or other prohibited conduct connected to a person exercising or attempting to enforce rights under the Ontario Human Rights Code. An employee may raise a reprisal concern if negative treatment follows their attempt to assert human rights protections.

For example, an employee may make a workplace discrimination complaint and subsequently experience adverse treatment that they believe is connected to the complaint. Whether the conduct legally constitutes reprisal depends on the evidence and applicable law.

If you believe you have experienced retaliation after raising a human rights concern, speak with an employment lawyer Ontario before taking further action.

Examples of Human Rights and Discrimination Issues

Example 1: Disability Discrimination

An employee requests accommodation related to a disability. Instead of participating appropriately in the accommodation process, the employer repeatedly excludes the employee from opportunities or disciplines the employee because of the accommodation request.

The circumstances could raise issues involving disability discrimination, accommodation, or reprisal.

Example 2: Pregnancy Discrimination

An employee is treated differently at work after announcing a pregnancy and subsequently loses opportunities that were previously available to them.

Depending on the circumstances and evidence, this may raise concerns under the Human Rights Code’s protections relating to sex and pregnancy.

What Should Employees Do If They Experience Discrimination?

If you believe you are experiencing workplace discrimination or harassment, consider taking practical steps to preserve your rights and evidence.

Document What Happened

Keep a factual record of relevant incidents, including dates, locations, people involved, statements made, workplace decisions, and your responses.

Preserve Relevant Documents

Keep copies of relevant emails, messages, workplace policies, accommodation communications, performance documents, and other records that you are legally entitled to possess.

Follow Appropriate Workplace Processes

Depending on the circumstances, you may wish to raise the concern through your employer’s internal process. However, the appropriate approach may vary depending on the issue and your legal circumstances.

Get Legal Advice

A human rights lawyer in Ontario or a qualified employment lawyer can assess the facts and explain potential options before you make an important decision.

Human Rights Claims in Ontario

The Human Rights Tribunal of Ontario (HRTO) deals with applications involving discrimination and harassment that fall within the jurisdiction of the Ontario Human Rights Code. The HRTO states that an application generally must be filed within one year of the alleged human rights discrimination or harassment, although limited exceptions may apply.

The HRTO also notes that not every unfair or unequal workplace experience falls within its jurisdiction. A claim must generally involve a protected ground and an area covered by the Code, such as employment.

Because deadlines and jurisdiction can affect your legal options, employees should consider obtaining legal advice promptly when a potential human rights violation occurs.

Remedies for Workplace Discrimination

If discrimination or harassment is established, potential remedies may depend on the circumstances and the legal forum involved.

The HRTO identifies several categories of remedies, including

• Monetary compensation for certain financial losses and injury to dignity, feelings, and self-respect
• Non-monetary remedies, which can include measures intended to put an applicant in the position they would have occupied if the discrimination had not occurred
• Public-interest or future-compliance remedies, such as changes to workplace practices, policies, or training

The specific remedy available depends on the facts, evidence, jurisdiction, and applicable law. A lawyer can help assess what remedies may be relevant to your circumstances.

How Can Our Employment Lawyer Help You?

A workplace human rights issue may involve overlapping areas of law. For example, discrimination may occur alongside a termination, workplace harassment, accommodation dispute, or reprisal allegation. Our experienced lawyers will help you identify the relevant legal framework and determine whether the facts support a potential claim.

We can assist you with:

• Assessing your workplace discrimination or human rights concerns.
• Determining whether a protected ground under the Ontario Human Rights Code may apply.
• Reviewing workplace policies, employment contracts, and relevant evidence.
• Advising you on accommodation, harassment, reprisal, or termination issues.
• Explaining potential claims, remedies, and applicable deadlines.
• Helping you understand your options before taking legal action.

Key Takeaways

• Ontario employees are protected from workplace discrimination based on protected grounds under the Ontario Human Rights Code.
• Discrimination can include harassment, unequal treatment, termination, or denied opportunities based on the protected grounds.
• Employers may have a duty to accommodate protected needs, subject to undue hardship.
• Employees may have legal options through human rights and employment law.
• In such cases, our Ontario employment lawyer can help assess your rights and next steps.