If you are like most people, you have likely been unable to resist that nagging urge to state your view on a political topic during lunch at work. Did it get you into trouble?
You will be surprised to find out that in Ontario mere political beliefs or convictions are not expressly protected from discrimination at work. Specifically, section 5(1) of the Ontario Human Rights Code, 1990, R.S.O. 1990, c. H. 9 (“Code”) sets out the following protected grounds, none of which includes political views explicitly:
5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of 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 or disability.
There is some indication in the jurisprudence that “creed” could potentially encompass a political perspective if such a perspective is based on a recognizable cohesive belief system. However, as things stand now, political views per se are not actually protected from discrimination under the Code. Does this mean that an employer is free to terminate an employee for holding mere political beliefs? The short answer is: “yes.” However, such an answer is not without its caveats.
Firstly, while adhering to certain politics may not be protected by the Code, holding particular political views (and expressing them in the workplace) may not necessarily constitute cause for dismissal at law. Thus, in the absence of cause, an employee will still be entitled to their minimal rights under the Employment Standards Act, 2000, S.O. 2000, c. 41. Most employees would also be entitled to reasonable notice of termination at common law.
Secondly, the line between politics and religion is sometimes blurry and an expression of a political conviction that can be expressed in religious terms is protected under the Code. This means that terminating an employee specifically or in part because of sincerely held beliefs that are also creed-based or religious would trigger the Code’s protections.
Thirdly, employees in Ontario are entitled to be treated fairly by their employers and in good faith in the manner of their dismissal. Breach of the aforementioned duties and consequent mental distress to the employee may lead to additional compensation in the form of “moral damages.” Employees are also entitled to feel safe at work and be free from harassment. It is not impossible for a heated dispute to develop around a political issue, which would result in a supervisor taking aim at an employee who holds different political views and dismissing them on bogus “legal” grounds. This happens to various degrees of severity and often results in litigation.
The flip side is also true, of course. Many employees are not beyond reproach and those who hold political views that are discriminatory may see their days with their employer numbered. Thus, an employer may be able to lawfully dismiss an employee for cause if the political beliefs espoused by the employee are in breach of the Code. In more benign instances, an employer may simply terminate an employee with whose political beliefs they disagree; however, in such instances the employee would be able to claim the right to a severance package.
One more thing to be aware of: political views that are broadcasted to the public during “off hours” are fair game. Most employees are employed by private enterprises where constitutional considerations concerning freedom of expression do not apply. So if you find yourself having the irresistible urge to zing your perennial political opponent online know that it may be met with a “best wishes in your future endeavours” letter on Monday morning. Whether such a letter will include the words “with” or “without cause” will be something additional for you to argue about.