Human rights and discrimination can be complex, particularly when it intersects with employment and employment law. This blog seeks to provide some answers to common questions about human rights in the employment law context. First, we look at what is Ontario’s Human Rights Code. Then we define what are “prohibited grounds” and the duty to accommodate. We also explore what other employer obligations that exist in terms of human rights compliance and what are some examples of human rights violations in the workplace. Finally, we discuss what are possible remedies for violations of an employee’s human rights in the workplace.

What is Ontario’s Human Rights Code?

Ontario’s Human Rights Code, 1990 (“Code”) is legislation that exists to protect people against human rights violations across certain social areas such as housing, contracts, employment, services and facilities like in education or medical care. Specifically, the Code applies to many areas of employment including hiring, training and dismissals. Employers have an obligation to ensure that their workplace abides by the Code.

What are Prohibited Grounds and the Duty to Accommodate?

The Code, as defined above, prohibits individuals from being discriminated against based on certain prohibited grounds (age, race, ethnic origin, creed, family status, disability, marital status, sexual orientation, gender and others). If workplace discrimination is based on a prohibited ground under the Code, the employee may make an application to the Human Rights Tribunal of Ontario (“HRTO”). The HRTO has a hearing and application process that can resolve claims of workplace harassment under the Code.

In Ontario, employers have an obligation to accommodate an employee until the point of undue hardship. The standard of what can constitute undue hardship is generally a high standard and usually results in the employer having to go to considerable lengths to try to ensure that the employee has been successfully accommodated. For example, employees can be commonly accommodated in the workplace with respect to the protected ground of family status. Accommodation related to family status would be providing time off to the employee, allowing a flexible work schedule or allowing for some flexibility in productivity demands or changes to tasks. However, undue hardship could arise if there were certain safety concerns that could not be met or the costs of accommodation were just too high for the employer.

The standard set out for employers is not perfection, but what is reasonable in the context of the specific matter at hand. It is the employer’s onus to show that they could not accommodate the employee without undue hardship.

Failure to accommodate an employee based on a prohibited ground within the workplace could constitute discrimination under the Code and therefore result in a human rights complaint. The employee may also bring a civil claim against the employer for common law and statutory damages in a wrongful dismissal lawsuit. Depending on the circumstances, the employee may also be entitled to punitive and general damages.

An Employer’s Obligation to Inquire under Ontario’s Human Rights Code

As set out above, employers have a legal duty to accommodate an employee under the Code up to the point of undue hardship. However, one part of that duty is the legal duty to inquire. Simply put, the duty to inquire is a legal obligation that employers have toward their employees related to the employee’s human rights and ability to participate fully in the workplace. In cases where the employee may need accommodation, the employer must move forward to address those concerns and inquire about any possible need for accommodation even if the employee has not specifically asked for accommodation.

Examples of Human Rights Violations in the Workplace

Here are several common ways human rights may be violated in the workplace:

• workplace harassment, bullying or the creation of a toxic work environment related to a prohibited ground under the Code;
• terminating or firing an employee because the employee requested accommodation based on a prohibited ground under the Code;
• reprising or retaliating against an employee because the employee requested accommodation based on a prohibited ground under the Code;
• refusing to hire someone based on a prohibited ground under the Code; and
• refusing to promote someone based on a prohibited ground under the Code.

Possible Remedies for Violation of an Employee’s Human Rights

An employee should approach an employment lawyer to determine what their next steps should be if they believe that their human rights have been violated by their employer. Failure in the employer’s duty to accommodate can constitute discrimination under the Code and therefore result in a human rights complaint. The HRTO can order a variety of remedies including reinstatement or backpay.

The employee may also bring a civil claim against the employer for common law and statutory damages in a wrongful dismissal or constructive dismissal lawsuit. Depending on the circumstances, the employee may also be entitled to punitive and general damages.

How Zeilikman Law Can Help!

Zeilikman Law helps both employers and employees with employment law issues around workplace accommodation by providing legal advice, preparing various policies, correspondence or other documentation, helping to negotiate a resolution to these issues, litigation management, etc.

For more information about the topic of human rights and other related topics in employment law, please see:

• What You Need to Know About the Duty to Inquire under Ontario’s Human Rights Code
• Is Subtle Bullying Workplace Harassment? What Ontario Law Says
• Can an Employee Claim Discrimination Against an Employer as a Result of Family Caregiving Responsibilities?

Contact Zeilikman Law today at (905) 417-2227 or online here for a confidential consultation to get your questions answered about this topic and other employment law issues.