Breaches of the Human Rights Code and Employers

25 Nov

Employers Must be Mindful of Unintentional Breaches of the Human Rights Code

Employers need to be aware of the impact of the Ontario Human Rights Code (the “Code”) when dealing with their employees, customers, and members of the public. While most employers are aware of the specific prohibited grounds of discrimination under the Code, sometimes an employer can unwittingly run afoul of the Code when making business decisions.

Consider the following two decisions. First, an employer has a policy that it will not hire individuals from a specific ethnic group. Second, an employer has decided to schedule mandatory managers’ meetings for 7:00 a.m., which is outside of the regularly scheduled hours of work. This was done as it was thought the meetings will be more productive as interruptions will not take place. While it should be clear to all that the first decision creates a violation of the Code, what about the second? Which situations are breaches of the Human Rights Code?

The second decision created an unwitting violation of the Code. The legal term for this is “adverse effect discrimination”. This happens when a decision is made for legitimate business reasons and even treats all employees equally, but it has a discriminatory impact on a prohibited ground of discrimination under the Code.

The Tribunal held that this meeting time created adverse effect discrimination based upon family status when an employee was unable to attend meetings scheduled at that time due to child care responsibilities. As it was not possible for the employer to demonstrate that scheduling the meeting at another time created undue hardship, liability was found under the Code.

The OHRT has also recently held that family status protection extends not only to employees with child care responsibilities but also to employees who have elder care responsibilities. Therefore, with the aging of the population, adverse effect discrimination is likely to become an issue which employers will need to consider on a more regular basis.

Care to learn more about the above? Contact me and I would be happy to put you in touch with a specialist in this area.