Discrimination, Is It Ever Okay in the Workplace?

Feb 11, 2021

Introduction

Most of us have been taught throughout their lives that it is wrong to discriminate against someone. The government created the Human Rights Code that sets out 17 prohibited grounds of discrimination in five social areas – housing, employment, services, contracts, and vocational associations – where discrimination is prohibited.

The list of 17 protected grounds are:

Citizenship, race, place of and ethnic origin, colour, ancestry, disabilities, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity and expression, receipt of public assistance (in housing) and record of offences (in employment).

So, is it ever okay for a company to refuse to hire someone because of an attribute found in the list above?

The company must be able to prove three things:

  1. Was the hiring decision adopted for a purpose or goal that is rationally connected to performing the job?
  2. Was the hiring decision adopted in good faith, in the belief that it is necessary to fulfill a legitimate work-related purpose?
  3. Is reasonably necessary to accomplish the work-related purpose? To show that the standard is reasonably necessary, employers must show that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

If the employer can prove that no discriminatory action took place based on the three-part test, then the discriminatory behaviour may be considered a bona fide occupational requirement.

Bona Fide Occupational Requirements (B.F.O.R’s)

An example of a bona fide occupational requirement would be an employer refusing to hire someone under the age of 18 for a job that requires them to serve alcohol. The laws around selling alcohol state a person must be 18 or older to legally sell, serve, handle, stock fridges or the bartending area, and take payments or orders of alcohol in Ontario.  In this situation, it is pretty clear you cannot hire a person under the age of 18 to perform the work.  But what if it is not so clear?

In Baker v. Cambridge (City), 2011 HRTO 1167 (CanLII), the employer was able to succeed in its case to require mandatory retirement of age 60 for its fire fighters.  Mr. Baker approached his employer requesting an exemption against the mandatory retirement requirement; his employer agreed provided he pass the fitness test.  Mr. Baker refused to complete the test.

The tribunal in this case was made in favour of the Respondent as they were able to prove that the retirement age was a bona fide occupational requirement.  The Respondent also showed willingness to accommodate Mr. Baker and make an exemption if he able to pass the fitness requirement.

A different kind of discrimination

A lesser known area of discrimination is called constructive (or adverse impact) discrimination.  This is a rule or practice put in place that seems to apply equally to everyone but has a negative effect on a group of people because of a protected ground. You may see this in the dress code section of an employee handbook given at the start of a new job.  It can be something that seems inoffensive on its face such as “male employees must be clean shaven.”  This could lead to constructive discrimination for those whose religious beliefs prohibit shaving.

The rule may not intend to exclude anyone while it promotes the standards the company wants to ingrain in their staff, but it can have a negative effect in hiring practices. It would be in the employer’s best interest to make an exception or change the rule to include all groups of people, unless they are able to prove that the policy constitutes an bona fide occupational requirement.

What is an employer to do?

Before implementing any new policy that may directly or indirectly affects its workforce, it’s always best to contact a legal representative in employment or human rights law to ensure they are meeting the requirements of the Human Rights Code.

If you have questions about human rights or employment law issues, Contact us at Dean Cservenyi LLP. We have paralegals who can help answer questions about proceedings regarding the HRTO.