Human Rights Claims
What is a Human Rights Violation?
Under human rights laws, certain kinds of discrimination are illegal. In Ontario, for instance, discrimination on any of the following grounds is prohibited: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex (including pregnancy or breastfeeding), sexual orientation, gender identity, gender expression, age, record of offences, marital status (including single status), family status or disability (including perceived disabilities).
What is discrimination?
Discrimination is a nuanced but important concept for employers to understand, because most claims of discrimination come out of the workplace. Usually, discrimination comes out of harmful stereotypes about age, sex, disability, race, or other protected grounds. When those stereotypes result in anyone being excluded, denied benefits or burdened, it constitutes discrimination. Discrimination is not always intentional; sometimes, "equal" treatment produces discriminatory results. For instance, requiring everyone to attend work on a certain religious holiday may disproportionately affect employees of that particular religion.
Is all differential treatment discrimination?
Not all differential or even unfair treatment is discriminatory. Employers can "discriminate" on any basis that is not specifically prohibited by human rights legislation. For instance, an employer might choose to hire a certain candidate over another because of a personal friendship, or because of a particular school they attended.
It is also quite common and perfectly legal for employees to be treated differently based on disabilities, gender, age, and other grounds if (a) such differential treatment is intended as a countermeasure to discriminatory stereotypes; or (b) accommodating the person would impose undue hardship on the employer.
Is it discrimination to fire an employee with a disability?
No. Human rights laws do not provide general protection for misbehaving or poor performing employees. Employees with disabilities (or any other protected characteristic) can be disciplined or fired just like anyone else. All that is required is that you consider the individualized needs of employees with disabilities, and that you accommodate those needs to the point of undue hardship. For instance, depending on an employee's particular needs, the duty to accommodate might require you to permit a medical leave of absence or reassign an employee to light duties.
How can I protect my company from human rights complaints?
The first step towards protecting your company from human rights complaints is to understand your obligations under human rights laws as an employer. An expert employment lawyer can help your company develop good policies, practices, and strategies to minimize risks, and to create a more accommodating, diverse, and positive work environment for your employees.
How can my company handle a human rights complaint?
We strongly advise all employers against attempting to handle a human rights complaint without experienced employment counsel. Even a baseless human rights complaint can be made into a serious problem, for instance, by firing the employee who made the complaint. Even if the original complaint was groundless, that termination might constitute a reprisal under human rights legislation. This is just one example of how an ill-advised response to a human rights complaint can lead to serious liabilities for your company.
What can Hyde HR Law do for my company?
The lawyers at Hyde HR Law are experts on preventing and defending human rights complaints. Human rights law is largely decided by courts and tribunals. It is one of the fastest-developing areas of law, and we make it a priority to stay on top of these developments. We draft human rights policies, deliver human rights workshops to our clients' employees, and have defended and settled countless human rights complaints for our employer clients. Contact Hyde HR Law today for expert advice on avoiding and defending human rights complaints.