Discrimination — Ontario Employment Law

Discrimination in the workplace is not just about unfair treatment; it's about being treated differently because of a personal characteristic protected by law. In Ontario, the primary legislation governing this is the Ontario Human Rights Code (OHRC). This Code prohibits discrimination in employment based on specific 'protected grounds,' which include 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, and disability.

Legally, discrimination can manifest in two main ways. The first is 'direct discrimination,' which is often obvious. An example would be an employer explicitly stating they won't hire someone because of their age or refusing a promotion to a woman because they assume she will soon have children. The second, and often more common, type is 'adverse effect' or 'constructive' discrimination. This occurs when an employer implements a seemingly neutral rule or policy that unintentionally disadvantages individuals from a protected group. For instance, a company policy requiring all employees to work on Saturdays could discriminate against employees whose religion observes a Saturday Sabbath.

To establish a case of discrimination, an employee typically needs to show a 'prima facie' case. This means presenting evidence that, on its face, suggests three things: 1) they are part of a group protected by the OHRC; 2) they experienced adverse treatment in their employment; and 3) their protected characteristic was a factor in that adverse treatment. It doesn't have to be the only factor, just one of them. Once this is shown, the burden shifts to the employer to provide a non-discriminatory explanation.

It's important to understand that discrimination claims can be pursued in two main ways in Ontario: through an application to the Human Rights Tribunal of Ontario (HRTO) or as part of a civil lawsuit in court, often connected to a wrongful dismissal claim. As seen in many court cases, a termination or constructive dismissal may be rooted in discriminatory conduct, leading to additional damages. Navigating which path to take is complex, and the best strategy depends entirely on the specific details of your situation, making early legal guidance invaluable.