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2. What is "discrimination"?

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a) Defining discrimination

Discrimination is not defined in the Code but usually includes the following elements:

  • not individually assessing the unique merits, capacities and circumstances of a person
  • instead, making stereotypical assumptions based on a person’s presumed traits
  • having the impact of excluding persons, denying benefits or imposing burdens.

Many people wrongly think that discrimination does not exist if the impact was not intended, or if there were other factors that could explain a particular situation. In fact, discrimination often takes place without any intent to do harm. And in most cases, there are overlaps between discrimination and other legitimate factors.

Example: An older man applies for a job at a trendy women’s clothing store. The young woman who interviews him finds him pleasantly similar to her favourite grandfather and tells him this as a compliment. Later, the man is told that he does not have the right qualifications, and that the person hired had “more energy” and could relate better to the mainly female clients. This may be discrimination based on age and gender, even though it is clear the interviewer liked the man on a personal basis, and the person actually hired may have been more qualified for the job.

In many cases, discrimination results from a tendency to build society as though everyone is the same as the people in power – all young, one gender, one race, one religion or one level of ability. Failing to consider many perspectives, or not planning to include all people, may result in barriers to access for persons identified by the Code. Such barriers, even if unintended, are discrimination.

b) Negative attitudes, stereotypes and biases lead to discrimination

It is a principle of human rights that persons should be judged on their individual attributes, skills and capabilities, rather than on stereotypes, prejudice or assumptions. Prejudice is a strong dislike or negative feelings held by someone about another person or group. Negative attitudes and stereotypes may lead to harassment and discrimination, and affect a person’s ability to both get and succeed in a job.

These types of attitudes can be expressed as "isms" (ageism, sexism, racism, etc.) and refer to a way of thinking about other persons based on negative stereotypes about race, age, sex, etc. When people are stereotyped, all people in the group are given the same characteristics, regardless of their individual differences.

"Isms" refer mainly to attitudes, while discrimination involves actions. An example is treating someone in an unequal way due to one of the grounds listed in the Code. While racism, sexism, etc. will not always lead to discrimination under the Code, they are often the cause of discrimination and harassment. Therefore, it is important from a human rights perspective to address acts of discrimination and also ageist, sexist, racist, etc. attitudes that exist in a workplace.

c) There are many forms of discrimination

When asked to identify discrimination, many people think only of situations of open or “overt” harassment. As well as harassment, the Code prohibits many other kinds of discrimination, such as systemic discrimination or failing to accommodate Code-related needs.

Discrimination can take many forms. In some cases, discrimination may be direct and intentional (for example, if a person or group treats another person differently on purpose because of a Code ground). This type of discrimination generally arises from negative attitudes and biases relating to that ground.

Example: An employer rejected a Black candidate for a job after meeting her. He was visibly shocked and turned her down flat, without asking about her credentials. When asked what was wrong, he said something about maintaining the company image.

Discrimination exists when rules, standards or requirements that appear to be neutral have a discriminatory impact on people identified by the Code. In some cases, direct discrimination takes place through another person or other means.

Discrimination can also occur when an employer adopts a practice or rule that, on its face, discriminates on a prohibited ground.

Example: A workplace adopts a rule of not hiring women who wish to start a family. This would be direct discrimination based on sex and family status.

Example: The head of a company instructs the organization’s receptionist not to take applications from job seekers from a certain racial or ethnic background.

Example: A placement agency refuses work to a bisexual, lesbian or gay person, because the company using their services told them to.

In these three examples, the people giving the instructions can be held responsible for discriminating. The persons who followed the instructions to discriminate have also engaged in discrimination – they cannot claim to have just been following orders.

d) Discrimination because of association

Section 12 of the Code states that a person cannot be discriminated against or harassed because of his or her association, relationship or dealings with another person identified by a ground in the Code. This protection exists whether or not the person being discriminated against is identified by the same ground in the Code.

Example: A White employee is refused a promotion because she has a close friendship with a Black employee. The White employee has experienced discrimination because of association with a person identified by the Code ground of “race.”

Example: A parent of a child with a severe disability is fired after missing work too many times to deal with medical emergencies. The employee has experienced discrimination because of the intersection between “family status” and association with a person identified by the Code ground of “disability.”

See also Section III – “Grounds of discrimination.”

e) Subtle discrimination

In some cases, discrimination is subtle or covert. Intent or motive to discriminate is not a necessary element for a finding of discrimination – it is sufficient if the conduct has a discriminatory effect.

Subtle forms of discrimination can often only be detected after looking at all of the circumstances. Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture, may lead us to think that discrimination based on a ground in the Code was a factor in how the person was treated.

Example: A woman is one of four people granted job interviews, from a pool of several dozen people who sent in resumes by mail. When she appears in person, the interviewer seems surprised and uncomfortable, does not make eye contact, and seems to hurry through the interview. The woman feels that the interviewer assumed that she was a lesbian based on aspects of her gender presentation, such as her hairstyle and clothing. She later learns that she did not get the position, but the company does not explain its decision.

Example: A Black vice-principal repeatedly tried to get promoted to the position of principal. When she couldn’t, she filed a human rights complaint. Altogether, the evidence showed that there were irrelevant references to her race during interviews and/or discussions about transfer opportunities. Black teachers who asked for equitable practices were told “not to expect things to change overnight.” Transfer and promotion decisions were influenced by considerations of race.

It can be hard to determine if subtle discrimination is a factor in such situations. You may need to investigate and analyze the total context of the alleged behaviour, comment or conduct. This would include thinking about evidence that compares how others were treated in a similar situation, or evidence that a pattern of behaviour exists. Discrimination based on a Code ground may be found even if there were other legitimate reasons for decision or treatment, as long as it was one of the factors.

The following types of treatment in employment may indicate subtle discrimination based on the Code:

  • being excluded from formal or informal networks, such as after-hours get-togethers or office parties
  • being denied mentoring or developmental opportunities such as secondments and training that are available to other people
  • differences in management practices, such as excessive monitoring and documentation or deviating from written policies or standard practices
  • disproportionate blame for an incident
  • being assigned less desirable jobs or duties.

The following actions may also be hints that racial discrimination is happening:

  • treating normal differences of opinion as confrontational or insubordinate when racialized persons are involved
  • characterizing normal communication from racialized persons as rude or aggressive
  • penalizing a racialized person for failing to get along with someone else (such as a co-worker or manager), when one of the reasons for the tension is the co-worker or manager’s racially discriminatory attitudes or behaviour.

Discrimination may be found to occur even when there has been no overt or implied reference to a Code ground. However, if comments linked to a Code ground are made, they can be further evidence that discrimination has been a factor in the way someone is treated. Similarly, a finding of discrimination may be made when someone makes negative comments about a person advocating for human rights protections or equitable treatment.

f) Systemic discrimination

One of the more complex forms of discrimination is systemic or institutional discrimination. Systemic discrimination refers to policies or practices that appear to be neutral on their surface but that may have discriminatory effects on individuals based on one or more Code grounds.

Example: A small company is proud of its intensive team-building approach. Every other week, all staff are expected to attend gender-specific sporting activities such as wrestling and football with their “husbands and wives.” Many of these events take place on evenings and weekends in places that are not fully accessible. People who do not attend these events are less successful at building the internal networks that lead to promotions. Employees who are female, single, gay or lesbian may not feel welcome at these events. People who have care-giving responsibilities after work or who use mobility aids, such as wheelchairs, would likely not be able to attend these events.

Systemic discrimination can overlap with other kinds of discrimination, such as harassment, and may arise from stereotypes and biases. The definition of systemic discrimination used by the Commission includes the following three elements:

  • patterns of behaviour, policies or practices
  • part of the social or administrative structures of an organization
  • position of relative disadvantage created for persons identified by the Code.

People can experience systemic discrimination differently based on the intersection of various grounds of discrimination, such as gender, disability, place of origin, and so on. In the example above, a racialized or single woman with a disability would be at a triple disadvantage.

The following three considerations can be used to identify and address systemic discrimination:

  • numerical data
  • policies, practices and decision-making processes
  • organizational culture.

Use these three elements as a basis for actively monitoring for systemic discrimination and measures to address it. This is discussed in more detail in Section IV-1e) – “More about how to proactively identify and address systemic discrimination.”

g) Workplace rules that are not “bona fide”

Workplace rules, policies, procedures, requirements, qualifications or factors may not be openly discriminatory, but they may create barriers to achievement and opportunity. This kind of discrimination is specifically prohibited under section 11 of the Code. In the past, this type of discrimination was viewed as a specific category called “constructive discrimination” or “adverse effect discrimination.” Now, the impact on an individual or group is no longer viewed as the only determining factor – the focus is equally on both the rule and its impact. If the rule is not inclusive and does not accommodate individual differences to the point of undue hardship, it is discriminatory.

Example: A workplace introduces a new attendance management program that allows employees to take six days off per year. The program provides for disciplinary sanctions, up to and including termination, for each extra absence, regardless of the reason. Although this program is applied equally to all employees, it has not been inclusively designed and does not take into account the need to accommodate differences between employees due to family status, disability or other Code grounds.

To be upheld as non-discriminatory, or a bona fide (bona fide means “good faith” or “genuine”) occupational requirement, an employer must show that the standard, factor, requirement or rule:[6]

  1. was adopted for a purpose or goal that is rationally connected to the function being performed
  2. was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal
  3. is reasonably necessary to accomplish its purpose or goal, because it is not possible to accommodate the person without undue hardship.

As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship. It is not enough to keep discriminatory standards and supplement them by accommodating people who cannot meet them. This ensures that each person is assessed according to his or her own personal abilities, instead of being judged against presumed group characteristics.[7] For more general information, see Section III-2m) – “Failing to design inclusively, remove barriers and accommodate.” See also Section IV-8 – “Meeting the accommodation needs of employees on the job.”

h) Reprisal and threat of reprisal

Every person has a right to claim and enforce his or her rights under the Code, or start or take part in proceedings under the Code without reprisal or threat of reprisal. These protections are provided in sections 7(3) and 8 of the Code. Reprisals for (a) claiming or enforcing a human right, (b) refusing to discriminate directly or indirectly, or (c) rejecting sexual advances or solicitations are violations of the Code. The protections from reprisal apply to complainants, witnesses, advisors, representatives of complainants and witnesses, investigators and decision-makers or management who support a person raising human rights issues.

People are protected from reprisal when they file a formal human rights claim. They are also protected when a person exercises rights available under the Code or under an employer's internal human rights policies. Employees should be able to raise human rights issues and have them dealt with fairly. They should not be punished for having done so. Employees who seek accommodation related to grounds such as creed, disability or family status should not be treated as less valuable or less committed to their work as a result. The following situations would be viewed as reprisal contrary to the Code:

Example: An employee believes that he was not promoted in his job because of his race. He tells his manager that he will contact a lawyer to see about filing a human rights claim. The next day he is fired.

Example: An employee quits her job after finding a new one and making a sexual harassment complaint under the Code against her former employer. She discovers that her previous employer contacted her new employer and made negative comments about her because of her complaint.

Example: An employee believes that he was given an unfair performance appraisal and passed over for skills upgrade training because he is older than other workers in his department. After he launches an internal complaint, he is demoted and transferred to another department.

Example: A teacher gets part-time work to balance her caregiving responsibilities with her work. However, she finds that her employer will no longer approve her requests for training opportunities, because the employer perceives her to be “on the parent track.”

It is also a contravention of the Code to take reprisal or retaliate against someone who refuses to follow instructions to discriminate against another person, or who helps someone to enforce their rights under the Code.

Example: Women in a company approach a manager in the human resources department with allegations of sexual harassment by the president. The manager raises the allegations with the president and in response to his requests for information, is told “let it go, if you know what is good for you.” The manager investigates and verifies the allegations, and prepares a memo outlining the evidence uncovered for the Board of Directors. As a result of his involvement in the women’s sexual harassment claims, the president suddenly fires him. This may be found to be reprisal.

i) Harassment

Subsection 5(2) of the Code states that:
Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

Harassment on any of the Code grounds can amount to discrimination. Although not directly mentioned in section 5(2), harassment because of sexual orientation has been found to be a form of discrimination based on sexual orientation that is a violation of the Code. Persons can file complaints alleging harassment because of gender identity under the ground of “sex.” Harassment may arise from stereotypes based on the intersection of more than one Code ground.[8]

Example: An employer makes many sexual comments to a female employee of mixed Métis and Black ancestry. She was exposed to harassment based on both race and sex because she was a young woman the employer could assert economic power and control over. His comments arose from racist assumptions about the sexuality of Black women.

“Harassment” refers to comments or actions that are unwelcome or should be known to be unwelcome. This definition, set out in subsection 10(1) of the Code, includes both subjective and objective elements:

  • How the conduct would be viewed by a reasonable person, taking into account the perspective of the person being harassed (this is the objective element).
  • The subjective views of the person being harassed. For example, a White male supervisor might not take issue with being referred to as “the Chief.” To an Aboriginal person, however, the term may be very insensitive.
  • The subjective views of a person who has harassed someone do not determine whether a finding of harassment will be made. Harassment can be found to exist even if the harasser is not aware of how his or her behaviour is being received. In some cases, it will be obvious that the conduct or comments are offensive or unwelcome. In other cases, conduct or comment may not on their face be offensive, but the harasser should still reasonably know that they are unwelcome because of how the other person reacts.

The person being harassed does not need to object to the harassment for there to be a violation of the Code. Some persons who are being harassed do not object because they are afraid of what will happen if they speak out. Sometimes people respond by becoming angry, using strong language or becoming emotional. Many people being harassed try to cope by playing along or responding the same way in return. These are all common ways for a harassed employee to keep some form of personal power in a vulnerable situation, to regain favour or just to get by. Tribunals have recognized that these types of responses are understandable and do not defeat a claim of harassment.

Example: An employee is exposed to racial discrimination and harassment in the workplace. Knowing that the company’s director does not take kindly to “tattle-tales,” he does not complain right away. Instead, he copes by laughing it off and saying, “Yeah, that’s a good one.” If the comments ought to be known to be unwelcome, this would amount to harassment even though the employee has not objected.

To assess these situations accurately, you will need to apply the subjective and objective elements of the test and be aware of the power dynamics that are happening.

Example: Bob, a senior manager, is well known for making racist and homophobic comments. These are indulgently referred to as “Bob-isms” by the president and other senior executives. In this workplace culture, it would be “career suicide” to object or show any sort of disapproval of such comments. Instead, Bob’s staff respond by laughing and teasing him about his British heritage and receding hairline. Bob may still be liable for harassment, even though none of the employees objected. In effect, employees cannot disagree with his comments because of the workplace culture created by Bob, and condoned by the other senior executives.

Harassment requires a “course of conduct.” This means that a pattern of behaviour or more than one incident is usually needed. However, one serious incident may create a poisoned work environment – see the next section for more details.

When a person is singled out and treated differently because of a Code ground, even if the differential treatment does not include clear reference to the Code ground, there may still be a Code violation.

Example: In a workplace, the only gay employee is repeatedly made the brunt of practical jokes and is ridiculed by his co-workers for no apparent reason. The workplace has a history of homophobic attitudes. Even though the jokes or actions do not directly refer to the employee’s sexual orientation, it may be inferred that the treatment is based on sexual orientation.

Employers, people acting for employers, co-workers and other persons in the workplace, such as clients, are prohibited from harassing employees at work.

Management has the responsibility to prevent and address situations that may allow harassment to develop or continue. Employers also may be liable in a human rights complaint if they knew of, or should have known of, harassment and could have taken steps to prevent or stop it. A person who has the authority to prevent or discourage harassment may be found responsible or "vicariously liable." For more information about organizational responsibility, see Section III-4 and Section IV-12 about dealing with human rights allegations in the workplace.

j) Poisoned work environment

Insulting or degrading comments or actions in a workplace based on Code grounds may cause employees to feel that the workplace is hostile or unwelcoming. When comments or conduct of this kind have an influence on others and how they are treated, this is known as a “poisoned environment.” Even one comment, if serious enough, may cause a poisoned environment even if it does not amount to harassment, which requires a course of comment or conduct.

Members of a group protected under the Code who are not the specific targets of a discriminatory comment or action may also have a right to bring a complaint. Being exposed to negative or hostile treatment that is racially motivated has a negative impact on other employees, and may leave them wondering if they are also the target when they are not present.[9]

Example: A Chinese woman works in a bakery where racial slurs and stereotypical language are common in the kitchen. Although these remarks are directed at her Black co-workers, she has been subjected to a racially "poisoned environment."

A poisoned environment cannot, however, be based only on subjective views. There should be objective facts to show that the comments or conduct result in unequal or unfair terms and conditions and an infringement of the Code.

Management has the responsibility to prevent and address situations that may create a poisoned work environment. A workplace that allows a poisoned environment to develop or continue may be the subject of a human rights claim. For more information about organizational responsibility, see Section III-4 – “Legal responsibility for human rights at work,” Section IV-12 – “Resolving human rights issues in the workplace,” and Section IV-12h) – “Dealing with formal human rights complaints and applications.”

k) Sexual harassment

“Harassment because of sex” is prohibited in section 7(2) of the Code. Recent case law has indicated that sexual harassment may also be a form of discriminatory treatment under section 5(1).

Sexual harassment refers to comments or actions based on sex or gender that are unwelcome or should be reasonably known to be unwelcome. Research has shown that sexual harassment often involves misuse of power and dominance, usually escalates over time, and is commonly known to exist within workplaces where it occurs. Women who are marginalized due to race, sexual orientation, disability or other Code grounds are particularly vulnerable to sexual harassment in the workplace.

Example: A female graduate student has newly arrived as a refugee and is invited to discuss the possibility of working with a particular professor. Twice the meetings take place at the professor’s home in a sexualized environment including wine, romantic music, intimate discussions of a personal nature, and compliments on the woman’s attractiveness. She goes along with the situation to not jeopardize her chances of getting the academic job. A tribunal decides that it should have been obvious to the professor, given the woman’s vulnerability and her dependence on the professor for the academic opportunity, that his actions were not welcome to her.

As with section 5(2), sexual harassment requires a “course of conduct” such as a pattern of behaviour or more than one incident. One significant incident may be offensive enough to be considered sexual harassment or create a poisoned environment (see above). There is no requirement that a person openly object to unwelcome comments or conduct.

Example: An employee compliments his female co-worker on her appearance one morning as they stand beside the elevator. Objectively, the comment would not be known to be unwelcome. She thanks him and does not indicate any discomfort with this comment. If a human rights claim arose due to this one instance, it would not amount to sexual harassment or a poisoned environment.

Example: A manager repeatedly comments on a female staff member’s appearance during an important business meeting. Her ability to take part as an equal in the meeting is undermined, but she does not want to make a scene. She therefore runs the meeting while ignoring the manager’s inappropriate comments. She later files a complaint. In this case, the comments were clearly unwelcome and would amount to sexual harassment even though the woman has not overtly objected.

The Code prohibits harassment in the workplace because of sex by an employer, agent of the employer or by another employee. Employers are also expected to prevent and address sexual harassment of employees by others they come into contact with in the course of doing their jobs.

Example: A client repeatedly makes sexual jokes about one of the female trainers at a gym. When she complains to the gym manager, he tells her to “lighten up” and does not take any action to stop the harassment. Both the gym and the gym manager may be held responsible for failing to provide a workplace free of harassment, even though the person who harassed the employee did not work for the gym.

Comments or conduct may be found to be sexual harassment even if they are not sexual in nature. Harassment often occurs when a person deviates from established gender norms. Someone may tease a person because of gender-based ideas about how men or women “should” look, dress or behave.

Example: A long-term employee is repeatedly asked by a restaurant’s manager to go on a diet because she does not fit in with more recent hires and the image the restaurant is trying to project. She is expected to wear revealing clothing to bring in more business.

The following is not an exhaustive list, but it can help you identify what could be sexual harassment or inappropriate gender-related comments and conduct:

  • gender-related comments about an individual's physical characteristics or mannerisms
  • unwelcome physical contact
  • suggestive or offensive remarks or innuendoes about members of a specific gender
  • propositions of physical intimacy
  • gender-related verbal abuse, threats or taunting
  • leering or inappropriate staring
  • bragging about sexual ability
  • offensive jokes or comments of a sexual nature about an employee, client or tenant, including those sent by e-mail
  • display of sexually offensive pictures, graffiti, or other materials, including on a computer
  • questions or discussions about sexual activities
  • paternalism based on gender, which a person feels undermines his or her self-respect or position of responsibility rough and vulgar humour or language related to gender.

i) Harassment because of gender identity:

A transgendered person is protected at work from degrading comments or insults because of gender identity (see also Section III-3m) – “Gender Identity”). Gender identity is not currently a prohibited ground, but related discrimination can be addressed as sex discrimination or sexual harassment.

Example: A woman in an office transitions from female to male and is exposed to derogatory comments during this process. This employee is protected by the Code, which prohibits harassment and discrimination linked to gender identity.

l) Sexual solicitation and reprisal

Subsection 7(3) of the Code also prohibits sexual solicitation:
Every person has a right to be free from,

  1. a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
  2. a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

The right to be free from unwelcome advances or requests for sexual favours extends to actions made by a boss, supervisor or other persons in a position of power.

Example: An employer threatens to fire an employee because the employee refused to go out on a date with him or her.

Example: A supervisor makes unwanted sexual advances to an employee. In this situation, it may be implied, directly or indirectly, that a promotion is at risk if the advance is rejected.

Unwelcome sexual advances or solicitation from someone who is in a position to grant or deny a benefit to the person is another form of violating a person’s right to equal treatment. Sexual solicitation or advances can also happen between co-workers where one person is in a position to grant or deny an employment-related benefit to the other.

Example: A worker will only share important job-related information if he or she receives sexual favours from that co-worker.

Finally, a reprisal occurs when an employer, supervisor or other person in a position to grant or withhold a benefit or advancement punishes a person because he or she rejects the sexual request. This kind of “getting even” is against subsection 7(3)(b) of the Code.

Example: A male employee is denied a promotion because he refused a sexual proposition from his manager.

m) Failing to design inclusively, remove barriers and accommodate

The Code requires that the terms and conditions of the workplace, or the functions of a job, be created with a range of abilities and people in mind. This means that employers must do what is necessary to make sure that people protected by the Code are able to take part equally and with dignity in the workplace. Courts have clearly said that it is not enough to design systems that are not inclusive and then accommodate individual needs. Employers may be found to discriminate when they fail to design inclusively, permit barriers to be created or fail to remove existing barriers, or do not meet their duty to accommodate to the point of undue hardship. These concepts are discussed further in Section IV-8 – “Meeting the accommodation needs of employees on the job.”

The Code also requires that workplace or job rules and conditions be modified as needed to meet the duty to accommodate, subject to the standard of undue hardship. Accommodation is a way of removing barriers preventing persons identified by Code grounds from fully taking part in the workplace in a way that responds to their individual circumstances. This duty to accommodate may arise in the context of any of the grounds of the Code. However, it has been addressed in most detail in Commission policies on disability, creed, age, sex (pregnancy and breastfeeding) and family status. The following are common examples of accommodations made by employers:

  • providing equipment, services or devices so an employee can do the essential duties of his or her job (disability)
  • implementing flex-time policies to help employees balance their work with care-giving obligations (family status)
  • modifying uniforms or hours of work so they are compatible with employee’s religious observances (creed)
  • making a room available during working hours for an employee with a small baby to express breast milk (sex – pregnancy & breastfeeding)
  • providing non-gendered washroom facilities for persons who are transsexual (gender identity).

Some kind of operating rules, policies and procedures may be needed for business reasons, such as to comply with heath and safety legislation. However, the provisions of the Code continue to apply and may take precedence, if there is a conflict. This is because of the supremacy of the Code. It is not usually a defence under the Code for an employer to say that it has complied with other legislation.

Example: A company rule says that all people on site must wear a hard hat. A Sikh employee wears a turban and requests accommodation because of his creed. Without conducting an individual assessment of the accommodation request and the risks to the employee or other people in the workplace, the employer denies the request based only on the Occupational Health and Safety Act. Although the employer has complied with the other Act, it has failed to take into account the obligations under the Code.

The Code sets out only three factors for deciding whether accommodation would cause undue hardship: cost, outside sources of funding, and health and safety. A finding of discrimination may be made where appropriate accommodation has not been provided or the process for dealing with the accommodation request was flawed, if the employer does not have evidence to prove undue hardship.

Example: An employee asks to use her sick days to care for her son as an accommodation because of her family status. Without assessing the feasibility of this, the employer says “No, because everyone else will want special treatment.” This employer would be vulnerable to a human rights complaint.

For more information on how to meet the duty to accommodate in employment, refer to Section IV-8 – “Meeting the accommodation needs of employees on the job“ and Section IV-9 – “More about disability-related accommodation.”

n) Racial profiling

Racial profiling is a form of stereotyping based on preconceived ideas about a person’s character. It is discriminatory for decisions to be based on presumed characteristics instead of unbiased assessments of a person’s behaviour. The definition of racial profiling used by the Commission includes the following parts:

  • any action taken for reasons of safety, security or public protection
    • that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion
    • that singles out an individual for more scrutiny or different treatment.

While this form of discrimination most often arises in the context of services, claims of racial profiling may also arise in employment.

Example: An employee’s computer is monitored because he was born in Egypt and is therefore suspected to be a security risk. The computers of other employees are not monitored like this. The employee is fired because he was found to have been visiting non-work related sites during business hours. Although his actions may have broken a work rule about computer use, this only came to light as a result of racial profiling. Thus, this would be discriminatory.

Example: A Black employee is accused of sexually harassing his female co-worker. Initial investigation suggests he may have forwarded sex jokes by e-mail that he received from another colleague. To protect the other employees from violence, the employer bans him from the workplace until the situation is fully investigated. The White employee who had initially sent around the e-mail was given a warning and allowed to continue working during the investigation. This employer may be seen to have engaged in racial profiling in the way he or she disciplined the Black man.

A finding of racial profiling may be made even where race or another race-related Code ground is only one factor in the alleged conduct. In the example directly above, it would have been legitimate for the employer to discipline both employees. If the employer took more severe action against the Black employee because this was his second time and because he was presumed to be more violent because of his race, this would still amount to discrimination. This is because race was one factor, among other legitimate factors, that affected how he was treated.

[6] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union (B.C.G.S.E.U.) (Meiorin), [1999] 3 S.C.R 3. Entrop v. Imperial Oil Ltd. (2000), 50 O.R. 3d 18 (C.A.) at para 77 (Entrop).
[7] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) [1999] 3 S.C.R. 868 (Grismer) at para. 20.
[8] See for example Bayliss-Flannery v. DeWilde (Tri Community Physiotherapy), 2003 HRTO 28 (CanLII).
[9] Lee v. T.J. Applebee’s Food Conglomeration (1988), 9 C.H.R.R. D/4781 (Ont. Bd. of Inq.).

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