a) Employers
Employers have the primary obligation to make sure their workplace is free from discrimination and harassment. Employers are expected to proactively provide a workplace where human rights are respected and employees afforded equal opportunities. This includes working with unions to negotiate collective agreements that are consistent with the Code.
Despite proactive measures to prevent human rights complaints, human rights issues will arise from time to time. Employers must respond to allegations of human rights violations in a timely and effective manner. For more information, see Section IV-1 – “Creating a workplace that complies with the Code” and Section IV-12 – “Resolving human rights issues in the workplace.”
Employers violate the Code when they:
- directly or indirectly, intentionally or unintentionally infringe the Code
- constructively discriminate
- do not directly infringe the Code but rather authorize, condone, adopt or ratify behaviour that is contrary to the Code.
When an employee contravenes the Code in the course of employment, the employer may be liable. Under section 46.3 of the Code, this only applies to discriminatory conduct and not to cases of harassment. Under this “vicarious liability” provision in the Code, the employer can be responsible even if it did not know of the discriminatory conduct or, did not condone it, and even if it actively discouraged that conduct. However, proactive steps on the part of an employer will be taken into account by a Tribunal when ordering remedies. This can result in the company having to pay less in damages even when it is deemed to be “vicariously liable.” Also, an employer may be vicariously liable for the acts of third parties, such as consumers, visitors and customers, who discriminate against its employees.[26]
The employer is also liable for the acts of an employee who is a “directing mind” of a corporation, who discriminates against or harasses anyone in a way contrary to the Code, or who knew of the harassment and did not take steps to remedy the situation.
In general terms, an employee who performs management duties is part of the “directing mind” of a company. Even employees with only supervisory authority may be viewed as part of a company’s “directing mind” if they function, or are seen to function, as representatives of the organization.
Non-supervisors may be considered part of the “directing mind” if they have assumed supervisory authority or have significant responsibility for guiding employees. For example, a member of the bargaining unit who acts as a lead-hand may be considered to be part of the “directing mind.”
An employer’s liability for harassment or discrimination committed by its employees and agents is not necessarily limited to the workplace or work hours. Human rights law includes the notion of the “extended workplace.” Employers could be liable for behaviour or actions that occur away from the physical workplace, but that have implications or repercussions in the workplace. For example, staff may be held liable for discriminatory incidents taking place during business trips, company parties or other company-related functions. An organization providing services to the public may be found responsible for an employee’s off-duty actions if they lead to a poisoned environment and a denial of the right to equal treatment in services.[27]
Example: A school board does not discipline a teacher for public anti-Semitic comment and conduct during his free time. This was found to have poisoned the education environment for the Jewish students, given the teacher’s position of trust and influence within the school. The infringement of the teacher’s Charter right to freedom or religion was justified.
Employers cannot contract out of the protections in the Code with employees or with unions. An employer, jointly with employees and (if applicable) the union, is responsible for finding the most appropriate way to accommodate employees’ needs that are protected by the Code. The fact that a union is not cooperating in providing accommodation does not relieve the employer of its own responsibility to accommodate. This obligation is limited only by undue hardship. See also Section III-4d) – “Unions” and Section IV-12f) – “Contracting out versus settling a complaint.”
b) Senior managers
Senior managers are part of the “directing mind” of the employer, and their actions are considered to be those of the organization itself. Therefore, an employer is liable for any breach of the Code committed by a senior manager.
If a senior manager knew of workplace harassment or a “poisoned environment” and did not take steps to remedy the situation, the organization could also be held liable. Upon becoming aware of harassment, a senior manager should take prompt and appropriate steps to remedy the situation. This may involve arranging for an independent professional to mediate, to set up dialogue between the parties or to conduct an investigation and, if warranted, to suggest appropriate discipline. Having a clear and effective anti-discrimination policy that is regularly reinforced through training can help a senior manager know what to do in these situations. See also the Commission’s newly revised policy, “Guidelines on Developing Human Rights Policies and Procedures” and Section IV-12 – “Resolving human rights issues in the workplace.”
c) Employees
Employees have a legal responsibility to treat fellow employees in a way that is consistent with the Code. A co-worker who infringes a right of another employee can be named as a personal respondent in a human rights complaint. This may include co-workers who are at the same level in the organization, and also discriminatory treatment by any employee against any other employee in the organization, regardless of their level.
An employee would also be expected to take part in good faith in human rights training and educational activities. Employees should also know that the Commission has recommended that organizations collect data as a means of proactively identifying, preventing and addressing racial discrimination. When they follow the principles set out in the Commission’s policies, measures such as employee surveys can improve the workplace for all employees, and should not be opposed by employees without justification. Employees who have concerns about an employer’s approach to data collection can refer the employer to the Commission’s Guidelines for Collecting Data on Enumerated Grounds Under the Code. Inappropriate data collection could be the
basis for a human rights complaint.
An employee who seeks accommodation for a need related to a ground in the Code must give enough information to the employer to verify the need, and must specify what accommodation is required. For example, an employee requesting accommodation for a disability or pregnancy-related need may be expected to provide information from a qualified professional confirming the existence of a need, and identifying the accommodation that would be appropriate. An employee with a caregiving need arising from family status may, in some cases, legitimately be asked to provide documentation about his or her needs.
Example: An employee has a lengthy history of absenteeism, and has in the past been disciplined for failing to provide valid reasons for absences. When this employee requests flexible start and finish times to address a new eldercare responsibility, the employer asks for more information to verify that the need exists.
d) Unions
Unions are important partners in creating a non-discriminatory workplace. Unions and employers have a joint duty to make sure that workplaces are free of discrimination and harassment.
Example: A pre-operative transsexual sought the union’s assistance with a complaint to her employer about her use of the women’s washroom. The union did not help her. The union was found to have discriminated against the complainant because it did not represent her interests as it would have done for other union members because of her gender identity.
As part of a "best practices" initiative, unions should work together with employers to develop internal policies and procedures. Unions should also take a proactive role in human rights training and education for their members, and also for the entire workplace.
A union and its representatives may have many different roles in the workplace. For example, a union that employs staff has to comply with the Code when making decisions about hiring or requests for days off because of Code needs. As a vocational association, the union is also required to treat its members equally and to take steps to prevent or address discrimination against union members. On a personal level, a union representative may be an employee who provides services to the public (such as working in a call centre) and to other employees (such as helping them file grievances). This employee will have to comply with duties under the Code related to all three of these roles – employee, service-provider and union representative. The actions a representative or employee of a union takes when carrying out union duties may be considered to be the actions of the union. This could give rise to the union being liable for discrimination.
i) Collective agreements:
A union should try to make sure that collective agreements explicitly protect human rights, and avoid negotiating provisions that may have a discriminatory effect. More and more collective agreements and company policies include clauses specifically related to preventing and resolving incidents of discrimination and harassment in the workplace. However, even where such provisions are not clearly stated, the substantive rights and obligations in the Code are still incorporated into each collective agreement an arbitrator has jurisdiction over.[28] Parties to a collective agreement or other contract cannot contract out of the provisions of the Code.
Example: A provision in a collective agreement states that probationary employees may be dismissed within three months for any reason, including disability. An employee is dismissed after he missed a week of work because of illness. Despite the provision in the collective agreement, this employee is protected by the Code.
ii) Duty to accommodate:
An employer and a union share responsibility for providing accommodation to the point of undue hardship. A union’s duty to accommodate under the Code could arise in the following types of situations:
4. When making a rule, usually in the collective agreement, unions and employers must make sure that it does not have discriminatory effects. Although an employer who has charge of the workplace is in a better position to create accommodation measures, a union still must co-operate in working to find appropriate solutions. Unions share the obligation to remove or alleviate the source of the discriminatory effect.[29]
Example: A school custodian complained that the school board and the union had failed to agree on how to modify his shift hours. As a Seventh Day Adventist, he was unable to work Friday afternoons. The Supreme Court of Canada determined that the union, together with the employer, had a duty to accommodate the school custodian, short of undue hardship.
5. A union must support an employer’s efforts to comply with the Code and may be found to have discriminated for impeding the reasonable efforts of an employer to accommodate.
Example: An employer agreed to accommodate an employee’s religious beliefs by rescheduling a work-day from Saturday to Sunday, but only if she did not receive Sunday premium pay as required by the collective agreement. The employer’s attempt to accommodate was blocked by the union who insisted on premium pay. The union infringed the Code by blocking the accommodation measure.
6. A union should consider its duty to accommodate when engaging in collective bargaining or otherwise representing members who are employed to provide services to persons identified by the Code. [30]
Example: A union opposes the hiring of a specialized educational professional to help accommodate a student with a learning disability, because the person is not part of the bargaining unit. Unless the union can show that the hiring will cause undue hardship on the basis of one of the three elements set out above, disruption to the collective agreement will not be enough to establish undue hardship.
While there may be cases where the impact of an accommodation request on other union members is so large that it becomes undue hardship, the Supreme Court of Canada has said that it is not permissible to hide behind a collective agreement to avoid human rights obligations. On their own, neither changes to a collective agreement nor the threat of a grievance amount to undue hardship. On the other hand, significant interference with the rights of others will justify a union’s refusal to consent to certain accommodation measures.[31]
iii) Membership in a union:
It is discriminatory for employees to have to join a specific union group based on gender or another Code ground.
Example: A teacher’s union passed a by-law that made female teachers join a teacher’s association for women. Male teachers had to be members of another association, even though one collective agreement applied to both organizations. A Tribunal found that requiring the complainants to belong to a women-only organization was discriminatory, because it violated their dignity and reinforced stereotypical views that men and women had different needs.
e) Employment agencies
Subsection 23(4) of the Code states that an employer cannot use an employment agency to hire people based on preferences related to age, race, sex, disability or other grounds.
Example: A company cannot ask an agency to send only "persons of European background" to fill a receptionist position.
Employment agencies cannot screen applicants based on discriminatory grounds, and are not allowed to keep records of client "preferences" of this kind.
If a temporary employee is referred by an agency and then needs help to meet his or her special needs, it would be the joint responsibility of the agency and the employer to arrange accommodation.
Employment agencies must make sure that the staff they send on assignments are in a workplace that is free from discrimination and harassment. If they learn of a situation that may violate the Code and do not take action, they may be named in a complaint.
Example: A company hires a woman from an employment agency on a temporary basis to file documents. Her supervisor makes jokes and derogatory comments about the woman’s religious beliefs. This conduct is a form of harassment and the employee has the right to file a claim against the company. If the employment agency, learning of the harassment, does not take steps to remedy the situation, the person could also file a claim against the employment agency.
f) Franchisors
Franchisors may be held liable for discriminatory conduct or harassment by a franchisee depending on the nature of the franchise agreement. This is more likely to happen when the franchisor has significant control over the franchisee’s operations, or when the franchisor contributes directly or indirectly to the discriminatory conduct or harassment. Franchisors are also responsible for their own actions and policies.
g) Non-employees
A non-employee, such as a client or a friend of an employee visiting the workplace, who acts in a discriminatory or harassing way, cannot personally be named as a respondent in a human rights complaint. However, an employer may be liable for the behaviour of non-employees, depending on the facts of the situation, including the employer’s knowledge of and control over the situation, and what could have been done to prevent or stop the behaviour.
[26] See, for example, Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (CanLII) (Laskowska).
[27] Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825.
[28] Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157 (Parry Sound).
[29] Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 (Renaud).
[30] Ontario Human Rights Commission, “Equal Access to Education for Students with Disabilities During Strikes” Fact Sheet, online: www.ohrc.on.ca/en/resources/factsheets/disabilitystrike/view.
[31] Renaud, supra note 29.