What does discrimination mean?
Discrimination is treating someone unfairly because of their personal characteristics, such as their race, age, sex, or disability. These characteristics also called prohibited grounds. There are 18 prohibited grounds protected under the Human Rights Act (s. 9).
Discrimination comes in many different forms. A person can have an unfair burden put on them, or can be denied a privilege, benefit or opportunity that others enjoy.
Intention to discriminate is not a requirement to a finding of discrimination. It is the impact of the unfair treatment that is significant.
What are some examples of discrimination?
1. During a job interview you are being asked inappropriate questions about child care arrangements, or if you are a parent, or whether or not you plan to have children (discrimination based on family status) and finally you do not get the job based solely on your answer to these questions and not your qualifications or experience.
2. Being fired when you are pregnant (sex discrimination) or are injured and need time off to heal (duty to accommodate).
3. When someone is seeking an apartment for rent and the landlord tells that “no children are allowed” (discrimination based on family status) or they will nor rent to people under 25 years (age discrimination) because “they’re (considered) too noisy and won’t look after the place”.
4. An employer assigns her employees to weekend shifts without recognizing that some employees observe the Sabbath and cannot work on those days (discrimination based on religion).
5. Sometimes a rule or policy, which on its face is neutral, still can have has a discriminatory effect. For example, a policy requires that a person identifies themselves as either male or female (discrimination based on gender identity or expression).
What does harassment mean?
Harassment is a form of discrimination. It happens when a person experiences unwanted and offensive comments and/or conduct because of their personal characteristics. Harassment can include inappropriate comments, jokes, insults, name-calling; spreading malicious gossip or rumours; or inappropriate communication through email, social media, or texts directed at a person because of their race, colour, sex or gender, sexual orientation, etc. Generally, harassment involves a series of incidents. Serious or extreme one-time incidents can also sometimes be considered harassment.
What are some examples of harassment?
1. Sexual harassment: You have moved out of your apartment rental, because of the landlord’s harassing behavior. He would stare at your body or make comments about your appearance. He also entered your apartment without your permission, which you could not stand. You tried to bring this to his attention, but nothing happened.
2. Racial harassment: The son of an immigrant family is attending a local school and has been bullied because he is from Japan. He is called racist names, pushed around in the hallway, and told to “go home” . The parents complained to the teacher and the principal but the school has not taken any action and the bullying has continued. The student does not wish to attend school and his school marks have fallen greatly.
3. Harassment based on religion: A colleague repeatedly makes fun of your hijab. You like your job, but don’t want to go to work and already started looking for other job opportunities. You have complained to your manager, but they did not take your concerns seriously.
What does “quasi-constitutional” mean?
Section 5 of the Human Rights Act states that the Act takes precedence over other Acts where there is a conflict. This means that human rights laws are considered to be more important than other laws where there is a conflict.
What are the legal burdens of proof?
The Complainant must provide legally sufficient evidence to establish a case of discrimination or harassment. The onus then shifts to the Respondent to provide a defense for their actions.
What does prima facie mean?
Prima facie means that the information/evidence provided is legally sufficient to establish a fact or a case at first impression. The Supreme Court of Canada has said that a prima facie case of discrimination is “one which covers the allegations made and which is complete and sufficient to justify a verdict in the Complainant’s favor in the absence of an answer from the Respondent.”
What are the prohibited grounds?
The Human Rights Commission only has the ability to act if the discrimination or harassment happened on the basis of a person’s inherent characteristics. You are either born with these characteristics or develop later on. These characteristics called prohibited grounds.
The following list gives you some ideas of how a person can experience discrimination or harassment based on these prohibited grounds:
Race: you have differences from majority society in your physical or social characteristics, such as skin tone, hair texture, cultural habits, dress, language, accents, as well as religions, political beliefs, and surname.
Colour: your skin colour is visibly different from the skin colour of the majority population.
Nationality: you were born outside Canada and/or you are a citizen of a foreign country
Ethnic Origin: you share cultural practices, perspectives, and distinctions that set apart you and your group of people from another group of people. This category includes people who were born outside of Canada, but also Indigenous people regardless of their birthplace.
Social Origin: your social background or ancestry is a result of the particular geographic area where you are coming from.
Religious creed: your religious or spiritual belief has been in conflict with a requirement, qualification or practice in the areas of employment or services. Religious creed does not have to belong to a particular religion, it could be any faith practices of Indigenous cultures; your unique worldview; or even a way you live your life. This category also includes discrimination or harassment because of wearing religious or spiritual symbols, like headscarf, turban, or tattoo.
Religion: the particular religion you have faith in or you worship (i.e. Islam, Christianity, Judaism, etc.), but also if you are not having religious beliefs of any wildly practiced religions (i.e. being secularist or atheist).
Age: you were considered too old or too young.
Disability: this category includes visible disability; non-visible disability; developmental disability; learning disability; people who are Deaf or hard of hearing; people who are blind or partially sighted; and any mental illness.
Perceived Disability: you are a person without disability, but believed to have or believed to be predisposed to a disability.
Disfigurement: you have a visible condition that effects your appearance, such as burning, scarring, a birthmark, or other facial or body disfigurement that do not cause any functional limitations
Sex: your biological sex as male, female, or intersex. This category also includes a female person who was discriminated against or harassed because they were or they were believed to be pregnant, they were trying to become pregnant, or because of breast-feeding.
Sexual Orientation: you were discriminated against or harassed because of the gender you are attracted to (i.e. heterosexual, homosexual, or bisexual etc.)
Gender Identity: how you feel inside, based on your internal experience of gender, which may not correspond with your birth sex. (i.e. male, female, transgender, two-spirit, non-binary, genderqueer, etc.)
Gender Expression: how you express your gender identity, including your clothing, makeup, hairstyle, and social expressions such as your name and pronoun choice
Marital Status: your status of being single, engaged to be married, married, separated, divorced, widowed or living in a common-law partnership. Also includes discrimination against you because of the person who you are married to.
Family Status: your status of being in a parent and child relationship (i.e. you have a child or an elderly parent to take care of). Also includes parent and child “type” of relationships, even without blood or adoptive ties, but with similar relationships of care, responsibility or commitment.
Source of Income: as defined in the Human Rights Act, receiving income or employment support under the Income and Employment Support Act, 2002.
Political Opinion: your political belief or support of a political party. Also includes non-partisan or politically neutral beliefs.
Conviction for an offence: you were previously convicted for an offence, and as a result you were not hired for a job, you were fired from a job, or you were denied a promotion. This category only applies to employment related discrimination or harassment.
Association with other individuals: because of your friendship, kinship or other relationship with an individual or a group of individuals identified by one of the prohibited grounds.
Retaliation: you were discriminated or harassed because previously you filed a human rights complaint.
What are the protected areas?
The Human Rights Commission only has the ability to act if the discrimination or harassment happened in one of the following protected areas:
At work or while applying or interviewing for work (employment): applies to all forms of discrimination that happen at work, including discriminatory policies (i.e. not hired for a job; fired from a job; not getting a promotion).
While accessing health care, education, or other public services: applies to every service that is available to the general public including hospitals, medical clinics, schools, adult training facilities, grocery stores, clothing stores, beauty salons, penitentiaries, hotels, bed and breakfasts, restaurants, food trucks, taxi companies, and etc.
While renting a home or an apartment or leasing a business space: including discriminatory treatment or harassment when renting or trying to rent a home whether from the owner or by way of a real estate agent. This category also includes leasing or trying to lease a business space.
In a newspaper or online ad (publications): applies to advertisements, announcements, or other published materials on the radio, television, or social media with the intention to discriminate against a person or a group of people (i.e. discriminatory job or classified advertisement).
In a contract: includes different types of contracts, such as employment contract, rental agreement or collective agreement with discriminatory content.
While looking for disability-related accommodation: this category includes requests for accommodation or support to reduce or remove barriers faced by the individual as a result of visible or non-visible disability.
Membership in a trade union: applies to situations where a person is excluded from becoming a member, is expelled or suspended from membership, or is discriminated against as a member.
Equal pay: applies to situation where an employee receives lower rate of pay than other employees who are working under the same or similar working conditions and this work requires same or similar skills, effort and responsibility.