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Legal Definitions

What is discrimination?

 Discrimination means treating someone unfairly because of their personal characteristics.

Section 9 of the Human Rights Act lists the personal characteristics that are protected in Newfoundland and Labrador.  These personal characteristics are also called prohibited grounds.

In law, discrimination is defined as a “distinction, whether intentional or not, which is related to certain personal characteristics and which imposes a burden, disadvantage or limits access to opportunities in some way”. Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears, [1985] 2 S.C.R. 536 at p. 329

You do not need to prove that a person intended to discriminate. Sometimes, it is the effect of the unfair treatment which is most important.  If the effect of the unfair treatment is to impose on one person or group of persons, obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.

What are some examples of discrimination?  

 You are asked inappropriate questions about if you have children or are planning on having children) or child care arrangements during a job interview. You do not get the job and feel it is because of your answers to these questions. This might be discrimination based on family status.

  1. You are fired after your employer learns you are pregnant. This might be discrimination based on sex.
  2. You have a disability and your employer refuses to accommodate you or provide you supports at work. This may be discrimination based on disability.
  3. You are an international student and when looking for an apartment the landlord says that he does not like to rent to people under 25 years old and he also asks inappropriate questions about where you are from and what you are doing in the province. This might be discrimination based on age, race, colour or nationality.

What is harassment?

 Harassment is a form of discrimination. Harassment happens when a person experiences unwanted and offensive comments and/or conduct because of their personal characteristics.

The Human Rights Act defines harassment as a “course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.

What are some examples of harassment? 

1. You felt forced to quit your job because of a co-worker’s harassing comments and conduct. He inappropriately stared at you and made comments about your appearance. You tried to bring this to your manager’s attention, but nothing was done about it.

2. our child is bullied at school because you are not from Newfoundland and Labrador. Your child is called racist names, was pushed in the hallway and told to “go home”. You complained to the teacher and the principal, but the school has not taken any action and the bullying has continued. Your child’s marks have suffered.

What are the prohibited grounds?

The Human Rights Act prohibits discrimination on the basis of personal characteristics. A person is either born with these personal characteristics or they acquire them later in life.  These characteristics are called prohibited grounds:

Race: a socially constructed way of grouping people based on stereotypical physical or social characteristics.

 Colour: your skin colour.

Nationality: you were born outside Canada and/or you are a citizen of a foreign country.

Ethnic Origin: you share an origin or background, culture and tradition or language with a group of people.

Religious creed: your religious or spiritual beliefs.

Religion:  your belief in a particular faith or your genuinely held religious beliefs.  It can also mean that you do not have religious beliefs. Religion differs from religious creed in that religion refers to the particular system of faith or worship that a person adopts (eg. Islam, Christianity, Judaism).

Age: stereotypes based on a person’s age of being too young or too old.

Disability: The Human Rights Act defines disability as

    • a degree of physical disability
    • a condition of mental impairment or a developmental disability
    • a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or language, and
    • a mental disorder

Perceived Disability: you have or have had a disability; are believed to have or have had a disability; or have or are believed to have a predisposition to developing a disability.

Disfigurement: you have burns, scars or other disfiguring conditions that are visible, but that do not cause any functional limitations. It is not meant to cover piercing or tattooing, unless for religious or cultural reasons.

Sex: your classification as male, female or intersex based on biological attributes, such as external genitalia, reproductive organs, chromosomes and hormones. Generally, individuals are assigned a sex at birth by a medical professional, often on the basis of their external genitalia. The prohibited ground of sex also includes those that are pregnant or breast-feeding.

Sexual orientation: your physical, romantic and/or emotional attraction to another person.

Gender identity:  your internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum.

Gender expression: how you publicly present or express your gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.

Marital status: your status of being single, engaged to be married, married, separated, divorced, widowed or in a common law relationship. The prohibited ground of marital status also protects you from discrimination because of the identity of the person you are in a relationship with.

Family status: The Human Rights Act defines family status as the status of being in a parent and child relationship. A “child” includes a stepchild and an adopted child and “parent” includes a step-parent and an adoptive parent. The prohibited ground of family status protects you from discrimination if you have special child care or elder care responsibilities.

Source of income: The Human Rights Act defines source of income as being in receipt of income or employment support under the Income and Employment Support Act.

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 discriminated against because of the conviction for an offence that is unrelated to your employment. The prohibited ground of conviction for an offence only applies when you are looking for a job or at work.

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 you previously filed a human rights complaint.

What are the protected areas?

 The Human Rights Commission only has the ability to act if the unfair treatment happened in one of the following protected areas:

At work: you are protected from unfair treatment in all aspects of work (looking for work to losing your job). It can also include your employer’s discriminatory policies and procedures, a lack of accommodation or supports, harassment or equal pay issues.

While accessing public services: you are protected when you’re at school, at a hospital or other health care service provider, at a store or business, at a restaurant or hotel, getting a taxi or dealing with government departments or agencies.

While renting or leasing a home, apartment business

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.

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.

What does the “duty to accommodation” mean?

The Human Rights Act states that employers, landlords and service providers are required to accommodate (provide supports to or make alternative arrangements for) human rights related needs to the point of undue hardship. The accommodation should be tailored to the specific needs of the person seeking the accommodation. The goal of accommodation is to ensure that the person can fully and equally participate in society.

What are some examples of accommodations?

  • Provision of sign language interpreters/close captioning.
  • Flexible work schedules.
  • Re-assignment to a position with fewer safety risks if the employee has a functional limitation.
  • Modifying dress codes to allow for religious needs.

What does undue hardship mean?

  1. What is a good faith qualification or good faith occupational qualification?

The Supreme Court of Canada has established a three-stage analysis for determining whether a discriminatory standard is a good faith (or bona fide) qualification. The standard of proof is on a balance of probabilities and the burden rests with the party seeking to maintain the requirement. The three-stage analysis is as follows:

  • Is the discriminatory standard rationally connected to the performance of the job?
  • Was the discriminatory standard adopted based on an honest and good faith belief that it was necessary?
  • Was the discriminatory standard reasonably necessary to the accomplishment of a legitimate, work-related purpose? (i.e. undue hardship)

British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (1999), 176 D.L.R. (4th) 1, [1999] 3 S.C.R.

  1. What is the definition of undue hardship?

An employer or service provider does not need to prove that it is impossible to accommodate a person just that it would result in undue hardship. Undue hardship is meant to be hard though; and does require significant difficulty or expense. What undue hardship means is different in each circumstance.

  1. How do you know if you’ve met the undue hardship requirement?

Each case is decided on its own facts, but meeting the “undue hardship” test may include a consideration of the following:

  • Financial cost
  • Safety
  • Size of the organization
  • Collective Agreement
  • Interchangeability of work force and facilities
  • Morale of other employers

What does it mean when it is said that human rights legislation is “quasi-constitutional”?

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.

1. What are the legal burdens of proof?

The Complainant must prove that a prima facie case of discrimination exists. The onus then shifts to the Respondent to provide a defence for their actions.

2. What does prima facie mean?

The Supreme Court of Canada has said that a prima facie case of discrimination is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent.”

Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears, [1985] 2 S.C.R. 536 at p. 558

What does the term “without prejudice” mean?

 During mediation, either party can make an offer or suggest an idea for settlement on a “without prejudice” basis. This means that the offer or idea cannot be used later in the investigation process if a complaint is not settled, unless the party making the offer wants it to become part of the file.