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Category Archives: Discrimination

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It’s in our DNA: Bill S-201 and Genetic Discrimination

Posted in Accommodation, Accommodation, Disability, Discrimination, Federally Regulated Employers, Human Rights, Privacy, US vs. Canadian Employment Law

When dealing with requests for accommodation, employee absenteeism and other medical circumstances, employers are routinely faced with the challenge of balancing employee privacy interests against the operational interests of the business when determining how much medical information and what kind of medical information employers can request.  The analysis typically centres on the issue of what is reasonable in the circumstances, with diagnostic information being considered to be a clear delineation point as to what employers may request and not request.  At the Canadian Senate in January, the question of the protection personal health information took on a new angle, centering … Continue Reading

Festive Celebrations and the Workplace

Posted in Discrimination, Employee Obligations

With the holiday season in full swing, employers are in the midst of the annual balancing act between festive celebration and appropriate workplace conduct. As the saying goes, an ounce of prevention is worth a pound of cure.  Here are some tips for planning and hosting a successful and (hopefully) incident free workplace holiday party.

1.  Alcohol Consumption

Many holiday parties involve the provision of alcohol to employees.  In an effort to prevent over-consumption, consider (i) setting a fixed period of time where alcoholic beverages will be served; (ii) providing a controlled number of drink tickets per guest; (iii) hiring … Continue Reading

Sorry but I can’t help you with your purchase, I’m being accommodated by my employer

Posted in Accommodation, Disability, Discrimination, Human Rights, Retail

It is part and parcel of a retail employee’s job to interact with customers and assist them in making purchases.  However, if an employee with a disability/injury has trouble in performing this essential duty, how far must the employer go in accommodating that employee?

A recent Human Rights Tribunal decision dealt with an interesting accommodation request by an employee with a wrist injury.  That employee requested that she should be allowed to tell customers (when working alone) that they had to return to the store at a later date so they could be assisted by another employee who did not … Continue Reading

Employers Should Take Advantage of Human Rights Summary Hearings

Posted in Discrimination, Human Rights

Summary Hearings at the Human Rights Tribunal – A Short History

A few years back, the human rights system in Ontario was overhauled. The Human Rights Commission was to no longer investigate complaints and refer them to the Human Rights Tribunal (if they had some merit).  All cases were to now go directly to the Tribunal for adjudication. Applicants (who are primarily employees) would have “direct access” to the Tribunal.

While the goal was to speed up the process, many employers soon found themselves forced to attend a hearing to defend frivolous complaints. The Tribunal responded by adopting a summary … Continue Reading

Ontario Human Rights Commission Releases New Policy on Mental Health Disabilities and Addictions

Posted in Discrimination, Human Rights

On April 16th, we reported on a new policy published by the Ontario Human Rights Commission (the Commission) entitled Policy on Preventing Discrimination Because of Gender Identity and Gender Expression. Last week, the Commission published a new policy entitled the Policy on preventing discrimination based on mental health disabilities and addictions.

This new policy was created out of recognition that persons with mental health and disabilities “have faced considerable and longstanding discrimination, stigmatization and social exclusion in Canada and across the world”.   For Ontario employers, this is an important policy as the Ontario Human Continue Reading

“Men’s Day” Customer Appreciation Event Discriminatory

Posted in Discrimination, Human Rights, Termination

In McConaghie v. Systemgroup Consulting Inc., 2014 HRTO 295, the Ontario Human Rights Tribunal (HRTO) found that an employer discriminated against a female employee on the basis of sex by sponsoring a customer appreciation event that was for men only. The HRTO also found that the employer retaliated against the employee after she complained about the event to her supervisor.

The case is an important reminder to employers to be cautious with respect to the type of events that they sponsor and the importance of record keeping when performance managing employees.… Continue Reading

Family Status and Childcare Obligations – The Federal Court of Appeal Weighs In

Posted in Discrimination, Employee Obligations, Family Status, Human Rights, Litigation

On May 2, 2014, the Federal Court of Appeal (FCA) rendered its decision in Canada (Attorney General) v. Johnstone (Johnstone), along with its decision of an appeal in a similar case called Canadian National Railway v. Seeley (Seeley). A full e-alert with our discussion of these cases and the implications for employers can be found here.

Both Johnstone and Seeley involved mothers of young children who requested relief from a workplace schedule or assignment which would have left them without adequate childcare. In Johnstone, the employee worked a rotating shift and requested a … Continue Reading

Ontario Human Rights Commission Releases New Policy on Gender Identity and Gender Expression

Posted in Accommodation, Discrimination, Human Rights, Policies

On April 15, the Ontario Human Rights Commission (the Commission) published a new comprehensive policy entitled Policy on preventing discrimination because of Gender Identity and Gender Expression. According to the Commission, the policy

is a complete revision and update of the Ontario Human Rights Commission’s (OHRC’s) original Policy on discrimination and harassment because of gender identity first published in 2000.

Its stated purpose is to discuss and promote understanding and awareness about trans people and their rights under the Ontario Human Rights Code (the Code) and to help employers recognize and meet their legal obligations under the Code not … Continue Reading

Daughter’s Facebook Post Causes Father to Lose $80,000 Settlement From Age Discrimination Lawsuit

Posted in Age, Discrimination, Human Rights

A recent decision from the Florida Third District Court of Appeal provides some valuable guidance for Canadian employers wishing to keep settlement agreements strictly confidential. Patrick Snay (Snay) had settled an age discrimination lawsuit with his former employer Gulliver Preparatory School (the School). The School agreed to pay him $80,000, but the settlement agreement contained the following confidentiality clause:

Confidentiality…[T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement…A breach…will result in

Continue Reading

No Perfect Attendance Bonus to Employee on Workers’ Compensation Leave of Absence

Posted in Benefits, Compensation, Pensions, Discrimination, Human Rights, Policies

Managing absenteeism and dealing with the associated costs are among the most difficult things employers face. Accordingly, many employers try to incentivize employees to improve their attendance by providing bonuses based on meeting attendance thresholds. Seems simple enough. However, what if an employee is off work on a disability leave? That employee is off work through no fault of his/her own yet otherwise had perfect attendance. Should such an employee be able to claim the attendance bonus?

A recent arbitration decision says “no”.… Continue Reading

Beauty Pageant Case Provides Example of Welcomed Use of Summary Hearings by the Human Rights Tribunal

Posted in Discrimination, Human Rights

Back in April 2013, we reported on a Human Rights Tribunal (the Tribunal) decision where a summary hearing was granted and an application was dismissed as having no reasonable prospect of success. A newly released decision involving a beauty pageant demonstrates the Tribunal’s increasing and welcomed use of the summary hearing mechanism.… Continue Reading

“Genetic Characteristics” as a Prohibited Ground of Discrimination?

Posted in Discrimination, Human Rights

A recent private member’s bill introduced by a Liberal MPP in the Ontario legislature would add “genetic characteristics” as a prohibited ground of discrimination to the Ontario Human Rights Code (the Code). As currently drafted, “genetic characteristics” would be defined as “genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease”.… Continue Reading

Be Prepared to Justify Employee Dress Code Policies

Posted in Discrimination, Employee Obligations, Human Rights, Policies

Most people have experience with an employee uniform or dress code policy (mine is “business casual”). There are often very good reasons to have employees look or dress a certain way. It can assist with productivity, promote professionalism and branding, and ensure uniformity. As such, employees’ attire/appearance can be a legitimate concern for employers. However, to the extent that a policy has no rational connection to a business need or unduly infringes on an employee’s self expression, it may be successfully challenged by unions.… Continue Reading

Five Employment Issues Facing Retailers

Posted in Accommodation, Discrimination, Employment Standards, Human Rights, Leaves of Absence, Wage and Hours

This post was republished in the August 2013 issue of the Canadian Labour Relations and Employment Topics newsletter, published by CCH Canadian Limited.

I am fortunate in my practice to work with clients in different industries, ranging from healthcare and social services to traditional manufacturing. Although employment laws generally apply to all industries in much the same way, there are usually certain issues that some industries face more than others. This is true of many clients I assist in the retail industry.… Continue Reading

Male Customer’s Challenge to “Ladies Night” as Discriminatory Found to Have No Reasonable Prospect of Success

Posted in Discrimination, Human Rights

With the help of some interesting facts, a recent decision of the Human Rights Tribunal of Ontario (HRTO), demonstrates the type of case for which a summary hearing will be granted. In Maclean v. The Barking Frog, 2013 HRTO 630, the applicant, Kyle Maclean, filed a complaint after he and some friends attended a local bar and he was told that the cover charge was $20 for men and only $10 for women. The applicant was affronted, unwilling to pay the cover, and did not enter the bar. The question at hand was whether that amounted to discrimination … Continue Reading

Alberta Human Rights Tribunal Orders Reinstatement and Back Pay in Age Discrimination Case

Posted in Age, Discrimination, Human Rights

As larger numbers of employees continue to work past the age of retirement given the elimination of mandatory retirement in most jurisdictions, employers must remain cognizant of their continuing obligations under human rights legislation. In the recent decision of the Alberta Human Rights Tribunal in Cowling v. Alberta (Employment and Immigration), 2012 AHRC 12, the complainant, Joan Cowling, filed a complaint of discrimination on the basis of age. Ms. Cowling worked as a Labour Relations Officer for the Province of Alberta for eight years on fixed term contracts. In 2007, Ms. Cowling reapplied for a position at the … Continue Reading