Employment Discrimination in Canada
Information on country-specific employment/labour law
Prohibitions on discrimination is one of the fastest changing areas of employment law in Canada. In recent years, Canada’s appellate courts have been called upon to rule on such seemingly diverse issues as whether mandatory drug testing in employment relationships is permissible; whether government benefits that refuse to recognize same sex relationships are legal; and whether women are entitled to disability insurance benefits during normal pregnancies. Adjudication of these and other difficult legal questions shows no signs of abating in the foreseeable future. Additional recent developments in Canadian labour legislation include the introduction of compassionate care leave and benefits in some provinces and the elimination of mandatory retirement provisions in most provinces.
In Canada, jurisdiction over employment law, including human rights laws, generally lies with each of the provinces. In addition, the federal government has authority over industries that have a national significance, such as atomic energy, banking, broadcasting, airlines, and railways.
All provinces in Canada have detailed human rights statutes designed to protect employees from discrimination in employment on various grounds. These statutes contain some important differences, and therefore, care must be taken in reading them. Generally, however, most Canadian human rights statutes prohibit discrimination on the basis of race, colour, ancestry, place of origin, ethnic origin or citizenship, creed, sex, sexual orientation, age, record of offences, marital or family status, and handicap or disability.
Legislation also provides specific and expanded definitions for some of these terms. For example, under the Ontario Human Rights Code:
- “Sex” includes the state of being pregnant, thereby protecting pregnant employees from discrimination in employment on the basis of sex;
- “Handicap” generally includes any physical or mental impairment (some cases have held that an impairment must be chronic to qualify as a handicap, and thus the common flu has been held not to constitute a handicap under the Ontario Code), as well as injuries for which workers’ compensation benefits were either awarded or claimed;
- “Record of Offences” means a non-criminal conviction (e.g., careless driving) or a criminal conviction which has not been pardoned; and,
- “Age” is defined as over the age of 18.
Age discrimination is a growing issue in Canada as a result of changing demographics in the workforce. Canadian labour laws do not specify a mandatory retirement age for employees. In principle, older people have the right to be offered the same opportunities in employment, promotion and training as all other workers. Employers cannot refuse to hire, train or promote people simply because they are older.
In the Federal Jurisdiction, mandatory retirement is permitted. Specific laws differ across provinces but most provincial human rights legislation finds the practice of mandatory retirement discriminatory in enterprises under provincial or territorial jurisdiction. This is true in Alberta, Manitoba, Newfoundland and Labrador, Ontario, Prince Edward Island, Yukon, British Columbia, Saskatchewan, the Northwest Territories and Nunavut. Nova Scotia will prohibit mandatory retirement in 2009. In New Brunswick, the human rights legislation does not consider it discriminatory to terminate employment because of the terms or conditions of a bona fide retirement or pension plan. If there is no such plan, employees who are forced to retire can file a complaint for age discrimination under the human rights legislation.
In Quebec, a civil law jurisdiction, it is discriminatory to force an employee to retire because of age under Quebec labour standards legislation. The employee’s right to work beyond a certain age or number of years of service does not preclude an employer from dismissing, suspending or transferring an employee for good and sufficient reason.
Some specific occupations are also regulated by laws and policies that set an age limit. Also, under provincial human rights laws, there is no discrimination when there are bona fide and reasonable requirements for an employment or occupation.
In addition to being protected from discrimination, employees are also protected from harassment in their employment. “Harassment” is often defined as engaging in activity that the employer knows, or reasonably ought to know, is unwelcome. To be prohibited, harassment must be tied to a protected category.
Generally, legislation provides protection against discrimination for job applicants as well as employees. For example, the Ontario Code prohibits employers from discrimination in employment advertisements or applications. Employers are also prohibited from asking questions in job interviews that directly or indirectly discriminate against an applicant on prohibited grounds of discrimination. In Ontario, the Human Rights Commission has extensive policies on how it believes employers should prepare employment application forms and conduct interviews.
Canadian human rights laws define, and restrict, two types of discrimination: direct discrimination and constructive, or systemic, discrimination. Both types of discrimination are illegal, unless an employer can rely on certain limited defences. Direct discrimination occurs when an employer makes a decision because the person belongs to a protected group, such as not hiring a candidate because of his or her race or ethnic origin. Constructive, or systemic, discrimination occurs when a factor or condition exists that has the effect of discriminating against a protected category. For example, an employer operating a plant without a wheelchair ramp may be guilty of constructive discrimination should the absence of the ramp prevent a disabled individual from applying for a position. In this type of case, the employer may not intend to exclude disabled employees, but the situation has a direct negative impact on those employees. Human rights laws provide that individuals in these types of circumstances are entitled to the same protection they would have received had the prospective employer made a conscious effort not to hire them because they were disabled or otherwise belonged to a protected group.