A NEW LOOK AT WORKPLACE LAW AS SEEN THROUGH THE EYES OF AN EMPLOYMENT LAWYER AND FORMER JOURNALIST. FIT FOR EMPLOYERS, EMPLOYEES, AND EVERYONE IN BETWEEN

Open door policies also make for best practices

Open door policies also make for best practices

Every few weeks a news story comes along that offends our Canadian sensibilities. 

Most recently it was an advertisement for a basement apartment in Toronto, where the unit owner included in his apartment listing the phrase "black guys pls no call." The ad was later modified, and the owner defended himself by explaining that he does not speak English, but this of course does not undo the overtly racist sentiment. 

However these examples of discrimination are not just relegated to landlords. They also appear frequently in job postings, sometimes from solely-owned businesses, but can come from major corporations as well.

In Regina, the Regina-Qu'Appelle Health Region apologized earlier this summer for a job posting that belittled First Nations applicants. The Administrative Assistant posting included the sentence "As the Native person does not understand our rules, regulations, policies, procedures, or internal structure they should not be expected to live around or according to them." The employer apologized, explaining that the mistake in no way reflects their attitude towards diversity. 

Even Canada's most prolific broadcaster is not immune from this sort of controversy. In 2013, a casting agency on behalf of CBC posted a Craigslist ad seeking talent they described as "Any race except caucasian." The agency pulled the ad quickly, but the National Post reported that the miscommunication may have come from the client themselves. As the agency explained, "We were asked to find a cast of diversity." While casting itself is a unique process, ruling out who can apply in the first place based on race is simply unacceptable. 

These ads may have been simple gaffes on the part of an individual, but they are clear examples of discrimination that is prohibited by human rights legislation. In Ontario, the Human Rights Code (the "Code") prohibits discrimination in employment based on the following grounds:

  • Race
  • Ancestry
  • Place of Origin
  • Colour
  • Ethnic Origin
  • Citizenship
  • Creed
  • Sex
  • Sexual Orientation
  • Gender Identity
  • Gender Expression
  • Age
  • Record of Offences
  • Marital Status
  • Family Status
  • Disability

The list may be long, but it's a crucial one. It means that employers are not allowed to discriminate against anyone because they come from somewhere else, have a long surname, are transgender, pregnant, have children, are religiously observant, walk with a cane, et cetera. There are of course exceptions depending on the nature of the job and some specific job requirements, but these rules apply to most Ontario employers and employees. 

There can be severe penalties for violations of the Code. The Ontario Human Rights Tribunal (the "Tribunal") is a 'direct access' tribunal, which means that individuals are not required to hire a lawyer before filing a complaint. In other words, human rights in Ontario are not just for those who can afford legal services - anyone who has been discriminated on these grounds can have their voice heard.  

The Tribunal can dole out stiff penalties for violations of the code. Aside from awarding monetary compensation for lost income due to discrimination, the Tribunal can also award damages for "injury to dignity, feelings, and self-respect," a catch-all that encompasses the emotional wounds inflicted by these policies. While the Tribunal will not award damages to every single complainant who feels they have been wronged, awards in cases of clear discrimination can climb quite high. Additionally, the Tribunal has the power to implement any remedy that will help the employer comply with the Act. This often includes orders for HR or sensitivity training, or an overhaul of discriminatory workplace policies. 

In Ontario, some of the newest legislation states that preventing discrimination alone is not enough. The Accessibility for Ontarians with Disabilities Act ("AODA") is an Ontario law that is being enacted piece by piece over the decade to help make the whole province, including businesses, more accessible. The timing of the requirements vary based on the number of employees and the nature of the business, but in a short time all businesses will need to be accessible even in their recruitment efforts. 

For employers, any job ads should be screened carefully before posting to ensure that language is not even unintentionally discriminatory. Candidates should be judged based on their skills and experience rather than on the length of their name, or the prestige of their address. An employment lawyer can help ensure that any posted ads are compliant with the Code, and in turn help avoid any unpleasant accusations of discrimination. 

If you are an employer who is already on the receiving end of a discrimination complaint from the Tribunal, contact a lawyer immediately. The Tribunal's complaints process can move quickly, and there are strict deadlines in which employers can reply and have their say. An employment lawyer can help employers navigate the Tribunal process, and work towards a smooth resolution for all parties. 

For employees or potential employees, discrimination should never be concealed with silence. The Tribunal is designed specifically so that anyone can bring their case forward and be heard by those with the power to help make it right. If you have been discriminated against in applying for a job, an employment lawyer can help explain your rights, and suggest the best course of action to ensure that future applicants do not receive the same treatment. 

The bottom line is that open door recruitment policies that welcome all candidates will not only encourage more talent to apply, but will likely help avoid instances of even unintentional discrimination. Otherwise, employers are at risk of having the doors of the Tribunal's hearing rooms hit them on the way out.

Name Your Time and Place: The Unique Requirements of Restrictive Covenants

Name Your Time and Place: The Unique Requirements of Restrictive Covenants

Knock Knock? Not for $3.32 per hour!

Knock Knock? Not for $3.32 per hour!