Description:

In episode 9, we’re covering a big one: discrimination. We start out with a good old-fashioned pop quiz on protected grounds in Ontario. Jill and Dana explain what discrimination can look like, how it is not necessarily just being treated differently, and steps to take if you are experiencing discrimination in the workplace.

Full episode transcript below:

Narrator: This podcast is produced by Nelligan Law. 

Dana DuPerron: Welcome to All Worked Up. The podcast where two employment lawyers break down real life workplace issues that affect real people. I’m Dana DuPerron.

Jill Lewis: I’m Jill Lewis and we’re senior associates at Nelligan Law. And we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers. 

Dana DuPerron: Welcome to All Worked Up. I’m Dana.

Jill Lewis: I’m Jill.

Dana DuPerron: Jill, what’s got you all worked up this week?

Jill Lewis: OK, this week we are talking discrimination. And well, we’re certainly worked up about discrimination. We don’t like discrimination.

Dana DuPerron: No, absolutely not. 

Jill Lewis: Especially in the workplace. 

Dana DuPerron: No. I mean anywhere, but we’re going to talk about it in the workplace right? But one thing, and I don’t know if this is where we talk about this, but let’s just jump right in.

Jill Lewis: OK, let’s do it.

Dana DuPerron: When we talk about discrimination we’re usually talking about discrimination on the basis of a protected ground under the Human Rights Code.

Jill Lewis: Yes.

Dana DuPerron: So I have people come in all the time who say I’ve been discriminated against because they’re treated differently. And when we’re talking about it in that legal sense it’s typically not just because you’ve been treated differently than your colleague. Like you know they get paid more or something. Or you got in trouble for something they didn’t get in trouble for. Things like that, that we can – that you know may have some other issue in the workplace, but it’s not discrimination.

Jill Lewis: A big piece of that was, is vaccines. And you know being put on leave for not getting vaccinated. I know a lot of people said it’s discrimination. It could be, like we can talk about that maybe if it’s because you’re not getting the vaccine due to religion and you’re going to get into like the grounds. But ultimately it was you’re being treated different. You know you could be treated different for all the people in the lunch room watch the Bachelor and so they’re all going to have lunch with the boss and talk about the Bachelor. Maybe they’re being treated different, but that’s not based on a protected ground. 

Dana DuPerron: Right, so there could be other issues. With being treated differently for whatever reason there could be other issues. But we’re talking about discrimination under the Human Rights Code. 

Jill Lewis: Yes.

Dana DuPerron: Which is what we mean. When we talk about discrimination in the employment context. So that is based on – do you have a list? I can – you have the list? OK, OK good.

Jill Lewis: I do yeah so we don’t – OK I’ll quiz you. Ready set go.

Dana DuPerron: Yeah, OK.

Jill Lewis: What are the grounds?

Dana DuPerron: Sex, gender identity, ethnic origin, citizenship, disability, perceived disability, age.

Jill Lewis: Oh good one. Family status?

Dana DuPerron: Family status. 

Jill Lewis: Did you know record of offense?

Dana DuPerron: Record of offense, but it’s if you have received a pardon.

Jill Lewis: OK.

Dana DuPerron: You have to have been pardoned for it and then you can’t be discriminated against it yeah.

Jill Lewis: OK, that’s the one.

Dana DuPerron: Yeah.

Jill Lewis: Ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, yeah I think you’ve got them all.

Dana DuPerron: Religion. 

Jill Lewis: Religion.

Dana DuPerron: Yeah.

Jill Lewis: So yeah so that’s what’s in the Code right? That’s what’s like those are the groups of people. And there can be intersectionality of course right? We can talk about that too. But these are the specific groups in the Code. And under the Code you are – your employer is not allowed to treat you differently, or discriminate you on one of these grounds, based on one of these grounds. So when we’re talking about whether you’ve been discriminated against that’s the first step is you have to point to which ground we’re talking about. Which sort of like goas back to that whole vaccine thing. OK, well which ground? So you’re being treated differently. So that’s actually the first step. And why.

Dana DuPerron: Yeah, why? Yeah. 

Jill Lewis: Just because?

Dana DuPerron: Is it because of the colour of your skin?

Jill Lewis: Exactly.

Dana DuPerron: It’s because you’re a woman?

Jill Lewis: Yeah.

Dana DuPerron: Because of your religion, because of your gender identity or sexual orientation, why? What is it?

Jill Lewis: Yeah, yeah and some of it can be because you’re pregnant and that can link back to like gender and sex.

Dana DuPerron: Right.

Jill Lewis: Then there’s also like by association. So you can be discriminated against by association. So because your partner is part of a certain ethnic group. We don’t really see those super often, but it’s certainly a piece there too.

Dana DuPerron: Yeah, something to keep in mind. I don’t know that I’ve ever seen a client about an issue like that.

Jill Lewis: Yeah, yeah, yeah.

Dana DuPerron: But that doesn’t mean it doesn’t exist. 

Jill Lewis: I’m sure it does exist. 

Dana DuPerron: Yeah, I’m sure it does yeah.

Jill Lewis: And another thing about discrimination is it’s really hard to prove. 

Dana DuPerron: It certainly can be. And part of that is because a lot of it is sometimes a feeling. Like people aren’t generally – they can be, but they’re generally not overtly racist, sexist you know no one’s probably going to say to you that answer is wrong because you’re a woman. 

Dana DuPerron: Yeah, exactly.

Jill Lewis: But if you’re constantly getting talked over and the men aren’t. Or you know if your ideas are constantly brushed aside, or there’s little like kind of snide comments. Things like that.

Dana DuPerron: Yeah, the subtle, so we call that subtle discrimination. And it’s hard to pinpoint it. And it’s usually not a specific incident right? Like it’s not one time somebody yelled at me and said yeah, it’s because you’re a woman. Exactly, you have people roll their eyes at you, or somehow treat you differently because, and you’ve got that gut feeling that you – yeah you’re being treated differently. And so the only real way I mean you can use – you can compare yourself to your coworkers. So I mean we’ve done that before where we’ve looked at OK how long you know, if somebody’s not being promoted. 

So if you’ve been with the same company for like 10 years and you’re just not getting that promotion. If you can go back and be able to show that in the last 10 years every male colleague who’s come through seems to get promoted that starts to show a pattern. But that’s hard. I mean that’s like you’re going through years of discrimination. And it’s tough.

Jill Lewis: So what would you do then? Because if we’re looking at – we’re not saying don’t proceed. If you think you have a – if you think you’re being discriminated against in employment it’s absolutely worth it to speak to someone. My recommendation on the front end would be for people to document the different experiences that they’ve had. And their different – if you feel like it’s something feels wrong start making notes as things happen or whatever. So that you have – like right away after anything happens. And keep records. 

Dana DuPerron: Yeah, send yourself an email or something, or send yourself … 

Jill Lewis: Yeah, send yourself an email at the same time. 

Dana DuPerron: Send not a colleague, but a family member, there was that recent sexual harassment case. She like emailed her?

Jill Lewis: Yeah, her spouse immediately yeah.

Dana DuPerron: Her spouse and stuff. Like I don’t know just yeah put it on the record somewhere.

Dana DuPerron: Yeah, start taking notes because what’s also difficult, and I see this in a lot – like when we talk about different topics. Like discrimination, harassment, bullying. Often clients come to talk to you and it’s because they have this feeling right? And they’ve had this feeling for a while that things aren’t right. But … 

Jill Lewis: Yeah, I’ve got this feeling inside – sorry.

Dana DuPerron: Exactly, but not in such a cheerful way.

Jill Lewis: They come singing into our office. They come singing into our office.

Dana DuPerron: Naturally, they have this feeling and then when they describe it you they can say I’m being discriminated against. I’m being bullied. I’m being harassed. They use these like conclusory statements and can’t always remember the exact examples that you need to demonstrate it.

Dana DuPerron: Yeah, yeah.

Jill Lewis: Because we can’t just say you’re being discriminated against. We have to say this person’s being discriminated against because of this happened, this happened, this happened, this happened.

Dana DuPerron: Yeah, I mean discrimination you can feel it. It’s subjective certainly can be subjective. But we have to be – if we want to prove this to a Human Rights Tribunal. If we want to bring this forward to an employer we have to be able to show it objectively too right? 

Jill Lewis: So we have – yeah, we have to get those examples. They’re so small but they really do add up. And the courts will listen to that type. They will absolutely accept that type of evidence. That you know, if you’ve got this pattern over the past several years of you know so and so’s the male colleagues their comments are you know taken by their employer in a meeting. And every single time the women speak it seems to get brushed off or something like that. Which can seem like you don’t even notice it at times. But it certainly adds up. Yeah, so if somebody comes to see us and they feel that they’ve been discriminated against. Or sorry going back to what you were saying before Dana. If you feel like you are being discriminated against make records. 

Dana DuPerron: Yeah, make records at the same time. Now keep in mind there are pretty strict limitation periods when it comes to Human Rights complaints. You have to act within – you have to make a Human Rights complaint within one year of the discriminatory event, or the last event in a pattern if it’s discriminatory. You know, how do you know when that last event’s going to be? But if it’s been a little while and nothing else has happened and you have concerns about it, speak to someone. 

We can also in Ontario hook – I was like you can hook it onto your civil claim you know? 

Jill Lewis: Oh yeah.

Dana DuPerron: And I can’t help but do that with my hands. And if you were suing for like wrongful dismissal and it’s also that your employment was terminated, and it’s because of the colour of your skin, or your religion, or your sex, or whatever you can make that claim in the law suit as well. In that case not entirely clear if the limitation period is one year, or two years. We recommend you watch for one.

Jill Lewis: Watch for one. No, watch for one. Always watch for one.

Dana DuPerron: Watch for one yeah, that should be in your mind. So you know if something has happened don’t let just like a long time go without doing anything about it. And then hope like you know a year or more after the fact you can be like hey, this thing happened years ago.

It has to be like an ongoing pattern to be able to do anything about it.

Jill Lewis: Yeah, so it can be really difficult. Because you’ve got that one year. Often times it is sort of like a pattern and there’s – it’s sort of an ongoing. Ongoing discrimination and then yeah you start to feel sometimes people feel am I crazy? Am I thinking this up in my head? Am I making this up in my head? Like I don’t know if I should go forward with it. If you do have, or if there’s any like specific examples making a record on your own is great, but also making a record with HR as often as you can. 

And that can be really hard. Because sometimes you don’t have HR right? The person you have to complain to is the person who is maybe making some of the statements and things like that. So that can be really difficult, but if you can tell someone, and if you can get it on a record again. So if you’ve had, like I don’t know how many times clients have come in and said I’m being discriminated against. 

Or I’m being harassed. And it’s sometimes like an informal complaint. Like you know it’s something they mention. It’s really hard to go forward and make those formal complaints. So even if you don’t do it formally just follow up with HR right afterwards. Like just thanks again for talking to me about this potential discrimination. Something. Something where you feel like – 

Dana DuPerron: Yeah, it’s on record.

Jill Lewis: It’s on record somewhere. 

Dana DuPerron: Yeah, that also kind of protects you. Like if someone does something like that. Like if someone says – goes to HR and says hey, I feel like something’s off here. Like I’m being treated differently because of whatever and then their employment is terminated like shortly thereafter? That’s … 

Jill Lewis: Yeah, that’s sort of getting suspish, yes.

Dana DuPerron: That doesn’t really pass the smell test right? Which is what you – which is what we’re kind of looking at in these discrimination tests. And discrimination cases right? Is like mm-hmm, is this bad treatment?

Jill Lewis: Yeah, because if you’re terminated let’s just say it’s like a regular without cause termination. If you think if just 1% of that decision was made because of your race, your gender, any of the protected grounds that’s it. That can be discrimination right?

So it can be hard to prove, but all we have to do is prove that it was just like a little part you know? Because companies will often – they’re often not coming forward and they’re like we’re going to fire all the women. Goodbye you know? It’s often like we’re restructuring, or giving this person a promotion. And here’s what we’re doing.

Dana DuPerron: Yeah, we’re restructuring out the people who have family commitments that haven’t been able to you know? 

Jill Lewis: Yeah, yeah, yeah, yeah.

Dana DuPerron: [inaudible [00:12:05] all of the time through the pandemic or something along those lines right?

Jill Lewis: Yeah, yeah that discrimination yeah. If you’ve raised an issue I mean that’s huge because that can be … 

Dana DuPerron: Yeah, you can rely on that.

Jill Lewis: You can rely on that. You can rely on it possibly for reprisal as well. Like possibly, and it’s not that there’s like a lot of meat there, but it’s something that you can always raise. And then yeah, then if you are terminated, or if you’re demoted, or you receive sort of like a bad performance review afterwards it’s helpful to be able to rely on. 

The other thing we were going to talk about – of the other thing I wanted to talk about was discrimination too can be like the systemic discrimination in the workplace. So workplace policies, policies that suggest that employees should attend like after work – not like an after work party. Like I don’t know, let’s say it’s you should be at so and so networking events, this many networking events. And the ones who don’t come are penalized. 

Dana DuPerron: Right.

Jill Lewis: You know that could be discrimination against somebody based on family status right?

Dana DuPerron: Yeah, or if there are events where alcohol is served and that’s against someone’s religion or something it could be along those lines. So it’s – if it doesn’t feel right or if you’re being treated differently and you think it’s because of one of these reasons it makes sense to talk to someone. One thing that I’ll note, like the damages from the Human Rights Tribunal are typically not huge. 

That doesn’t mean it’s not – it’s absolutely like a very valid ground to proceed. And I think that those damages are getting bigger as time goes on. But something that people often are interested in is you can seek reinstatement where your employment has been terminated on a prohibited ground. Under the Human Rights Code where you’ve been discriminated against. It’s a very – it is an extraordinary remedy. So it’s not something that’s going to typically be granted.

In a lot of circumstances you know, where someone has been discriminated against. Putting them back in that situation is not good for anyone. 

Jill Lewis: Yeah, I don’t think we’ve ever really seen it a whole lot.

Dana DuPerron: It happens on a few and far between sort of basis. And it’s usually where there’s like a big employer who can afford the person and put them somewhere else or whatever. But.

Jill Lewis: But.

Dana DuPerron: Go on.

Jill Lewis: Well I was going to say the damages piece, it can really lend itself to OK, you’re entitled to reinstatement. Maybe that’s not appropriate. So maybe what’s more appropriate is a financial right? Compensation. Some sort of back pay. They do that at the Tribunal. The Tribunal would do that right?

Dana DuPerron: Yeah, as an employer that can be huge. That they can say we would have reinstated you, but we’re not going to. So you get back pay form like the date of this until this date. Which there’s no cap on really.

Jill Lewis: No, let’s play that out for a second OK? So you’re terminated. You believe it’s because you’re a woman. You bring a claim to the Human Rights Tribunal.

Dana DuPerron: And you can show it.

Jill Lewis: And you can show it yeah, yeah let’s say you’ve got like slam dunk. You’ve got that like the email right? You’ve got that smoking gun. You’ve got an email that’s like “get rid of these ladies.”

Dana DuPerron: Yeah. Cut them.

Jill Lewis: Cut them out. OK so you bring – yeah, you bring your claim to the Tribunal. 12 years later – no I’m joking it’s not going to be that long but … 

Dana DuPerron: It might be. 

Jill Lewis: It might be. It can be hard. There’s certainly backlogged and so we don’t want anyone to think this gets resolved overnight.

Dana DuPerron: No.

Jill Lewis: But that being said, maybe it takes two years to get all the way to the Tribunal. And the Tribunal finds in your favour yes Dana absolutely you were fired because you were a woman. You are entitled to reinstatement.

We no longer think that’s appropriate. So what you’re going to be entitled to is – they don’t do notice periods. Bu it’ll be back pay for that two years yeah. From the date of termination.

Dana DuPerron: And damages on top of that.

Jill Lewis: And damages on top of that. 

Dana DuPerron: Which again those damages might not be huge, but that back pay could be.

Jill Lewis: Yes, that back pay could be huge. So for employers that is certainly something to be considerate of. 

Dana DuPerron: Yeah, you don’t want to just be – like you can’t just be like OK, well we’re terminating you and we’re taking that risk. Like because it can be … 

Jill Lewis: Yeah, it could be huge yeah. And it can take even longer than two years. Human Rights Tribunal is like you said the damages are a little bit lower. Can’t get our legal fees from the Tribunal itself, but it can still like certainly we take these cases on. And we’re aware of this. Right? Like we know what the claim can handle. We know what the file can handle. And that’s why we use also you know the Superior Court right? If you’ve been terminated likely we can bring a claim for wrongful dismissal and then yeah.

Dana DuPerron: There you go, you’ve got to do the hook. Do the hook.

Jill Lewis: Yeah, hook that on. And again you can get the reinstatement, the back pay. Like it adds up. It starts … 

Dana DuPerron: Yeah, order those same amounts yeah. OK so that’s like an individual. So you think you’ve been discriminated against. Write it down, talk to HR. Check if your workplace has policies and follow those policies. Like anti-discrimination policies or anything. And if there’s a process in place like you’re better off following that process first. Speak to a lawyer. What if you’re an employer?

Jill Lewis: OK, so employers. So if somebody comes to you, or just from the?

Dana DuPerron: In general what does an employer do about discrimination?

Jill Lewis: In general employers OK don’t discriminate.

Dana DuPerron: Yeah – 

Jill Lewis: What do employers do?

Dana DuPerron: – training for managerial staff about what discrimination is?

Jill Lewis: Training, policies. Like you’ve got to update those policies. You should be updating them. I think they actually might be more for the harassment piece, but annually like they’re recommending policies be updated annually. 

Dana DuPerron: Yeah, and an update doesn’t even mean – like it doesn’t mean you need a huge overhaul.

Dana DuPerron: Like you redo it no, no, no.

Jill Lewis: It means someone reads it and is like is this still compliant? Does it still make sense yeah.

Dana DuPerron: Does it still make sense yeah, yeah exactly. Especially if like timelines don’t make sense in there. Like you may have something that says you’re going to investigate within like seven days or something. That doesn’t normally make sense so maybe you just need to update that. Like and protocols on who, where? Sorry where and who are these individuals going to talk to? So yes we’ve got HR. Or we don’t have an HR so it’s this person and if this is the person that’s making the statements then who else are they going to go to? Like to have some of those alternatives. So that’s something that employers need to be doing annually. And you can do it with a lawyer. You can use like sort of an HR rep you know, to look at those policies for you. 

Please don’t get one off the internet. Pretty please.

Dana DuPerron: Oh yeah, no.

Jill Lewis: Pretty please? Pretty please just don’t get it off the internet?

Dana DuPerron: Having those policies and following them will go a long way towards protecting you from these claims. And having training and stuff because like if you deal with an allegation of discrimination serious as an employer that’s going to do a lot to mitigate the risks flowing from it. 

Jill Lewis: Yeah, yeah and I think the proper training too right? Like using somebody with the appropriate experience. Like not you know, the OK you guys are just going to go and read like a pamphlet. Or you’re going to go do a video or something like. Really understanding like how subconscious some of this discrimination really is, and it can come up in every part of the employment process. So from the very beginning from the job postings. Wasn’t there like a case a few years ago where – what was the job posting? Looking only for women. Was it a restaurant? OK, I’m totally blanking now, but there were – I think there was a job posting like looking specifically for – no men. Men between a certain age.

Oh man, I think it was like a CBC article or something like that too. And they were looking for men of a specific age for a job that didn’t require. Like it wasn’t like a bona fide yeah. So that could be discrimination just based on the job posting. So it starts there. It starts with those job postings. You have to be really careful about that.

Jill Lewis: The service industry? Like how much, like you remember I mean when women had to wear heels and stuff and … 

Dana DuPerron: The heels yeah.

Jill Lewis: Like those kinds of things, you can’t be treating people differently on those grounds.

Dana DuPerron: Absolutely yes, yes. The interview process right? You can’t – although you know it’s nice to like chat about your personal life, like you have to be really careful saying stuff like “so tell me about your family, and your child.”

Jill Lewis: Suggesting if you’ve got kids or something yeah.

Dana DuPerron: Yeah, so like what’s your yeah, your caregiver responsibilities like? What time of the day do your kids need to be picked up from daycare? Yeah, you know like where are you from?

Jill Lewis: Things to be mindful of yeah.

Dana DuPerron: No, where are you really from? Like I’m shocked that that’s still a question.

Dana DuPerron: Yeah, yeah.

Jill Lewis: Where are you really from? Citizenship can be one. There was another case that they were requiring – this was once the employee was hired I believe, but they required that he be a Canadian citizen. And then terminated him when they found out he wasn’t. So there was some piece there too. So it can go, range throughout the entire process. So those people especially like your HR, your managers like people who are going to be the ones speaking to potential employees and employees on a daily basis should be trained constantly right?

Dana DuPerron: Right and if there is an incident use that as an opportunity to maybe reflect and have additional training. Not by saying hey, this is where so and so discriminated against so and so. And using that as an example, but just you know internally thinking OK, maybe this is time for a refresher. 

Jill Lewis: Yeah, yeah, and I really think it needs to come from the top down.

Dana DuPerron: I agree.

Jill Lewis: Right? Like so often like everybody – it’s usually sort of like the – your general employees that are sent on these you know discrimination seminars. And you’re like where’s the boss? I don’t know. I think it really needs to start at the top. And it tricked down it just does. You’re the attitude around this. Are you, you know if you’re in that position are you rolling your eyes during this? Are you making jokes? Are you … 

Dana DuPerron: Yeah, set the example yeah, yeah.

Jill Lewis: Yeah, like be the example because it’s serious. And like we do have these biases. You can’t just walk around and pretend that we’re all like perfect. You do have them, so you’re trying to recognize them. Like when you’re in the interview process and you’re chatting with people, and like – and then you decide to hire. And they all seem to look like you. 

And it is really easy to say I just want people that I connect with. I really connected with that person. You want to ask yourself like why are you connecting with that person. Like not the others.

Jill Lewis: Yeah, those kind of subconscious biases yeah.

Dana DuPerron: Is it because of like a – yeah, yeah. So I think really like teaching that and like – but practicing what you teach yeah.

Jill Lewis: And there’s been a real shift and last this is – last thing I’ll say. There’s been a real shift I think in recent years towards behaviours and attitudes and things that are not OK. That maybe were seen as OK before. And training to help people understand those changes and stuff I think is also helpful. 

Dana DuPerron: Yeah, I think so too.

Jill Lewis: So recognize the differences yeah.

Dana DuPerron: Different training policies. Yeah, I mean for employers if somebody does come to see you, take it seriously. Like take that complaint seriously. You may want to ask a few more questions. And you probably want to have it recorded, written down.

Jill Lewis: Yeah, and maybe speak to your own lawyer at that time yeah.

Dana DuPerron: And probably call your lawyer yeah.

Jill Lewis: Yeah, let them know. Keep them involved sort of at the front end rather than after the fact.

Dana DuPerron: Exactly, exactly because you don’t want sort of like a constructive dismissal down the road. Where they’re pointing to you did nothing.

Jill Lewis: Yeah, you’ve got to stick handle it a little bit better yeah.

Dana DuPerron: Yeah, yeah, yeah so … 

Jill Lewis: That’s got us all worked up.

Dana DuPerron: Woo, that’s got us worked up. We are worked up about that. So that’s discrimination in a nutshell. You know we do have grounds. We do have specific categories. You’re not just discriminated against because you’re treated differently.

Jill Lewis: Yeah, it has to be on one of those grounds yeah.

Dana DuPerron: OK, well thanks guys. This is All Worked Up.

Jill Lewis: All Worked Up.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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