We live in an extremely sensitive world these days. It seems that it’s almost impossible to say or do anything without upsetting someone. And while this may be frustrating to some, consider the alternative. We may feel like we have to walk on eggshells, especially in our places of work, but I know I would rather be around people who are overly careful, than around an environment where people can get away with discrimination or harassment.
Whether in a management position or not, it’s important to understand exactly what constitutes discrimination so that perhaps we don’t have to tread as lightly for lack of knowledge of the issue.
After all, any time someone treats another person badly, whether it’s verbally or in writing, the impact on the recipient and other third-party bystanders is bad enough. But if this behaviour happens in a workplace, where employers have a legal obligation to provide a psychologically safe workplace, the situation is much worse.
So, let’s spend this time taking a look at facts, examples, and definitions of workplace discrimination.
We all know that feeling when negative energy surrounds someone who is unhappy at work. Emotions are infectious and negative behaviour displayed towards a coworker creates untold misery.
When we label that negative behaviour under the banner of ‘discrimination,’ our minds should immediately switch from something that’s simply ‘bad’ to something that’s potentially illegal.
The Canadian Human Rights commission tells us that discrimination is an action or a decision that treats a person or a group badly for reasons such as their race, age, or disability.Discrimination is an action or a decision that treats a person or a group badly for reasons such as their race, age, or disability. Click To Tweet
These reasons (also called Prohibited Grounds), are protected under the Canadian Human Rights Act.
In addition to this Act (which focuses its attention on federally regulated working environments), every Province and Territory has its own Human Rights Codes as well, which although very similar to the Canadian Human Rights Act, are slightly different depending where you are in the country.
However, there are some fundamental issues that are guaranteed to be the same.
Section 3 of the Canadian Human Rights Act makes it illegal for federally regulated employers and service providers to discriminate against people, or treat them unfairly, based on the following grounds:
- National or ethnic origin
- Sexual orientation
- Marital status
- Family status
- A conviction for which you have been granted a pardon
Now let’s focus in on British Columbia’s Human Rights Code, which forbids discrimination and differential treatment of a person based only on protected characteristics or grounds of discrimination.
Those protected characteristics are a person’s:
- Criminal conviction
- Family status
- Gender expression
- Gender identity
- Marital status
- Mental disability
- Physical disability
- Place of origin
- Political belief
- Sexual orientation
- Source of income.
What Are Some Examples Of Discrimination In The Workplace?
As we’ve just learned, discrimination can have many facets. Here are some examples to help clarify how it can look in the workplace:
- A bank has lending rules that make it unreasonably difficult for new immigrants to get loans. This may be a case of discrimination based on two grounds— race and national or ethnic origin.
- A person is systematically subjected to secondary screening at airports due to the colour of their skin. This may be a case of discrimination based on the grounds of colour.
- An employer that assigns employees to weekend shifts without recognizing that some employees observe the Sabbath and cannot work on those days. This may be a case of discrimination based on the grounds of religion.
- An employer’s physical fitness requirements are based on the capabilities of an average 25-year-old instead of being based on the actual requirements of the job. This may be a case of discrimination based on the grounds of age.
- A female employee with an excellent performance record announces that she is pregnant. Immediately, her employer begins to identify performance issues that lead to her dismissal. This may be a case of discrimination based on the grounds of sex.
- A policy that provides benefits to some married couples but not to others. This may be a case of discrimination based on two grounds— sexual orientation and marital status.
- After having a child, a woman cannot find childcare to continue working overnight shifts and her employer does not allow flexibility by scheduling her on day shifts. This may be a case of discrimination based on the grounds of family status.
- A person is denied a job because of a previous conviction for which a pardon has been granted or a record has been suspended. This may be a case of discrimination based on the grounds of pardoned conviction.
How Do You Prove Discrimination In The Workplace?
Now that we’ve established what discrimination may look like, to prove it has been done, a person must show that there is a connection between the negative treatment that they experienced and one of the personal characteristics (or prohibited grounds of discrimination) listed in the Human Rights Code.
In other words, to prove discrimination, a person is required to show at their hearing that they were subjected to negative treatment because of their gender, place of origin, family status, or any one of the Code-protected personal characteristics.
Even if the discriminatory grounds (e.g. a person’s race) is only part of the reason (as opposed to the only reason) for the negative treatment, it will likely be sufficient proof of discrimination under the Human Rights Code.
However, it may be unclear whether an incident is viable proof. Answering the following questions can help someone determine if they have experienced discrimination that can be proved in a hearing before the Human Rights Tribunal.
I have used the example of place of origin in my phrasing of the questions, although these questions can be asked in relation to any of the personal characteristics listed in the Code:
- Do you have a personal characteristic (such as place of origin) that is listed as prohibited grounds of discrimination under the Code?
- Were you treated differently than others?
- Or, if you were treated the same way as others, did this put you in a different position or have a different impact on you because of your place of origin?
- Did this have a negative impact on you (or put you at a disadvantage compared to others)?
- Is there evidence to show a link between the negative treatment or the negative impact that you experienced and your place of origin?
In many discrimination cases, there is no dispute about questions 1 to 4. However, the last question is often the most difficult factual issue for the Tribunal to determine.
A personal incident that I will always remember occurred many years ago when I applied, and successfully gained employment at a business in British Columbia.
On my very first day, I was introduced to a longtime employee who boldly told me that as soon as he heard that the company was hiring “yet another ****ing limey,” he started a petition to make sure I didn’t get the job.
His language and the intensity behind his words will always stay with me.
A coworker standing next to me, hired that same day as well (but who had grown up in Maple Ridge, BC), laughed when he heard the comment from this employee and told me to dismiss it as the ‘ramblings of a dinosaur.’ It still hurt like heck.
But don’t just take my word for the negative impact that discriminatory behaviour has.
According to a 2014 study by the University of Texas in Austin, “The experience of ‘everyday discrimination’ at work, in public, and in services such as restaurants, puts a strain on participants’ mental health and increased susceptibility to behavioural disorders.”
What Should I Do If I Feel That I Am Experiencing Discrimination In The Workplace?
First of all, it’s critical to remember that every employer is responsible for providing a psychologically safe workplace—which means the absence of discrimination.
However, if someone believes that they are being discriminated against they should look for guidance in the appropriate company policy that deals with Discrimination.
At the very minimum, employers must respond to internal discrimination complaints by:
- Having a complaint mechanism in place
- Having a corporate awareness of what constitutes discrimination
- Taking the matter seriously once an internal complaint is received
- Acting promptly (including investigating the internal complaint)
- Providing the complainant with a healthy work environment
- Communicating its actions to the complainant in response to the complaint.
The policy will often suggest that the employee speak to the person directly. Should a conversation not be something that the employee wants to engage in, or feels comfortable having, they should speak to their supervisor or manager.
And remember, at any time, Human Resources professionals are there to assist, guide, and advise all staff.
There is always something that can be done about discrimination in the workplace—Doing nothing should never be considered an option.