Human Rights Complaints at Work in Canada

Human rights laws across Canada prohibit employers from discriminating against or harassing employees and job applicants because of protected grounds, such as disability, sex, pregnancy, race, religion, age, sexual orientation, gender identity and family status. Employers must also accommodate employees' needs related to those grounds, up to the point of undue hardship. Employees who face discrimination can file a claim with their provincial human rights tribunal or commission, or the Canadian Human Rights Commission for federally regulated workplaces, generally within one year.

This article is part of the guide to employment law in Canada.

The short version

• Discrimination and harassment based on a protected ground are illegal at every stage of employment.
• Employers have a duty to accommodate up to the point of undue hardship.
• Claims usually go to a provincial tribunal or commission, generally within one year.
• Remedies can include lost wages, compensation for injury to dignity and, sometimes, reinstatement.
• Discrimination claims can also be included in a wrongful dismissal lawsuit.
• A severance release usually waives human rights claims, so get advice before signing.

Protected Grounds

The exact list varies slightly by jurisdiction, but commonly includes:

The Duty to Accommodate

Employers must accommodate employees' needs related to protected grounds, most often disability, religion and family status, unless doing so would cause undue hardship. Accommodation can include:

• modified duties or hours
• a gradual return to work
• assistive equipment or changes to the workplace
• schedule changes for religious observance or caregiving needs
• leave

Accommodation is a two-way process. Employees should tell the employer about their needs and provide reasonable medical or other information. Employers must take the request seriously, explore options and act in good faith. Undue hardship is a high standard, usually focused on cost, outside funding and health and safety.

Where to File

Late applications may be accepted only in limited circumstances, for example where there was a good-faith reason for the delay. In BC, the Tribunal can accept a late complaint if it is in the public interest and no substantial prejudice results. In Ontario, free help is available from the Human Rights Legal Support Centre.

How the Process Usually Works

1. Application or complaint. The person describes what happened, the protected ground and the remedy sought.
2. Response. The employer files a response.
3. Mediation. Most tribunals offer early mediation, and many cases settle at this stage.
4. Hearing. If not settled, the tribunal holds a hearing and decides the case.

Tribunal processes are designed to be usable without a lawyer, but legal advice helps with strategy, evidence and settlement value.

Remedies

Human rights tribunals can order:

• compensation for lost wages and benefits
• compensation for injury to dignity, feelings and self-respect
• reinstatement in some cases
• changes to workplace policies, training or other public interest remedies

Human Rights Claims in Wrongful Dismissal Lawsuits

In Ontario and some other provinces, a human rights claim can be included in a civil wrongful dismissal lawsuit, as long as it is connected to another claim, such as wrongful dismissal. This lets an employee pursue both in one case. Generally, the same issue cannot be pursued in both a tribunal and a court at once, so the choice of forum matters. See wrongful dismissal in Canada.

Severance Releases and Human Rights

Most severance agreements include a release of human rights claims. If a termination may be linked to a protected ground, such as a disability or pregnancy, get advice before signing. Tribunals may look at whether a release was signed fairly, but a release is still a serious obstacle. See should I sign a severance agreement?

Harassment

Harassment connected to a protected ground, such as sexual harassment or racial harassment, is a human rights violation in addition to a health and safety issue. See workplace harassment in Canada.

Practical Steps

1. Write down what happened, with dates, names and witnesses.
2. Keep documents, such as emails, medical notes, accommodation requests and performance reviews.
3. Make accommodation requests in writing.
4. Use internal processes where it is safe to do so, but do not let deadlines pass while waiting.
5. Get advice early on the best forum and the one-year deadline.

Frequently Asked Questions

Can I be fired while on disability leave?

An employer cannot fire someone because of their disability or because they took disability-related leave. A termination for a genuine, unrelated reason may be lawful, but it is closely examined. Frustration of contract can apply in rare cases where there is no reasonable likelihood of return in the foreseeable future, even with accommodation.

Does my employer have to accommodate child care needs?

Family status protection can require accommodation of genuine child care or elder care obligations that the employee cannot reasonably meet otherwise. Tests differ somewhat between jurisdictions.

Is it discrimination if I'm treated badly but not because of a protected ground?

Not under human rights law. Unfair treatment unrelated to a protected ground may still be workplace harassment or support a constructive dismissal claim. See constructive dismissal in Canada.

Do I need a lawyer for a human rights claim?

No, but legal advice helps. In Ontario, the Human Rights Legal Support Centre offers free help. Many employment lawyers also handle human rights claims. See how much an employment lawyer costs.

Facing discrimination at work? Search LawyerDirectoryCanada.ca for employment lawyers by province and city.

Sources

• Learn more about making a human rights claim, Steps to Justice
• Complaint time limit, BC Human Rights Tribunal
• Workplace harassment: information for workers, Government of Ontario
• Your guide to the Employment Standards Act: termination of employment, Government of Ontario