When most people hear the phrase “human rights,” they immediately think of the Canadian Charter of Rights and Freedoms. Although the Charter does outline human rights protections that apply across Canada, the Charter only applies to governments and other public actors.
Nevertheless, private companies are still bound by human rights obligations. All provinces and territories in Canada have laws on the books which prohibit employers from discriminating against their employees (or prospective employees) on the basis of any “protected” ground. In Alberta, that law is found in the Alberta Human Rights Act.
What Is A “Protected” Ground?
Section 7 of the Alberta Human Rights Act lists the following protected grounds:
- religious beliefs;
- gender, gender identity, and gender expression;
- physical disability;
- mental disability;
- ancestry or place of origin;
- marital status;
- source of income;
- family status; and
- sexual orientation.
Workplace conduct, policies, or decisions which treat employees differently based on any of the grounds listed above — such as not hiring a candidate for a job, firing an employee, or any other differential treatment — may constitute discrimination contrary to the Alberta Human Rights Act.
Are There Any Exceptions?
As with most legal tests, there are a few important exceptions.
The first rule is that companies can treat employees differently based on a protected ground if it is necessary for a “bona fide occupational requirement”. This essentially means that otherwise discriminatory practices may be legally justified based on the nature of the employment. To provide a very simple example, a liquor store’s decision not to hire a 16 year-old for a clerk position is not discriminatory based on age because it is a legal requirement to be 18 years old to sell alcohol. This exception can be applied in many circumstances where certain attributes are required to perform necessary employment duties.
The second exception covers any policies or programs which are intended to help disadvantaged persons (a.k.a. “affirmative action”). For example, a job listing granting priority to applicants from historically under-represented groups will not be considered discriminatory.
The last exception – and most commonly relied upon – is that conduct will not be considered discriminatory if the employer can demonstrate their actions were reasonable and justifiable in the circumstances. In practice, this refers to the employer’s duty to accommodate employees to the point of undue hardship. We discuss this in greater detail below.
The Duty To Accommodate
The employer’s duty to accommodate to the point of undue hardship is a well-known rule in human rights law. But what does it actually mean?
The duty to accommodate on the basis of a protected ground can take many different forms. Common examples of accommodation include granting time off due to illness, modifying work duties or responsibilities for employees with disabilities, or making necessary arrangements for employees to observe religious practices while at work.
To put it simply, employers have a duty to grant reasonable accommodations to their employees on the basis of any protected ground.
However, the phrase “undue hardship” is important. Although employers have a duty to grant reasonable accommodations, this duty is not unlimited. If the employer can prove the requested accommodation would impose significant disruption or expense for their business, this will be considered undue hardship and the employer will not be required to oblige.
I Believe I Have Been Discriminated Against – What Happens Now?
If you believe you have been discriminated against on the basis of a protected ground, the first step is to attempt a reasonable compromise with your employer. This may involve an agreement to prevent the offending conduct from reoccurring in the future or to obtain reasonable accommodation.
If the issue cannot be resolved amicably, the next step is to file a complaint with the Alberta Human Rights Commission (AHRC). The AHRC has exclusive jurisdiction for human rights matters involving provincially regulated employees. This means that discrimination claims must go to the AHRC, rather than Alberta Provincial Court or the Court of Queen’s Bench. (If you work in a unionized position or in a federally regulated industry, this will impact where you can file a complaint.)
The AHRC will then investigate the claim to decide if discrimination has occurred. Successful complainants can be awarded general damages and additional compensation depending on the circumstances of the case.
If you need assistance navigating human rights issues in the workplace, let us help. We can provide case-specific advice about protected grounds, occupational requirements, the duty to accommodate, and how to file a complaint. We have a firm understanding of the law in this area and we can assist in ensuring you are treated fairly in the workplace. Contact us to schedule a consultation today.