Calgary Employment Lawyers Advising on Human Rights in the Workplace

Human rights laws protect employees and job applicants from discrimination in Alberta workplaces and require employers to take reasonable steps to prevent and address discriminatory treatment.

What Human Rights Laws Apply in Alberta Workplaces?

Human rights protections exist at both the federal and provincial levels in Canada.

For provincially regulated workplaces in Alberta, workplace discrimination is governed by the Alberta Human Rights Act. Federally regulated employers are governed by the Canadian Human Rights Actrather than Alberta’s provincial human rights legislation. This page addresses workplace human rights under the Alberta Human Rights Act.

The Act protects employees and job applicants from discrimination in important areas of employment, including:

• Job advertisements and recruitment;
• Hiring and interviews;
• Terms and conditions of employment;
• Compensation;
• Workplace policies and practices;
• Performance management;
• Promotions;
• Discipline;
• Workplace accommodation; and
• Termination of employment.

Human rights obligations can arise at every stage of the employment relationship, beginning with recruitment and continuing through the end of employment.

What Is Workplace Discrimination?

Not every unfair or unpleasant workplace experience is discrimination under human rights law.

Generally, a human rights concern arises where an employee or job applicant experiences negative or adverse treatment that is connected to a protected ground under applicable human rights legislation. The protected characteristic does not necessarily need to be the only reason for the treatment.

For example, human rights issues may arise where an employer:

• Refuses to hire someone because of a protected characteristic;
• Treats an employee differently because of a disability;
• Refuses to reasonably accommodate an employee;
• Applies a workplace rule that negatively affects employees with a protected characteristic;
• Harasses an employee because of a protected ground; or
• Terminates employment for reasons connected, at least in part, to a protected characteristic.

Whether discrimination has occurred depends on the particular facts.

What Are the Protected Grounds Under the Alberta Human Rights Act?

Section 7 of the Alberta Human Rights Act protects employees from discrimination based on:

• Race;
• Religious beliefs;
• Colour;
• Gender;
• Gender identity;
• Gender expression;
• Physical disability;
• Mental disability;
• Age;
• Ancestry;
• Place of origin;
• Marital status;
• Source of income;
• Family status; and
• Sexual orientation.

These protections apply to both employees and prospective employees.

Human rights protections can also apply to workplace rules that appear neutral but have a disproportionate negative effect on people with a protected characteristic.

What Rights Do Employees Have in the Workplace?

Employees have the right to participate in the workplace without discrimination based on a protected ground.

This includes the right to:

• Be considered fairly during recruitment and hiring;
• Work under non-discriminatory terms and conditions;
• Be evaluated based on legitimate job-related criteria;
• Request accommodation for needs connected to a protected ground;
• Have accommodation requests considered individually;
• Be free from discriminatory harassment;
• Raise human rights concerns; and
• Be free from retaliation for participating in a human rights complaint under the Alberta Human Rights Act.

Human rights law does not require every employee to be treated identically.

In some circumstances, treating employees differently may actually be necessary to provide substantive equality. Workplace accommodation is a common example.

What Obligations Do Alberta Employers Have?

Employers must ensure that their workplace practices, policies and decisions comply with the Alberta Human Rights Act.

Employers should:

• Make employment decisions based on legitimate job-related considerations;
• Avoid discriminatory job advertisements and interview practices;
• Maintain appropriate workplace policies;
• Respond to discrimination and harassment concerns;
• Consider accommodation requests in good faith;
• Assess employees individually rather than relying on assumptions or stereotypes;
• Protect confidential medical and personal information appropriately; and
• Document important human rights and accommodation decisions.

Human rights compliance is not limited to responding to formal complaints.

Employers should take a proactive approach to preventing discrimination and addressing potential issues before they escalate.

When Can Different Treatment Be Legally Justified?

Not every distinction connected to a protected ground will violate the Alberta Human Rights Act.

In some circumstances, an employer may establish that a workplace standard, rule or requirement is reasonable and justifiable.

In the employment context, this is often referred to as a bona fide occupational requirement, or BFOR.

Generally, the employer must be able to establish that the requirement:

• Is rationally connected to the work being performed;
• Was adopted honestly and in good faith for a legitimate work-related purpose; and
• Is reasonably necessary, meaning the employee cannot be accommodated without causing the employer undue hardship.

The assessment is highly fact-specific.

An employer should not assume that a job requirement is a BFOR simply because it has always been part of the position or appears in a job description.

What Is the Duty to Accommodate?

One of the most important workplace obligations under human rights law is the duty to accommodate. Employers must take reasonable steps to accommodate an employee’s needs when those needs are connected to a protected ground, up to the point of undue hardship.

See our page on Accommodation for more information about the duty to accommodate.

When Does an Employer Have a Duty to Inquire?

Employees will often expressly tell their employer that they require accommodation. But not always. In some situations, an employer may know—or reasonably should know—that disability or another protected ground may be contributing to a workplace problem.

Depending on the facts, the employer may have a duty to inquire before disciplining or terminating the employee.

That does not mean employers should diagnose employees or make assumptions about their health.

It means that, where circumstances reasonably raise a human rights concern, the employer may need to ask appropriate questions before making an employment decision.

See our page on the Duty to Inquire for more information.

Can Employers Request Medical Information?

Where an employee requests disability-related accommodation, an employer is generally entitled to enough reliable information to understand:

• Whether there is a medical limitation or restriction affecting work;
• What functional limitations need to be accommodated;
• The expected duration of those limitations;
• Whether the employee can perform particular duties; and
• What accommodation may be appropriate.

However, employers are not automatically entitled to an employee’s complete medical history or diagnosis. The scope of appropriate medical information depends on the circumstances.

See our page on Requesting Medical Information from Employees for more information.

Human Rights and Workplace Harassment

Harassment can amount to discrimination where it is connected to a protected ground.

Examples may include:

• Racial comments or slurs;
• Sexual harassment;
• Disability-related ridicule;
• Homophobic or transphobic comments;
• Religious harassment; or
• Repeated comments based on another protected characteristic.

Employers should take human rights complaints seriously and respond appropriately.

Depending on the circumstances, that may require:

• Receiving and documenting the complaint;
• Taking immediate steps to protect employees;
• Conducting a fair workplace investigation;
• Taking corrective or disciplinary action where appropriate; and
• Preventing retaliation.

Not every incident of workplace bullying or interpersonal conflict falls within human rights legislation. The conduct must generally have the required connection to a protected ground for the Alberta Human Rights Act to apply.

Other workplace legislation or employer policies may still apply even where human rights legislation does not.

Human Rights and Termination of Employment

Human rights obligations continue when an employer is considering termination.

An employer may generally terminate an employee for legitimate, non-discriminatory reasons, subject to applicable employment law requirements. However, a termination may violate human rights legislation if a protected characteristic was a factor in the decision.

Examples may include terminating an employee because:

• They are pregnant;
• They have a disability;
• They requested accommodation; or
• Their disability-related limitations were incorrectly treated as misconduct or poor performance.

A protected ground does not have to be the only reason for termination for discrimination to occur.

Employers should therefore carefully assess potential human rights issues before terminating an employee where disability, accommodation, medical leave or another protected ground may be involved. In most cases, an employer should seek legal advice prior to proceeding with termination where potential human rights issues are involved.

What Should Employees Do if They Experience Workplace Discrimination?

Employees who believe they have experienced discrimination should consider taking steps promptly.

Depending on the situation, an employee may:

• Document what happened. Keep relevant emails, messages, policies and other records.
• Record important dates. Note when the conduct occurred and who was involved.
• Identify witnesses. Keep track of anyone who observed relevant events.
• Review workplace policies. Determine whether there is an internal complaint, accommodation or harassment process.
• Raise the concern internally where appropriate. This may involve a supervisor, human resources or another designated contact.
• Request accommodation if needed. Clearly identify the workplace need connected to the protected ground.
• Obtain legal advice. An employment lawyer can help assess whether the conduct may constitute discrimination and what options are available.
• Consider a human rights complaint. Employees covered by the Alberta Human Rights Act may be able to make a complaint to the Alberta Human Rights Commission.

An employee does not have to resolve the matter internally before being entitled to make a human rights complaint.

How Long Do Employees Have to File a Human Rights Complaint under the Alberta Human Rights Act?

Timing is important.

A complaint to the Alberta Human Rights Commission must be made within one year of the discriminatory act or treatment. This one-year limitation period cannot be extended.

Employees who believe they may have a human rights claim should therefore avoid delaying while attempting to resolve the issue informally.

Different processes may apply to:

• Federally regulated employees;
• Unionized employees; and
• Employees whose circumstances involve additional employment, contractual or legal claims.

Obtaining legal advice early can help identify the appropriate process and applicable deadlines.

What Alberta Employers Should Do to Reduce Human Rights Risk

Human rights issues are easier to manage when employers address them before a dispute develops.

Employers should:

• Review workplace policies. Ensure policies reflect current human rights obligations.
• Train managers. Supervisors should know how to recognize accommodation and discrimination issues.
• Use objective employment criteria. Hiring, promotion, discipline and termination decisions should be based on legitimate factors.
• Respond promptly to accommodation requests.
• Know when to inquire. Do not automatically discipline an employee when circumstances suggest disability may be involved.
• Request only appropriate medical information.
• Document the accommodation process.
• Investigate discrimination and harassment complaints appropriately.
• Protect confidentiality.
• Get legal advice before difficult decisions. This is particularly important before denying accommodation or terminating an employee where a protected ground may be involved.

Getz Collins and Associates: Advising Alberta Employers and Employees on Workplace Human Rights

Workplace human rights issues can arise in hiring, performance management, medical leaves, accommodation, workplace investigations and termination decisions.

The employment lawyers at Getz Collins and Associates advise both Alberta employers and employees on their rights and obligations under workplace human rights legislation.

We can assist with:

• Workplace discrimination concerns;
• Disability and other workplace accommodation;
• The duty to inquire;
• Medical information requests;
• Human rights complaints and responses;
• Workplace harassment;
• Performance and attendance issues involving protected grounds;
• Human rights issues arising during termination; and
• Human rights policies and workplace procedures.

Understanding the legal obligations early can often help employers and employees resolve workplace concerns before they become more serious.

From our Calgary office, Getz Collins and Associates advises clients throughout Alberta, including Calgary, Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, Hussar and surrounding communities.

Call 587-391-5600 or contact us online to schedule a confidential consultation with an employment lawyer.