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With ongoing protests and the related public discourse regarding racism and discrimination, many employers are examining their policies and procedures, and determining what actions they can take to combat racism and discrimination at work.

Accordingly, the following blog reviews how employees are protected against racism/discrimination at work, employer obligations, as well as practical actions that can be taken to both prevent and manage racism and discrimination at work.

What laws protect employees from discrimination/racism at work?

In Ontario, the Human Rights Code (the “Code”) protects employees from discrimination and harassment in the workplace. 

Employees who fall under federal jurisdiction (i.e. employees of telecommunication companies, banks, and airlines) are protected against discrimination in employment pursuant to the Canadian Human Rights Act (“CHRA“) and the Employment Equity Act (“EAA”).

Both the Code and the CHRA identify “race”, “place of origin” and “ethnic origin” as prohibited grounds for discrimination in employment.

What are an employer’s obligations?

Employers have an obligation to ensure that their workplaces are free from discrimination and harassment.  They are further expected to take all reasonable steps to ensure that the workplace is respectful and that employees are afforded equal opportunities.

Where human rights issues do arise, employers must respond to allegations of human rights violations in a timely and effective manner.

Employers violate the Code when they:

  • directly or indirectly, intentionally or unintentionally infringe the Code/CHRA
  • constructively discriminate based on the Code/CHRA
  • do not directly infringe the Code/CHRA but rather authorize, condone, adopt or ratify behaviour that is contrary to the Code/CHRA

To satisfy their obligations, employers must be diligent and proactive with respect to identifying possible or actual instances of discriminatory behaviours that may occur at work. This includes more subtle forms of discrimination or “microaggressions”, all of which must be identified and addressed in a timely and appropriate manner.

How do I identify and respond to microaggressions at work?

A “microaggression” is a comment or action that subtly and often unconsciously, or unintentionally, expresses a prejudiced attitude toward a member of a marginalized group such as a racial minority. While not all microaggressions would be considered as a violation of human rights legislation, many are unfortunately indicative of discrimination/harassment based on human rights.   

The following are some examples which, depending on the circumstances, may be considered microaggression-type comments:

  • “Where are you from?”,
  • “Is that your natural hair?”, or
  • “Your English is very good”.

Where subtle workplace behaviours or microaggressions may contravene the Code/CHRA, the employer’s duty to address the potentially discriminatory conduct is triggered.

What actions might employers consider taking to prevent racism/discrimination at work?

Employers would be wise to consider taking at least the following actions to try to prevent human rights violations at work:

  • Making a meaningful commitment: Leaders within an organization should consider publicly committing to advancing human rights at work to assist with promoting a positive working environment that respects human rights.
  • Reviewing operations: Employers should consider having their current policies and practices reviewed from a human rights perspective to ensure that they consider the needs of their employees and do not inadvertently encourage/condone violations of the Code/CHRA.
  • Provide human rights training: Employers should consider making human rights/diversity/inclusion training available to its leaders/managers/employees to encourage and promote an understanding of human rights-related responsibilities and best practices.
  • Appointing leaders: Employers should consider creating a diversity team or an appointed diversity officer to handle matters relating to discrimination.

If you have questions about how you can take steps to address, manage or prevent racism/discrimination at work, or if you have been subjected to a violation of your right to work in a workplace free from discrimination and harassment,  please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or here.

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