Your Guide to Understanding the Canadian Human Rights Act - Page1

Discrimination: what can you do about it?

Has discrimination affected you? What can you do about it? This guide explains what discrimination is, how the law prohibits it, and what to do if someone discriminates against you. The guide deals with the federal Canadian Human Rights Act (the Act)—not with provincial or territorial laws.

At the end of this guide is a glossary that explains certain words. Those words are in bold in the guide.

What is discrimination?

Discrimination is an action or a decision that results in the unfair or negative treatment of person or group because of their race, age, religion, sex, etc. Some types of discrimination are illegal under federal and provincial human rights laws. If you are the victim of discrimination under the Act, you can file a complaint with the Canadian Human Rights Commission (the Commission).

Is your case federal or provincial?

Canada’s Constitution splits legal responsibility, or jurisdiction, between the federal and the provincial or territorial governments. The federal government regulates some employers and service providers, such as banks and airlines. They are described in the glossary under the entry for “federally regulated.”

Provinces and territories regulate other businesses and service providers and have their own human rights laws. If your case involves provincial or territorial law, the guide lists the provincial and territorial agencies to contact.

Indians and lands reserved for Indians are federally regulated. But not every organization run by First Nations people or located on a reserve is federally regulated. For example, a band office is federally regulated, but a gas station or a corner store on a reserve is regulated by the provincial or territorial government. A complaint against the gas station or corner store would be handled by the provincial or territorial human rights commission under its own human rights laws.

To find out if your case is federal or provincial, talk to a human rights officer at the Commission. They will direct you to the right place.

What does the Act say about discrimination?

Grounds of discrimination

Section 3 of the Act makes it illegal for federally regulated employers and service providers to discriminate against people, or treat them unfairly, based on the following grounds:

  • race
  • national or ethnic origin
  • colour
  • religion
  • age
  • sex
  • sexual orientation
  • marital status
  • family status
  • disability
  • a conviction for which you have been granted a pardon.

To see the Act, go to http://laws.justice.gc.ca/eng/H-6/index.html.

Examples of discrimination under the Act
  • You apply for Band membership, but the band refuses because you are a woman (sex).
  • You apply for a loan, but the bank refuses because you are Aboriginal (race, national or ethnic origin, colour).
  • A Band Council refuses to hire you because you are from another First Nation (national or ethnic origin).
  • You are fired from your job because you become pregnant (sex).
  • You are fired because your boss doesn’t like someone in your family (family status).
  • You are fired because you failed a random drug test at work (disability).

But if you just don’t get along with your boss, that does not mean there is discrimination. If you think there may be discrimination, talk to a human rights officer from the Commission to learn more.

Discriminatory practices

The Act forbids the following discriminatory practices —if they are based on one of the grounds of discrimination:

  • Denying someone goods, services, facilities, or accommodation (Section 5).
  • Refusing to employ or continue to employ someone or treating them unfairly in the workplace (Section 7).
  • Following policies or practices that deprive people of employment opportunities (Section 10).
  • Paying men and women differently when they are doing work of the same value (Section 11).
  • Communicating hate messages on the telephone or through the Internet (Section 13)*.
  • Harassing someone (Section 14).
  • Retaliating against a person who has filed a complaint with the Commission or  someone who has filed a complaint for them (Section 14.1).

* As of June 26, 2014, Section 13 of the Canadian Human Rights Act will no longer be in force.  

Harassment: a common discriminatory practice

Harassment occurs when someone:

  • offends or humiliates you physically or verbally.
  • threatens or intimidates you.
  • makes unwelcome remarks or jokes about your race, religion, sex, age, disability, etc.
  • makes unnecessary physical contact with you, such as touching,
    patting, pinching or punching—this can also be assault.

Employers are responsible for any harassment in the workplace and they must take appropriate action against any employee who harasses someone else. Workplaces should have an anti-harassment policy, which employees can ask to see.

What can you do if you are harassed?

Report it to your employer—don’t ignore it. If you fear for your safety, or the safety of others, contact the police. Tell the person harassing you that their actions are unacceptable.

If you are harassed at work, tell the contact person listed in your employer’s anti-harassment policy. If they don’t help you, find out if there is a company grievance procedure to help you or contact your union representative. Document your case—keep a written record of the incidents, including times, places and witnesses.

If a service provider harasses you, complain to the management of the service provider.

Duty to accommodate in employment and service delivery

Sometimes, employers must take necessary steps to make it possible for people to work. This is called the duty to accommodate. For example, employers have to give pregnant women maternity leave. They also have to let people observe their religious holidays. Employers have a duty to accommodate only when an employee needs a change or modification, based on one of the grounds of discrimination.

Businesses or organizations that are federally regulated are required by law to accommodate when they provide services to the public, for example, by making wheelchair access available to people with disabilities.

If you have special circumstances that may require your employer to accommodate your needs under Subsection 15(2) of the Act, you should:

  • Tell your employer how your special circumstances may affect your work.
  • Give enough information about your special circumstances to your employer to justify the change.
  • Discuss with your employer ways to make it easier for you to do your job.
Andrea’s story

Andrea is a member of the Spruce Tree First Nation and has worked for the Band council as a bookkeeper and administrator for seven years. The Band council told Andrea that they would fire her because of her poor attendance, moodiness, and angry behaviour when she drinks. Andrea believed the Band council was discriminating against her on the ground of disability. She suffers from depression every September, which is the anniversary month of her daughter’s death five years ago, and she drinks when she gets depressed.

Andrea’s doctor agreed that the depression and drinking were disabling conditions. He referred Andrea to a therapist for ongoing counselling and help in finding an alcohol treatment program. The doctor also prescribed anti-depressants.

The counsellor told Andrea that her only option was a 28-day treatment program away from the reserve. Andrea worried that the Band council would not agree to her missing work for such a long time, so she made a plan with the following:

  • a request for a leave of absence due to medical disability.
  • a letter from the doctor explaining that Andrea suffers from a medical condition that leaves her temporarily unable to work but that medication and the treatment plan should improve her condition dramatically.
  • a note from the therapist confirming that Andrea is undergoing ongoing counselling to deal with her workplace problems and angry behaviour.
  • a work plan from Andrea showing how she could draw together the periodic financial reports when she returns, as long as another employee tracks the invoices, expenses and other relevant information.

The Band council accepted Andrea’s plan and are looking forward to her return to the job, back to her normal self.

Your employer does not have to accommodate your special circumstances if it would create undue hardship for the employer. For example, a person who cannot get a driver’s license because their vision is impaired cannot be a bus driver.

What is undue hardship?

Under Subsection 15(2) of the Act, an employer or service provider can claim undue hardship when the duty to accommodate would cost too much or create risks to health or safety. For example, if you have a drug addiction and work in a dangerous job, your employer may be able to show that accommodating your disability by keeping you in your job would put you, your co-workers, or the public at risk.

When does the Act allow special treatment?

Sometimes, treating everyone the same does not automatically result in equality.  When this happens, the Act allows special treatment to ensure that people are treated fairly.  For example, requiring all applicants for a job to pass a written test may not be fair to an individual with a visual disability. Or having a blanket policy on days of work may not be fair to an employee who practices a certain religion. In such cases, the duty to accommodate may require that adjustments be made to ensure full participation of the person. In other words, it may be necessary to treat someone differently in order to be fair. 

There are other times when the Act may allow special treatment.  An employer may have a good reason to choose to hire Aboriginal applicants, for example, because they need to know the culture to do the job. Or a First Nations employer may hire a qualified Aboriginal person rather than someone else because it is important for them to have Aboriginal employees.  

Aboriginal people should expect to be treated equally with other people.  But equality does not always mean treating everyone the same.

Mike’s story

The Smith family belongs to the Pine Tree First Nation. Mike, the 14-year-old son, has a progressively disabling condition that affects his mobility. He can move around only on crutches, and his condition is expected to get worse as he gets older. Getting around school is becoming increasingly hard as his condition worsens. Mike’s father carries him into and out of school every day. As there is no washroom on the main floor, Mike must drag himself up a flight of stairs and then down again when he needs the washroom. When he gets there, he must yell for the janitor to help him open the door. The doorknob is the grip-and-turn type, which Mike cannot operate.

Mike must also visit the Pine Tree First Nation’s health unit and its recreation centre. The health unit is all on one level but has steps at the entrance. The recreation centre, where Mike goes for important exercise and physiotherapy, has three steps at its entrance and the same doorknob problems in the gym, change rooms, and washroom.

Mike’s parents, Gerry and Marian, worry about what would happen if they were no longer around to care for him and his condition worsens, especially while he’s at school. The specialists say that Mike will soon need a wheelchair, but the school isn’t accessible even for a small wheelchair. Mike’s only option may be to move to supportive housing in the city, but that would mean losing contact with his family, language and community. Mike’s family doesn’t want to consider this option.

Gerry and Marian have spoken to the Chief and the Band Council about the need to make the school and the other reserve facilities wheelchair-accessible, but money is a problem. The family is well known and everyone wants to help Mike because he is very good-natured, but there’s not enough money to pay for the ramps, elevators, washroom
renovations, and other costs to make reserve facilities accessible.

Finally, the family decides to file a complaint with the Commission, against the federal government and the Band. The Band says that they would go bankrupt if they had to do everything in the current budget, as there is not even enough money for essential housing, let alone new projects. They feel mediation would not help because the money simply isn’t there. The Smiths are very upset and feel betrayed, so they go ahead with the complaint.

This story continues in a later section.

Where can you get help?

Community-based and other internal dispute resolution processes

Often, a situation can be solved quickly and easily within an organization or community. You can try to solve a dispute by:

  • using a customary process, such as asking elders for guidance or using a healing circle; or
  • filing a grievance, if you have a union at your workplace.

If you file a complaint with the Commission, it will always look first to see how you have tried to solve the problem within your organization or community. If it is possible to deal with a complaint there, the Commission will, in most cases, tell you to do that before it will proceed with your complaint.

But if this does not work, you have only 12 months from when the discrimination happened to file a complaint with the Commission. In some cases, such as illness, the Commission may extend the deadline.

The Commission and the Tribunal

The Act created both the Canadian Human Rights Commission  (Commission) and the Canadian Human Rights Tribunal (Tribunal). Both organizations
operate independently of each other and of the government.00
The Commission:

  • deals with complaints of discrimination by federally regulated employers or service providers and sends them to the Tribunal for a hearing if more inquiry is needed.
  • ensures that employers promote workplace equality for the four groups named in the Employment Equity Act: women, Aboriginal people, people with disabilities, and members of visible minorities.
  • promotes an understanding of human rights and informs federally regulated organizations about respecting human rights in their organizations.

The Tribunal:

  • holds hearings and decides on cases that the Commission sends to it.
  • makes orders to solve discrimination. In these roles, the Tribunal is like a court.

For more on the Tribunal, see “What Happens Next? A Guide to the Tribunal Process” at www.chrt-tcdp.gc.ca. Click on “Tribunal Rules and Procedures” and then on “What Happens Next? A Guide to the Tribunal Process.”

Mike’s story continued

A human rights officer from the Commission approached the Smiths and the Band to see if they could resolve their differences using the community-based dispute resolution process. The Pine Tree First Nations Dispute Resolution Circle has different tiers or levels, depending on the kind of dispute and what the parties hope to achieve. The Smiths and the Band decided to try the community model and to use a traditional process with an Elder as an independent third party. The federal government appointed an official to participate in the mediation. Within a week, they met with a committee and the Elder acted as a guide in the process. The committee consisted of a member living off the reserve, two members
living on the reserve, a youth representative, and the Elder. The process was the same one the community always used to reach consensus.

The Elder gave the Smiths a chance to tell their story and then the Band got an opportunity to respond. The Band was surprised that the Smiths were not asking for everything to happen overnight. They agreed  to treat the school as a priority and then look at other facilities that could be adapted. The community gave its input and there was a discussion about the costs and the benefits to the community.

The plan was for the Band and the Smiths to inspect the school and make a list of what needed to be done immediately and what retrofitting could be done as part of regular maintenance in future years. Then they did the same thing with the health unit and the recreation centre.

The Smiths felt that the Band’s response to their son’s needs was fair and decided to withdraw their complaint. They had to file a short letter notifying the Commission that they had come to an agreement with the Band and wished to withdraw their complaint. The Commission agreed and closed the file.

Making a complaint to the Commission

If you believe you have been a victim of discrimination, you can contact
the Commission in writing or by telephone. Staff will give you basic
information about the Commission’s services and tell you if it can
deal with your complaint.

Only people who are in Canada legally—or someone acting for them—can file a complaint. You must file a complaint within 12 months of the event or situation that you are complaining about. Your complaint must describe the action or decision that you think is a discriminatory practice, the grounds of discrimination, and how the discriminatory practice affected you.

Not all unfair situations are valid human rights complaints. A complaint
requires grounds of discrimination, a discriminatory practice, and a
negative effect on you.

Complaint = grounds of discrimination + discriminatory practice + negative effect on you

You can file a complaint on behalf of others as long as you have their consent. A human rights officer will encourage you to try to solve the problem by using an internal dispute resolution in your workplace or community.

Filing a complaint

A human rights officer will send you a kit with instructions on how to prepare the complaint form. If you need help completing the form, you can ask the human rights officer, a family member or friend to help you. You don’t need a lawyer to file a complaint. If there is anything you do not understand, you can ask the human rights officer for help.

If the Commission accepts your complaint, the person or organization that you are complaining about (respondent) will receive a copy, so they will know about it. The Commission is impartial—it doesn’t take your side or the respondent’s.

In some cases, there may be a reason why the Commission cannot proceed further with your complaint. The human rights officer may write an initial report asking the Commission to make a decision to deal or not to deal with your complaint. The Commission will need to make this decision where: 

  • there are other grievance or review procedures reasonably available.
  • there are other more suitable procedures.
  • the complaint is not based on a ground, or is not federally regulated.
  • the 12-month period has expired.

You can send in your comments before the Commission makes this decision, and Commission members will read them along with the report, and any comments sent in by the respondent.

Retaliation

When you file a complaint, the Act says that no one can retaliate or take action against you because of the complaint. If someone does that, you can file a new complaint. Contact the human rights officer immediately to find out what you can do. If the person’s action is criminal, call the police as well. Document your case—keep a written record of the action, including times, places and witnesses, and explain why you think the incident is retaliation.