Discrimination is the prejudicial treatment of an individual or group based on their personal characteristics, such as gender, age, religion, race, ancestry, disability, or sexual orientation. Discrimination can be intentional or non-intentional. The effect of discrimination is to impose burdens or disadvantages on individuals or to limit their access to benefits or opportunities, without consideration of their actual abilities.
Types of Discrimination
The three types of discrimination are direct discrimination, adverse effect discrimination, and systemic discrimination. Direct discrimination occurs when a policy or rule expressly applies to a particular personal characteristic. For example, a landlord refuses to rent an apartment to a member of a particular ethnic group, based on perceptions about his or her culture. The landlord is intentionally discriminating against a particular group based on his own prejudice and fear.
Direct discrimination may not be intended to harm an individual or group. For example, an employer hires women, but prohibits them from performing manual labour or working night shifts based on concerns about their safety. As a result, the women are denied an opportunity to earn the same pay as their male counterparts. The employer may not be hostile against women, but still treats them in a discriminatory manner.
Adverse effect discrimination occurs when a rule that appears to be neutral has a negative impact on a particular group. For example, an employer imposes a rule requiring all employees to meet a certain fitness level. Most women have difficulty meeting the fitness level. As a result, the rule discriminates against women. The employer would be required to demonstrate that the rule is reasonably necessary for the job.
Systemic discrimination is a pattern of behaviour, policy or practice that is part of an organization’s structure, which creates or perpetuates disadvantages for certain groups. Systemic discrimination is subtle and pervasive, and it occurs when an apparently neutral policy or practice has an adverse impact on a group of people. For example, women and members of visible minority groups with the same education and experience consistently earn less than white males in similar positions. The perception that there only certain types of work are “acceptable” for women may be a deep-rooted part of an organization’s structure and beliefs.
Areas of Protection against Discrimination
The Alberta Human Rights Act (HRA) applies to companies, employers, and government agencies in Alberta. The federal legislation, the Canadian Human Rights Act, applies to federally regulated companies and employers. The HRA protects individuals and groups against discrimination in the areas of tenancy, public services, and employment. The HRA also protects against retaliation for filing a human rights complaint, and forbids discriminatory signs and notices. The area of tenancy includes the rental of any apartment building or housing that is advertised as available for rent to a tenant. The area of public services includes access to hotel accommodation, restaurants, retail services, hospitals, and schools. The area of employment includes equal pay, hiring practices, employment policies, and termination. It also includes membership in a trade union or association.
Grounds of Protection against DiscriminationIn the area of employment, an employer may impose practices that are discriminatory if they are reasonably necessary to fulfill a work-related objective. The practice may be referred to as a “bona fide occupational requirement” or BFOR (see Women and Work section for more information).
The HRA prohibits differential treatment that is based on race, religious beliefs, colour, gender, physical and mental disability, marital status, age, ancestry, place of origin, source of income or family status and sexual orientation. These grounds are described in more detail below.
Age is a protected ground in two areas: the publication of discriminatory signs and notices, and in employment. Age is not a prohibited ground in the areas of tenancy and services. In other words, a landlord or store owner can discriminate against a potential tenant or customer because of age. Age is defined in the HRA as eighteen years or older. People under the age of eighteen are not protected from discrimination based on their age. Mandatory retirement at the age of sixty-five is prohibited, subject to the employer establishing a BFOR(for example, based on safety concerns and the physical limitations of an employee).
Individuals with mental disabilities are protected in all areas under
the HRA, including tenancy, public services, and employment. Mental disability includes any mental disorder, developmental disorder, or learning disorder, regardless of the cause or durationof the disorder. Mental disability includes alcohol and drug addiction. Employers have a duty to reasonably accommodate employees with mental disabilities, which includes making efforts to adapt the job duties and working environment, based on the individual’s particular circumstances or needs. Employers are not required to accommodate a mental disability that would create a potential health or safety risk.
Individuals with physical disabilities are protected in all areas under the HRA, including tenancy, public services, and employment. Accessibility is a major issue for those with physical challenges. Accessibility is more than simple physical access to a workplace or building. Employers are expected to accommodate physical disabilities, to the point of undue hardship. This may include purchasing adaptive computer equipment and installing ramps to access the workplace. HIV-positive status is a physical disability that is protected under the HRA. Employers must not refuse to employ an individual who is HIV positive, unless doing so would place others at immediate risk of danger or constitute an undue financial hardship (as, for example, when a day care owner faced economic hardship because clients withdrew their children if the owner hired an HIV-positive employee).
Family and Marital Status
Family status is interpreted as being related to another person by blood, marriage, or adoption. Marital status includes being married, single, divorced, or in a common-law relationship. An individual cannot be discriminated against in the areas of tenancy, public services, or employment based on their family status or marital status. For example, a landlord cannot refuse to rent an apartment to an individual because of that person’s parent’s or sibling’s previous rental history. Employers are required to make reasonable accommodations in situations where marital or family status may interfere with the individual’s ability to perform her job duties. For example, an employee may request a change in work shifts because of her responsibility to pick up a child after school. The employer is expected to accommodate the employee’s request if possible. However,if there are not enough employees to meet the demands, the employee will be expected to make other family arrangemeents in order to continue working at the same job.
Gender and Pregnancy
Under the HRA, gender is a protected ground in all areas, including tenancy, public services, and employment. The category of gender discrimination includes discrimination on the basis of pregnancy. Employers are not permitted to ask women in job applications or interviews if they are pregnant or plan to have children. Women cannot be fired, laid off or demoted because they are pregnant. Landlords cannot refuse to rent an apartment or house because a women is pregnant, unless the building is designated for seniors or adults only. Women cannot be refused access to hotels, restaurants, stores, schools, or hospitals because they are pregnant.
Gender discrimination also includes sexual harassment. Sexual harassment is any unwanted sexually-oriented practice that endangers a woman’s job, causes her discomfort or humiliation at the workplace, or in any other way threatens her job performance or potential. However, sexual harassment is expressed, it has three basic components: it is unwanted, it affects the women’s work, and it is an expression of power, authority or control through sex. An unwanted sexual advance includes any activity with sexual overtones such as verbal innuendo, comments, looks, physical contact, or requests for sexual favours. Sexual harassment may be accompanied by threats of demotion or firing if the victim does not comply with the harasser’s demands, or receiving favours if she does. It is the fear of retaliation that has kept sexual harassment “in the closet” for so long. Also, there is the myth that the victim has in some way brought on the unwanted advances. The existence of this myth often causes feelings of guilt in the victim. The fact of the matter is that women of all ages in all occupations are subjected to sexual harassment.
What Should I Do If I Am Being Harassed?
Several courses are available to you if you have been harassed. First of all, you may attempt to have the matter resolved internally, before you take any other action. Many large businesses and institutions, including governments and universities, have set up special procedures for dealing with this problem. Also, your union or professional association may be able to assist you. If you have been sexually harassed, you may wish to press charges under the appropriate section of the Criminal Code, such as assault, sexual assault, threat, or intimidation. You would have to notify the police who would investigate your complaint and determine whether there are “reasonable and probable grounds” to lay charges. If charges were laid, you would have to testify at the trial. However, the police may not lay charges without some corroborating evidence (other evidence which helps prove that your story is true), for example, another witness. Even if the harasser is convicted, you will not receive compensation for lost wages or other expenses. A third course of action available to you is a civil action. To proceed with a civil action, you will have to hire your own lawyer. Legal Aid is not available for most civil actions, so the cost of hiring a lawyer may outweigh any financial benefit you might receive if your suit is successful. In order to succeed, your harassment claim will have to fit within the definition of an already recognized cause of action, such as assault, battery, or intentional infliction of nervous shock. You may also sue for wrongful dismissal. In this case, you would have to show breach of the employment contract. The fourth course of action available is to file a complaint to the Human Rights Commission, which is described below.
Equal Pay and Employment Equity
Section 6 of the HRA provides for equal pay for women engaged in similar or substantially similar work as men in the same establishment, unless the different rate of pay is based on a factor other than gender which would normally justify a difference. Employment equity is a policy whereby companies will have staff representing all segments of the population including women, visible minorities, Aboriginal people, and persons with mental and physical challenges. Employment equity is not the same thing as affirmative action, nor does it mean quotas will be imposed. Rather, it means that, first and foremost, qualified persons in the four areas listed above will be given the opportunity to fill vacant positions. Employment equity is not specifically included in the human rights legislation in Alberta.
Individuals cannot be subject to discrimination based on their religious beliefs. Religious belief refers to a system of belief, worship, and conduct. An employer is expected to reasonably accommodate employees’ religious beliefs in establishing work schedules. For example, an employee who needs to pray at set times may need her break schedule to be modified to coincide with prayer times. Employees may need accommodation of the employer’s dress code, including standards about headgear or dress, if it conflicts with religious observance. An employee may require a day off to observe a religious holiday. When requesting accommodation, the employee should provide information about the guidelines and rules of her faith and religion so that the employer can assess and respond to the request.
Filing a Human Rights Complaint
If you believe that you have been the victim of discrimination, you may file a complaint with the Human Rights Commission. After a complaint has been filed, the Human Rights Commission may appoint a conciliator to attempt to reach a settlement. If no settlement is reached, the director may appoint an investigator to look into the complaint. Any person who has or may have relevant information must cooperate with the investigators and provide any relevant documentation. At any time the director has the authority to decide if your complaint will be dismissed. You may request a review of the dismissal within thirty days of receiving notice of the dismissal of the complaint or notice of discontinuance.
If the Commission finds that “reasonable grounds” exist, a human rights tribunal is appointment to deal with the complaint. Evidence may be given before a human rights tribunal in any manner that the tribunal members consider appropriate, and the tribunal is not bound by the rules of law respecting evidence in judicial proceedings. The decision of the panel is binding on both parties but may be appealed to the Court of Queen’s Bench.
Since the HRA is not meant to punish a wrongdoer, you should not expect a large damage award if your case is successful. However, pursuing such an action does not cost you anything. The Board may order the wrongdoer to apologize, to change its practices, to pay you for lost wages and opportunities, and for psychological harm.
Protection from Retaliation
Individuals are protected under the HRA from any form of retaliation, such as discharge, suspension, expulsion, intimidation, or coercion. The HRA specifically prohibits reprisals against any person for having lodged a complaint of discrimination with the Commission, giving evidence concerning a complaint, or affecting a complaint indirectly in its initiation, investigation, or settlement.