Example 1

Adam comes in for a job interview to be a personal support worker at a privately-owned nursing home. Adam walks with a limp. Adam performs well during the job interview but isn’t offered the job because the health care administrator believed Adam couldn’t perform the essential features of the job due to his limp.

Is this discrimination?

If so, under what protected ground?

Yes. This would qualify as prima facie discrimination on the ground of disability. Even if an employer has not been formally advised of a disability, the perception of a disability will engage the protection of provincial human rights codes. The Ontario Human Rights Commission is of the position that even anticipated disabilities, where an individual does not currently have a disability but will eventually develop one that may require accommodation, will engage human rights protection.

Example 2

Rebecca requires accommodation from her employer to complete five formal prayers each day as part of her religious adherence to Islam. Her employer, a mining parts manufacturer, obliges her request reluctantly as some of these prayer times coincide with important meeting times and team huddles. Rebecca has had continuous problems with absenteeism and was recently caught stealing office supplies from work. She is terminated for misconduct.

Is this discrimination?

If so, under what protected ground?

No. This would not qualify as prima facie discrimination. While Rebecca has required accommodation due to her religious belief, the Supreme Court of Canada has held that disability must be a real factor in the adverse impact, not just part of the background. This termination is not connected to Rebecca’s religious belief, nor would it be considered a factor in their decision to terminate.

Example 3

Tyler is a supervisor at a pulp and paper mill. He has recently hired Alana, a young millwright in a permanent full-time position. Alana is a quick study and learning to do her job well receiving positive feedback from her co-workers, and Tyler. Tyler makes a few inappropriate sexual jokes to Alana and one night while working late, begins rubbing her shoulders and then goes on to fondle her breasts before Alana stops him.

Is this discrimination?

If so, under what protected ground?

Yes, this is prima facie discrimination on the ground of sex or gender. All provincial human rights codes in Canada provide protection on the grounds of sex or gender, and this protection extends as far as to cover both men and women from harassment and discrimination. Tyler’s conduct would be legally characterized as sexual harassment and potentially subject to criminal proceedings for sexual assault.

Example 4

Amy is a full-time telemarketer at a wireless mobility and cell phone company. She becomes pregnant and continues to work during her pregnancy. Due to increased pressure on her bladder, she needs to use the bathroom more often. Her employer singles her out and begins docking her pay for the extra time she is in the washroom. When the child is born she takes her maternity leave but returns to work afterward. While out shopping at the local mall, she begins to breastfeed her infant and retail staff tell her she should “cover up” and “do that in the washroom.”

Is this discrimination?

If so, under what protected ground?

Yes, this indicates two separate instances of discrimination on the ground of sex or gender. The ground of sex has come to include both pregnancy and breastfeeding. Her employer is required to accommodate Amy’s pregnancy by providing more washroom breaks, a flexible schedule or changes in job duties during pregnancy. The retail staff discriminated against Amy by requiring her to go to the bathroom, women have the right to breastfeed undisturbed in educational institutions, hospitals but also in public spaces like malls, parks, restaurants, and public transit.

Example 5

Jacob was involved in a barroom brawl and was charged and convicted of assault, a criminal offence. Later Jacob is able to secure a pardon from the Federal Government. Jacob is hired to work at a computer repair shop in his town. Later on, his supervisor discovers that Jacob has had a previous conviction and decides to terminate Jacob’s employment.

Is this discrimination?

If so, under what protected ground?

Yes, this is prima facie discriminatory, under the ground of record of offence. However, this ground is not protected in every provincial human rights code. Within the Ontario Human Rights Code, an individual has protection from discrimination based on a criminal conviction which they have received a pardon.