Direct Discrimination

Direct discrimination is one of the most common forms of discrimination in the workplace. It is the employer’s duty to put in place and enforce policies and practices to prevent discrimination.

Failure to tackle discrimination in your workplace can lead to a dip in employee morale and in some cases, a human rights claim being made against you.

In this guide, we will go over direct discrimination in the workplace, common types of direct discrimination, exceptions, and how to prevent it.

How is Discrimination Defined?

According to the Ontario Human Rights Commission, discrimination is not defined under Ontario’s Human Rights Code. However, it is commonly defined as the unequal treatment based on a protected ground.

The following protected grounds are included in all Canadian human rights legislation:

• Age.
• Sex.
• Race.

Disability Discrimination may also include an individual’s negative attitudes or stereotypes about a person that leads to negative or unfair treatment.

People often think that discrimination does not exist if it is not intentional, however, discrimination may occur without intention or an intention to harm. It’s crucial you understand what direct discrimination is before you can manage it successfully in your company.

What is Direct Discrimination?

According to the Ontario Human Rights Commission, a person discriminates directly when the action itself is discriminatory and when the person acts on his or her own behalf. Some examples of direct discrimination in the workplace are:

• An employer refusing to consider a pregnant candidate.
• An employer excludes an individual due to them holding a protected ground.
• An employer relocating an employee from a client-facing to non-client-facing role due to the employee’s religious garb.
• Making inappropriate gestures or comments about the LGBTQ+ community.
• Terminating an employee because they belong to a visible minority group.

How are Employees Protected from Direct Discrimination?

Employees are protected against discrimination by applicable human rights legislation. Each province has established their own human rights legislation.

For example, human rights protections for provincially regulated employees in Ontario are provided under the Ontario Human Rights Code. Other provinces include:

• The Human Rights Code of British Columbia.
• The Alberta Human Rights Act.
• The Human Rights Code of Manitoba.
• The Saskatchewan Human Rights Code.

The Canadian Human Rights Act provides human rights protection from discrimination if you are a federally regulated employee. Some examples of federally regulated workplaces are:

• Bank Institutes.
• Transport companies, for examples railways.
• Television companies.
• Broadcasting companies.

While its important to understand direct discrimination, you must also be able to recognize the difference between direct discrimination and other forms of discrimination, such as indirect discrimination.

What is the Difference Between Direct and Indirect Discrimination?

Direct discrimination is the most obvious form of discrimination. However, in some circumstances, discrimination may not be so obvious. This is referred to as indirect discrimination. Indirect discrimination is more subtle and discrete and may not necessarily be discriminatory on its face.

For example, a company policy that awards additional growth opportunities or other incentives for employees working overtime hours. This policy may indirectly discriminate against employees who have family obligations.

Although this outcome is not intentional, may have what is called “constructive” or “adverse effect” on certain individuals based on the protected ground of family status.

Common Types of Direct Discrimination in the Workplace

Human rights legislation protects individuals from discrimination based on various protected grounds. Below is a list of common types of direct discrimination in the workplace.

Direct Discrimination based on Sexual Orientation

Employers must be aware of sexual orientation in the workplace. Often, sexual orientation discrimination is overlooked but can have a severe impact on individuals who identify as a member of the LGBTQ+ community.

An example of direct discrimination based on sexual orientation would be a manager showing preferential treatment (expensed lunches, increased growth opportunities, higher salaries, etc.) to employees who identify as straight.

Direct Discrimination based on Race

Another common type of direct discrimination is discrimination based on race. For example, an employer choosing one employee over another for a promotion based on race despite having better employment record.

Direct Discrimination based on Disability

One of the more common types of direct discrimination is discrimination based on disability. Employers must accommodate persons with disabilities in the workplace.

For example, an employer placing an employee returning from an injury-related leave at a lower position and lower pay because the employer feels the employee cannot handle the job duties. Employers have what is called a ‘duty to accommodate’ employees who have a disability.

Duty to Accommodate

According to human rights legislation, employers have a duty to accommodate the needs of people who are adversely affected, based on a protected ground, by a requirement, rule or standard.

The goal under the duty to accommodate is to allow the employee to comfortably carry out their work duties, despite their disability, religion, race, age, etc. An employer may have to change the employee’s job requirements or hours of work, provide someone to help the employee perform their job duties, or make changes to the role itself.

Depending on the protected ground, not all accommodations will be the same. When it comes to disability, accommodations will be different for an employee with a physical disability versus a mental disability.

Employers should work with their employees to assist in determining the best method of accommodation.

Examples of Reasonable Accommodations to Avoid Direct Discrimination

To ensure you are creating and maintaining an inclusive workplace, free from discrimination, it is important you familiarize yourself with common examples of accommodations such as:

• Allowing a flexible work schedule.
• Making building changes to allow better access, such as ramps or lifts.
• Providing different ways of communicating with hearing impaired employees.
• Providing additional training and education.
• Making changes to alter job duties to accommodate for persons with disabilities.
• Modifying workstations, such as providing chairs with better back support.

Can an Employer Refuse Reasonable Accommodation Requests?

As an employer, you cannot refuse a reasonable request for accommodation. For persons with disabilities, accommodations are vital to the worker’s employment. Refusing such requests for accommodation may be discriminatory.

The following steps should be taken by the employer if an employee makes an accommodation request:

• All accommodation requests made by a person in good faith should be taken seriously.
• Obtain any expert opinions or advice if needed.
• Communicate with the employee about all the options available for their accommodation – ensure you keep the matter confidential at all times.
• Keep a record of the accommodation request and any action taken; this will help avoid conflict in the future.
• Respond to any accommodation requests as quickly as possible.

Employers have a duty to consider all requests for accommodations and grant them to the point of undue hardship.

Exceptions to Direct Discrimination and Duty to Accommodate

An employer may not be able to accommodate a request due to a requirement, qualification, or factor of the position. This is commonly referred to as a ‘bona fide occupational requirement.’ Human rights legislation allows this exception if the employer can show that the requirement:

1. Was adopted for a purpose or goal that is rationally connected to the function being performed.
2. Was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal.
3. Is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
4. For example, if an employer refused to hire an individual who is blind because the essential job requirement is to drive across the city.

In Ontario, there are three considerations to determine for employers if the accommodation causes undue hardship, which are:

1. Cost.
2. Outside sources of funding, if any.
3. Health and safety requirements, if any.

These are the only considerations that would be taken into account to determine whether the accommodation would cause the employer undue hardship.

Reasons such as business inconvenience or customer and third-party preferences would not be considered undue hardship. Moreover, it is the employer who must show that denying or refusing accommodation would cause undue hardship.

How to Prevent Direct Discrimination

The employer holds the responsibility to create and maintain a healthy and inclusive workplace, free from discrimination. You are in violation of human rights legislation, whether directly or indirectly, if you authorize, condone, or adopt a discriminatory behaviour.

To help prevent direct discrimination in the workplace, employers should put in place the following strategies to address human rights issues.

Organizational Commitment

Employers should set out a mission statement to all employees and prospective employees, committing to a healthy, equal, and inclusive environment, free of discrimination and harassment.

Moreover, such statement should include that the workplace is free from discrimination based on disability, race, sexual orientation, and other protected grounds listed in provincial and federal human rights legislation.

Workplace Violence and Harassment Policy

Employers should put in place anti-discriminatory and anti-harassment policies that highlight in detail the employer’s commitment to a healthy, equal, and inclusive environment, which includes:

• A list of prohibited grounds of discrimination in accordance with human rights legislation.
• Definitions of key terms such as “harassment” and “discrimination.”
• Descriptions/examples of unacceptable behaviour.
• Processes of how internal complaints will be handled.
• Disciplinary measures that will be applied if a complaint of harassment or discrimination is proven.
• Remedies that will be available if the complaint of harassment or discrimination is proven.

Employers should promote such policies to all employees about human rights matters including:

• Providing the policies to new employees during orientation.
• Training management on the content of the policies.
• Posting information on bulletin boards around the workplace.
• If staff works remotely, sending periodic emails about the policies.
• Continuing education to promote an inclusive work environment.

Have a Plan to Handle Complaints

In the event an employee makes a complaint about discrimination, ensure that you have a plan to handle complaints, including any investigation and disciplinary measures taken, and that you follow through. Also, inform the parties of the investigation and ensure that the investigation is confidential.

Get Advice on Direct Discrimination with BrightHR

As an employer, it is important to establish, maintain, and enforce policies to promote a healthy and inclusive workplace, free from discrimination and harassment.

If you fail to address or ignore situations of discrimination, you may be at risk of having a human rights claim filed against you, which could lead to you paying thousands of dollars in legal fees and payouts.

If you need assistance with drafting workplace violence and harassment policies and procedures or even looking to update current ones, our BrightAdvice service allows you to receive quality advice on any employment issues you may have.

Contact us on 18882204924 or book a demo today.