Aug 30

Human Rights Hard Proof

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Many times I have found that what initially seemed to be a simple layoff was actually, after further investigation, a human rights violation. Also, there can be ongoing human rights violations when persons are merely marginalized at work as opposed to being laid off. Human Rights laws have a major impact on both employees and employers and both sides of the coin need to keep a lookout in order to protect their interests.

Grounds of discrimination
It is a human rights violation to discriminate against someone on the basis of a large number of grounds including the following categories:

1. Disability:

“Disability” is a very broad category in law which can potentially include stress, learning disabilities, temporary injuries, and physical disabilities. It is very common that persons have undiagnosed disabilities which have resulted in problems at work (for instance, dyslexia causing poor reviews for editing work). Very often employees are assessed against an inappropriate standard because of their different abilities and employers run into real issues with having an impartial assessment of employees’ abilities given their disability.

If you have any type of disability, be it visible or invisible, it is unlawful for you to be discriminated against on this basis. Your employer must accommodate your disability to the point of undue hardship.

2. Race/Creed/Ancestry/Ethnic Origin:
This includes not only where someone is from, the colour of their skin, but also mannerisms of particular cultures (for instance being ‘overly emotional’ or ‘distant’).

3. Marital and Family status:
Marital and family status discrimination has expanded in recent years, moving from what was once protection of being married to now preventing significant interference with legitimate child or eldercare responsibilities. These child and elder care responsibilities are protected activities because of their importance to society and, therefore, discrimination or unfair treatment based on these duties is not allowed.

4. Age-discrimination:
As Ontario has abandoned the idea of having mandatory retirement, age discrimination issues have become more and more common. Age discrimination is common and can include comments about not ‘learning quickly’ or not using technology well. Indirect discrimination is just as culpable as direct discrimination and must be watched out for by both employees and employers.

5. Gender/Sexual orientation:
Gender and sexual orientation discrimination includes harassment which is the most common form of discrimination both based on gender and those identifying/identified with the LGBTQ community.

Both Tribunals and Courts have jurisdiction

Human rights are enforceable in specialized human rights tribunals or the courts. However, these matters can be heard by the courts, if the discrimination is tied to another matter which can be tried in the courts, for instance termination of employment. In deciding if it is better to go to the Courts or a Tribunal make sure you get legal advice.

Human Rights Cases turn on hard proof

For both employers and employees often the largest issue in these types of cases is hard proof. For employees, it is very hard to prove that a decision to terminate, not to promote, etc, is based on a discriminatory reason. On the flip side, it is difficult for employers to disprove accusations of discrimination since it can be nearly impossible to disprove a negative.

Human Rights cases often are decided based on just a few, or even one, pieces of hard evidence.

Evidentiary requirements

Since hard evidence is so important, often the issue becomes about what documents are required to be given to the other side. If your employer has an email that describes a discriminatory practice you can be entitled to get a copy of it in some circumstances, however, the courts will not allow for ‘fishing expeditions’.

For employers it is important to know what documents to give, what to deny, and then to attempt to move to dismiss a complaint that is without merit.

As Human Rights complaints become more and more important in our society they also become more complex. If you need assistance with a Human Rights related matter make sure to contact Monkhouse Law today.