Whose onus is it anyways?

ByStuart Rudner and Nadia Zaman

Human rights legislation across Canada, such as the Canadian Human Rights Act and the Ontario Human Rights Code, are intended to provide for equal opportunity to all citizens and prohibit discrimination based on various protected grounds including race, national or ethnic origin, colour, religion, age, sex, sexual orientation, and disability.

Discrimination is defined as adverse treatment of a person on the basis of a protected ground. In order to prove discrimination, an applicant must show that there is a connection between the negative treatment and one of the protected grounds (for example, being terminated from your employment because you are pregnant, even if that is only part of the reason).

Once the applicant establishes prima facie discriminatory conduct, the onus shifts to the respondent to justify the conduct based on an exemption available under the relevant legislation, such as those under sections 24 and 25 of Ontario’s code.

For instance, an employer may justify its failure to accommodate an employee by showing that it would cause the employer undue hardship. Aside from undue hardship, another exception is a bona fide occupational requirement (BFOR), meaning a skill or characteristic essential to a job, without which the job cannot be performed. Both undue hardship and BFOR are high standards to meet.

In order to establish a BFOR, the employer must show:

• the standard was rationally connected to job performance
• the standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that work related purpose
• the standard is reasonably necessary to the accomplishment of that legitimate purpose.

An example of this would be a requirement for pilots to have good eyesight, as it is necessary for them to be able to perform their job safely.

A respondent may also defend against an allegation of discrimination by providing evidence of a non-discriminatory reason for the conduct. For instance, where an employee alleges that she was terminated due to her disability, the employer may defend by showing that she was terminated due to restructuring, or poor performance, and that there is absolutely no connection between the negative treatment and the code-protected ground of disability.

The standard of proof is a balance of probabilities, and both parties are responsible for providing evidence at the hearing to prove their respective positions. As an example, if there is a hearing before the Human Rights Tribunal of Ontario (HRTO), the HRTO will examine the relevant evidence presented by both parties, and make a determination as to whether it is more likely than not that there was a violation of the code. The applicant does not have to prove the allegations “beyond a reasonable doubt,” as in a criminal prosecution. If a violation is found, then the HRTO will then determine what the appropriate remedy should be.

Case law: Burden of proof met

In a recent decision, Trinh v. CS Wind Canada Inc., the HRTO awarded almost $60,000 in damages to a female employee who was found to have had no choice but to resign after repeated harassment, discrimination, and failure to accommodate by senior management.

The applicant worked long hours: seven days a week from 3 am or 4 am to 8 pm. When she became pregnant, she requested 10 days off; her request was denied and the manager she directly reported to, Mr. Shin, said he was very disappointed and that she was “not like other Vietnamese.”

A few months later, she requested reduced hours (half-time) due to pregnancy-related complications, and was told that she would be fired if she worked half-days. She continued working long hours due to fear of losing her job, until she was forced to go on sick leave. She then went on maternity leave. After she returned to work, the director of production, Mr. Kim, told her: “If you cannot give me a perfect plan, you need to stay home with your son.” Mr. Kim also called her a “stupid Vietnamese woman.”

After assessing all the documentary evidence and witnesses’ testimony, the HRTO found the applicant’s testimony to be both credible and reliable. In particular, the HRTO found that the applicant’s testimony was “internally consistent,” that she “testified in a straightforward manner,” and that “(s)he was not evasive nor did she appear to exaggerate her evidence.” Notably, Mr. Shin and Mr. Kim, both of whom were alleged to have made several discriminatory comments, did not testify.

The HRTO found that the employer violated multiple sections of Ontario’s code, and ordered as follows:

• financial compensation of $25,000 for the discrimination
• $16,399 for bonuses and raises denied as a result of the discrimination
• $18,475 in lost wages
• The employer to review and change its human rights policy and distribute the new policy to all employees
• The employer to train management and executive employees on the rights and obligations of the employer under the Ontario Human Rights Code.

Case law: Burden of proof not met

In Grudonic v. Ray Daniel Salon & Spa, the applicant alleged discrimination on the basis of sex (pregnancy) and reprisal, while the respondents argued that her employment was terminated due to her poor attendance record. The HRTO dismissed the application, finding that the applicant’s “employment was terminated for legitimate business reasons and that her pregnancy was not a factor in the decision to terminate her.”

Specifically, the HRTO did not find the applicant’s evidence to be credible or reliable: “The application narrative, in material respects, is inconsistent with the testimony she gave at the hearing.” For instance, she testified that she was treated differently after announcing her pregnancy, but in her application, she alleged these incidents occurred prior to the respondent’s knowledge of her pregnancy.

On the other hand, the respondent produced copies of the applicant’s time sheets which indicated that she had a poor attendance record: during the three months of her employment, “she was late for work, left work early or failed to show up for work on 49 separate occasions”. The applicant claimed that the time sheets were fraudulent, but provided no evidence. She also explained some of her absences, but none of them were pregnancy-related.

The applicant thus failed to meet the burden of proof 一 she could not establish a connection between the negative treatment (termination) and one of the protected grounds (sex).

Takeaways for employers

While the onus is on the applicant to establish prima facie discriminatory conduct, employers need to ensure that they can demonstrate that any decisions are based on non-code grounds. If the applicant establishes prima facie discriminatory conduct, the onus then shifts to the respondent. Employers may be able to justify the conduct based on an exemption available under the relevant legislation, or by providing evidence of a non-discriminatory reason for the conduct.

Employers have the obligation to ensure that their workplaces are free of discrimination and harassment. Such behaviour must be immediately addressed with proper investigation and/or accommodation. Otherwise, employers expose themselves to significant liability for violating employees’ human rights, but also, bad publicity, the risk that they will lose employees without the ability to replace them with quality individuals, decreased employee productivity, low morale, and increased absenteeism.

Nadia Zaman is an associate at Rudner Law in Toronto.