Keeping Pace | 5 FAQs About Workplace Sex Discrimination

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Keeping Pace | 5 FAQs About Workplace Sex Discrimination

March 31, 2015

By Dominique Fontaine, at McInnes Cooper

Women make up close to half of the employed workforce (according Statistics Canada’s 2009 data, the most recent available). You might assume, then, that discrimination on the basis of “sex” is a thing of the past. But data from human rights commissions suggest women are disproportionately represented in sex discrimination complaints. For example, the NB Human Rights Commission’s 2013-2014 Annual Report indicates women and men each filed 50% of the total discrimination complaints – but women filed 78% of the sex discrimination complaints, and 78% of the sex discrimination complaints were employment-related. At least in NB, most sex discrimination happens at work, and most sex discrimination is against women.

Many employers do their level best not to discriminate because it complies with the law and, many argue, makes good business sense. And, most employers know, for example, that discrimination based on pregnancy is sex discrimination and that posting Playboy centerfolds in the office is usually going to amount to sexual harassment. But things move quickly, and it’s sometimes tough for employers to keep pace, including in the area of sex discrimination.

To help employers comply with human rights obligations, here are the answers to 5 frequently-asked questions about workplace sex discrimination.

Is it discrimination based on sex if the employer normally pays (or co-pays) for health benefits but stops doing so for an employee who takes maternity leave under employment standards laws? Maybe. The employer might not, depending on the province, have a legal obligation to continue to pay for the benefits under employment standards laws. And, it’s not generally discriminatory to deny the accumulation of benefits to employees on maternity and/or parental leave – if the practice is consistent with other types of unpaid leave. But what if the employer continues benefits during other types of unpaid leave (like, for example, education leave or compassionate care leave) but not during maternity leave? There’s a good chance refusing to do so during maternity leave is discrimination based on sex.
Is it discrimination based on sex if the employer terminates an employee’s employment because of her high rate of absenteeism due to her child care obligations? Probably not – but it might be discrimination based on “family status”. All Canadian human rights laws except those in New Brunswick and Quebec prohibit discrimination in employment based on an employee’s “family status”. Two court decisions (Canada (Attorney General) v. Johnstone, 2014 FCA 110 and Canadian National Railway Company v. Seeley, 2014 FCA 111) recently confirmed that “family status” in human rights laws includes a parent’s childcare obligations of a parent. To prove discrimination based on family status resulting from childcare obligations, the employee must prove that:
- a child is under her care and supervision;
- the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- the employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, but none is reasonably accessible; and
- the workplace rule that’s in issue interferes with the fulfillment of the childcare obligation in a way that’s more than trivial or insubstantial.
Is it discrimination based on sex if an employer discriminates against an employee because the employee is “transgendered”? Probably. Human rights adjudicators across Canada have swept “gender identity” into a progressive definition of “sex”, a protected personal characteristic under all Canadian human rights laws, even though most Canadian human rights laws don’t explicitly include “transgender” or ”gender identity” as a protected personal characteristic. This means, for example, that an employer must provide transgendered employees with a harassment-free workplace harassment, including for the use of gender designated washrooms.
Is sexual harassment considered discrimination based on sex – even it if happens outside of the office and after-hours? Yes – and maybe. Some human rights laws explicitly prohibit sexual harassment; if not, then sexual harassment is prohibited as discrimination based on sex. For the purposes of sexual harassment, the “workplace” isn’t confined to the four corners of the employer’s premises or during “working hours”; it’s anywhere and anytime with a connection to the workplace, whether direct or indirect – and whether a customer or client is the harassed or the harasser.
Is it still discrimination based on sex even if the employment rule or policy doesn’t single sex out, or the employer didn’t intend to discriminate? Yes. The focus is on the effect of the rule or policy, not just its purpose. A rule or a policy or an action is discriminatory if its effect is discriminatory – even if it doesn’t expressly single out a group, and even if the employer didn’t intend to or mean to discriminate against the employee (or group of employees) based on sex (or any other personal characteristic that human rights laws protect).

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Human Rights Law Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2015. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.

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