Discrimination in the workplace is a significant problem in Ontario. Understanding what constitutes discrimination and when employers are required to investigate a claim to maintain a fair and lawful work environment is critical for every workplace. When discrimination is suspected, or a complaint is made, conducting effective investigations is crucial for legal compliance and for promoting a safe and inclusive work atmosphere. Identifying and addressing systemic issues that may contribute to a discriminatory work environment is also important. Failing to investigate claims or incidents of discrimination can lead to legal and financial consequences for employers, and employees may lose trust in the company and resulting in decreased morale and productivity in the workplace.

What Constitutes Discrimination in the Workplace?

Discrimination in the workplace occurs when an employee is treated unfairly or unfavourably because of characteristics protected under the Ontario Human Rights Code (the “Code”). In the employment context, the Code-protected characteristics include:

• Age
• Ancestry, colour, race
• Citizenship
• Ethnic origin
• Place of origin
• Creed
• Disability
• Family status
• Marital status (including single status)
• Gender identity, gender expression
• Sex (including pregnancy and breastfeeding)
• Sexual orientation
• Record of offences (only in employment)

Discriminatory practices can manifest in various forms, such as:

• Unequal pay for equal work
• Harassment, including sexual harassment
• Denial of opportunities for promotion or training
• Retaliation for filing a complaint or asserting rights under the Code

While these forms of discrimination might be self-evident, it may be easy to overlook discrimination in less obvious forms, such as systemic discrimination and failure to accommodate.

Systemic discrimination

Systemic discrimination occurs when seemingly neutral policies, practices, or procedures lead to unequal treatment or have a negative impact on individuals from protected groups. Unlike overt discrimination, systemic discrimination is ingrained in the everyday functioning of an organization and can be difficult to identify and rectify, such as:

• Historical practices may disadvantage certain groups because they are no longer compatible with society’s development. The Ontario Court of Appeal affirms that systemic discrimination can result from simply doing things “the way they have always been done” without considering the impact on certain groups.

Failure to accommodate

According to the Code, failure to accommodate is also a form of discrimination. Discrimination may be found when employers fail to make reasonable accommodations for employees who fall under protected grounds, up to the point of undue hardship. Reasonable accommodations may include:

• Modifying workstations or equipment for workers with disabilities
• Offering flexible work hours or telecommuting options for workers with childcare responsibilities

When Must Employers Investigate?

Employers in Ontario have a legal duty to maintain a discrimination-free workplace. This duty is proactive, meaning employers must take steps to prevent discrimination and address it promptly when it occurs. An employer must investigate in two scenarios:

1. Formal Complaints: When an employee files a formal complaint alleging discrimination, the employer is obligated to investigate the claim thoroughly. In some cases, complaints may be submitted anonymously or by third parties. However, employers are still obligated to conduct an investigation.
2. Informal Reports or Observations: Even if a formal complaint is not filed, if an employer becomes aware of potential discrimination through informal reports or direct observation, they must investigate. The Ontario Superior Court of Justice affirmed this in Metrolinx v. Amalgamated Transit Union, Local 1587 (2024) (“Metrolinx”), and recognized that the victims may be reluctant to report discrimination and harassment. The court also emphasized that this obligation to investigate is not only related to the Code but also an employer’s mandate under the Occupational Health and Safety Act.

When Investigation Might Not Be Required?

There are limited circumstances where a full investigation may not be necessary:

1. False or Malicious Claims: If it is determined that a claim is made maliciously or is entirely baseless without any factual foundation, an employer might decide not to pursue a full investigation due to lack of merits. However, this determination should itself be based on preliminary inquiries. Additionally, the employer’s belief that the allegation cannot be substantiated does not necessarily mean that the complaint is meritless. Therefore, early engagement of legal counsel is recommended.
2. Special Programs: The Code provides that creating a program to reduce difficulty or financial inequality, or to support underprivileged individuals or groups in attaining equal opportunities, does not violate the Code ( 14 (1)). Therefore, complaints about the implementation of special programs may not trigger investigations.
3. Informal Resolution: Sometimes, issues can be resolved informally and to the satisfaction of all parties involved without a formal investigation. For instance, when an issue is resolved by workplace mediation, the employer is relieved from the obligation to investigate.

Consequences of Not Investigating

Failing to investigate a discrimination claim can have severe consequences for an employer.

First, employers are exposed to legal liability. Employers who fail to investigate discrimination claims can be held liable under the Code. This can lead to costly legal battles and significant financial penalties. In Kaur v. 1865898 Ontario Inc. (2020) (“Kaur”), the Ontario Human Rights Tribunal held an employer’s failure to investigate complaints of sexual discrimination and harassment was a violation of the Code and contributed to a poisoned workplace environment. As a result, the employer was ordered to pay the former employee $40,000 as monetary compensation for injury to dignity, feelings and self-respect.

There is also a risk of reputational damage. Failing to address discrimination can damage an organization’s reputation, leading to a loss of trust among employees, customers, and the public. This can have long-term impacts on the business. For instance, the Toronto Police Association was criticized for its failure to protect police officers facing harassment or discrimination.

Additionally, as demonstrated in Kaur, discrimination and failure to address it can lead to a toxic work environment, reducing overall employee morale and productivity.

Proper Investigation is Necessary for a Just Resolution

Every case of workplace discrimination is unique, with its own set of circumstances and details that merit careful consideration. In Metrolinx, the Court remitted the matter back to a different Arbitrator to reconsider the appropriateness of the termination. The Court also reiterated the principle for evaluating appropriate action to address sexual harassment, which is a common form of workplace discrimination and harassment. The principle was confirmed in Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011 (2013): “[N]ot every case of sexual harassment or assault demands a discharge. There are cases where it is appropriate to substitute a lesser penalty, particularly where the conduct falls on the less serious end of the continuum and the grievor has demonstrated remorse for his behaviour.”

In light of this, employers should objectively evaluate the specific conduct involved in each situation to determine the most appropriate response. Handling workplace discrimination with a thorough and proper investigation plays an essential role in this process. This approach allows for a decision as to whether termination is warranted or if a lesser penalty might be more fitting for an incident of discrimination.

Investigate Now

Thorough investigations into discrimination claims within the workplace are not just a legal obligation for employers in Ontario but a cornerstone of maintaining a respectful, inclusive, and productive work environment. They serve as a critical tool in uncovering and addressing not only overt discrimination but also more insidious forms such as systemic discrimination and failure to accommodate. By diligently investigating discrimination claims and incidents, employers can identify and rectify issues before they escalate, thereby averting significant legal, financial, and reputational consequences. Additionally, a commitment to rigorous investigations underscores an organization’s dedication to fairness and equality, fostering a culture of trust and safety among its employees.