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5 ways workplace discrimination can be costly

Posted by on Jul 31, 2012 in HR Issues, Legal, Moneyville | 0 comments

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July 31, 2012

The Ontario Human Rights Code prohibits discrimination in employment on 14 prohibited grounds including race, gender and disability. If you have been fired  or mistreated as a result of one of these forms of discrimination, one way to obtain compensation is to file a complaint with the Ontario Human Rights Tribunal.

In a recent blog, the MacLeod Law Firm discussed five things every employer should know about the Ontario Human Rights Code. Because much of this information is also relevant to employees, we share an edited version of that list with you below.

1.   The costs of a human rights complaint

Anyone can file a human rights complaint and it costs nothing to do so. On the other hand, the costs for an employer defending a complaint can be high. You will generally not be ordered to pay the employer’s legal costs, even if you are not successful.

The best time to settle a claim is at mediation. The Tribunal offers three hours of free mediation to all claimants. If your case cannot be settled, you have the right to force a case to a hearing.

However, if you lost your job as a result of discrimination, there are several other forums where you can seek redress from your employer. Get legal advice to find the best way to proceed.

The Law Society Referral Servicewill give you the name of a lawyer or paralegal within or near your community, who will provide a free consultation of up to 30 minutes to help you determine your rights and options.

Related: Fired? Be careful where you sue

 

2.    Damages claims available

There are two types of damages that can be awarded in human rights cases:  special damages and general damages.

Lost income is one example of special damages. If you claim you were fired based on your gender, then you can ask for termination pay. As compared to wrongful dismissal awards in the courts, damages for termination pay can be much greater under the Code.

In one case, a 58-year-old man claimed he was discriminated against because of his age. An adjudicator agreed and awarded him 7 years pay. A superior court judge in a wrongful dismissal case typically would not order more than 24 months pay to even a long-service employee.

General damages are to compensate employees for suffering humiliation and loss of self-respect experienced as a result of discrimination. A number of factors are considered by the Tribunal when assessing general damages and since 2008, the Tribunal has had the jurisdiction to award unlimited general damages. As of January 2012, general damage awards have ranged from approximately $1,000 to $40,000.

Related: Fired HIV positive worker gets $27,000

3. Your employer must investigate all claims

The Tribunal can and will order an employer to pay you damages for failing to adequately investigate a human rights complaint, even when you have not been subject to any discrimination. For this reason many organizations have implemented a written anti-discrimination policy which outlines procedures that must be followed when the company becomes aware of possible workplace discrimination.

4. What accommodating a disability means

If the Tribunal finds you have a disability, your employer is required to accommodate your disability unless doing so would cause undue hardship. However, the onus is on you to disclose that you have a disability and to explain how your disability can be accommodated.

For example, if you have a bad back and need a specific chair, you must inform your employer of your limitations and suggest the type of chair that would allow you to work comfortably. Then your employer is required to accommodate you.

The Commission has issued guidelines on disability and the duty to accommodate.

Related: Hearing impaired employee gets $27,500

5. Ignoring a Human Rights complaint is a bad idea

The case law confirms that it is not wise for employers to ignore human rights complaints. In a March 2011 decision, Myriam Llano filed a complaint against Fairweather Inc. claiming the employer did not accommodate her bad back.

In spite of several medical notes indicating she needed to work sitting down as a cashier, the company decided all employees had to work as sales associates on the floor. Liano was reduced to part-time hours and eventually terminated when she could not perform as expected.

Fairweather filed a response to her complaint and attended mediation but decided not to show up for the hearing. Not surprisingly, the Tribunal found in her favour. She asked for and was awarded 12 months lost wages. She also received $ 20,000 in general damages for injury to her dignity, feelings and self-respect.

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