Bias in the workplace is often problematic but it is not on its own illegal.
For example, it is not against the law for your boss to promote someone else or even fire you for the reason that she simply likes him better. However, if the reason she prefers your co-worker over you relates to a protected human rights ground there is a good chance her actions are illegal.
Under human rights legislation employers cannot discriminate based on any of the following factors:
- place of origin
- ethnic origin
- sex / pregnancy
- gender identity
- gender expression
- family status
- marital status
- sexual orientation
- receipt of public assistance
- record of offence
So, in the above scenario, if your boss liked your co-worker better and fired you because she feels he has “more energy and fresher ideas” and hasn’t missed as much time visiting the doctor that sort of bias is illegal as that preference is tied to your age and disability.
Importantly, discrimination does not need to involve a termination for it to be considered illegal. For example, the following would also be illegal:
- Preventing employees with accents from having client facing roles;
- Punishing single parents that call in late because their child was unexpectedly ill;
- Awarding Canadian citizens more lucrative business opportunities;
- A practice of not hiring women that are likely to start a family;
- Denying a transgendered person travel opportunities to areas the employer views as “less tolerant”;
- Treating normal differences of opinion as insubordinate or confrontational when racialized persons are involved; and
- Inviting only males to a company sponsored charity basketball tournament.
Employers are wise to have policies and procedures in place that help them avoid bias rooted in discrimination. These policies should also encourage employees to report the discrimination to the employer and allow for a confidential investigation to take place.
If bias is occurring in your workplace and a protected ground is linked to that differential treatment consider consulting the Whitten and Lublin team for an expert assessment of your situation and a potential damages award.