5 FAQs About Workplace Sex Discrimination
Published:
March 31, 2015
Author(s):
Updated June 24, 2021.
Women make up close to half of the employed workforce: in 2019, Canadian women 15 years and older represented 47.4% of the labor force. You might assume, then, that discrimination on the basis of “sex” is a thing of the past. And many – even most – employers do their best not to discriminate based on sex because it complies with the law and, many argue, makes good business sense. Yet workplace sex discrimination against women persists.
#MeToo. Since the Supreme Court of Canada’s 1989 decision in Janzen v. Platy Enterprises Ltd., the law has recognized sexual harassment as sex discrimination. But the #metoo and #timesup movements have more recently focussed well-warranted attention on workplace sexual harassment – most, according to research, experienced by women – and employers’ obligation to prevent and address it.
Pay Equity. As recently as 2018, female employees aged 25 to 54 earned $0.87 for every dollar earned by men. This wage gap is narrower than it used to be, but it’s still there. And nearly two-thirds of the gap in 2018 was unexplained, though possible explanations include gender-related biases.
COVID-19. The COVID-19 pandemic has had an immeasurable impact on the workplace and all its participants. But research suggests that the workplace impact of COVID-19 is being disproportionately felt by women.
These are big issues. But the growing trend to incorporate ESG (Environment, Social and Governance) principles into account is driving more employers (and their stakeholders) to revisit and revise EDI (Equality, Diversity and Inclusion) performance in their organizations. And employers can work toward eliminating workplace sex discrimination every day by complying with their human rights obligation not to discriminate against employees on the basis of sex. To help, here are the answers to five questions employers frequently ask us about sex discrimination.
1. Is it discrimination based on sex if the employer terminates an employee’s employment because of their high rate of absenteeism due to their child care obligations?
Maybe – but it’s more likely it could be discrimination based on “family status”. All Canadian human rights laws except in Quebec (which protects “civil status”) prohibit discrimination in employment based on an employee’s “family status”. It’s well-established that the scope of family status protection includes a parent’s childcare obligations. Whether a particular situation amounts to discrimination will always be very fact-specific. Several factors are relevant to determine whether there is discrimination due to child care obligations, but the legal test for family status discrimination in employment remains a moving target, and will likely evolve significantly in light of COVID- related requests. As in all discrimination situations, the employer has a duty to accommodate the employee’s needs to the point of undue hardship, and the employee has a duty to cooperate in the accommodation process. In the context of family status, this includes sharing information with the employer about the relevant needs to allow the employer to identify and assess potential accommodation options, and working cooperatively to find a reasonable (not a perfect) accommodation solution.
2. Is it discrimination based on sex if an employer discriminates against an employee because the employee is transgendered?
It’s discrimination based on gender identity or gender expression. Historically, human rights laws didn’t expressly protect gender identity or gender expression from employment discrimination. As a result, human rights adjudicators across Canada swept “gender identity” into a progressive definition of “sex”, a protected personal characteristic under all Canadian human rights laws. But now, the human rights laws of Canada and of every Canadian province and territory have expressly added gender identity and/or expression as protected characteristics. This means, among other things, that an employer must provide transgendered employees with a harassment-free workplace. So it’s no longer necessary that, for example, transgendered persons rely on sex discrimination for human rights protections – though depending on the circumstances, it might be the most appropriate basis.
3. Is sexual harassment considered discrimination based on sex – even it if happens outside of the office and after-hours?
Yes – and very probably. 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 that has a connection to the workplace. Courts and tribunals have accepted the Ontario Court of Appeal’s 1999 decision in Simpson v. Consumers’ Association of Canada broadening the definition of workplace sexual harassment to include sexual harassment outside of the office during work-related events, confirming that work-related social events constitute the workplace for this purpose. This is the case whether the harassment is direct or indirect, whether it’s directed to or from a co-worker, customer or client, and whether the harassment is in-person or via an “online” platform (like social media or email).
4. 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. In one of its first decisions on sex discrimination, the 1989 case of Brooks v. Canada Safeway Ltd., the Supreme Court of Canada decided discrimination against an employee because they are pregnant is sex discrimination. The employer might not, depending on the province, have a legal obligation to continue to pay for the benefits for an employee on maternity leave under the applicable 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 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 that’s discrimination based on sex.
5. Can an employment rule or policy be discriminatory based on sex even if it doesn’t single sex out, or the employer didn’t intend to discriminate?
Yes. The focus of discrimination and human rights protection against it is on the both the purpose and the effect. A rule or policy or an action is discriminatory if its purpose is discriminatory – or 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). This is commonly called adverse effect or indirect discrimination. The seminal Supreme Court of Canada decision that established the legal test for the bona fide occupational requirement defence, Public Service Employee Relations Commission v. British Columbia Government and Service Employees’ Union, was a sex discrimination case in which a female forest firefighter was dismissed because she failed to meet the aerobics standard set by the job requirements. While the requirement didn’t single women out, and the employer didn’t intend to discriminate against women on the basis of sex, the standard was based on male aerobic capacity. The Court decided this amounted to adverse effect sex discrimination because women generally have a lower aerobic capacity than their male counterparts. As recently as October 2020, the Supreme Court of Canada, in Fraser v. Canada (Attorney General), decided the refusal to allow employees who participated in a job-sharing program, mostly used by female employees, to purchase full-time pension credit for their job-sharing service was discriminatory. Neither of the pension plan or the job sharing program made distinctions based on sex on their face, but the policy’s adverse effect on women amounted to sex discrimination. Dress codes offer a more common example of adverse effect discrimination; workplace dress codes are often attacked for both direct discrimination based on sex, and indirect discrimination based on sex and other protected grounds, such as religion and gender identity or expression.
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.
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