What is Ethnic Discrimination in the Workplace?

| September 18th, 2017 | No Comments »

Ethnic discrimination occurs when an employee is treated different than his or her colleagues based on their ethnicity in a manner that is unfair.

A person’s ethnicity refers to the national, cultural or religious group(s) to which they belong, or are perceived to belong.  A person’s ethnicity can be shown visually (i.e. if they wear a turban), linguistically, (e.g. if they have a Chinese accent), or it can be difficult to detect.  A person’s ethnicity is associated with their cultural identity, and it can change over time.  In contrast, a person’s race is generally seen as an unchangeable part of their biological makeup.

Ontario’s Human Rights Code prohibits ethnic discrimination in the workplace.  Ethnic discrimination often overlaps with other types of discrimination under the Ontario Human Rights Code, such as race, place of origin, creed and ancestry.

Ethnic discrimination in the workplace can come in many forms, some of which are very commonplace.  A manager who makes fun of his subordinate’s hijab would likely have engaged in ethnic discrimination.  An employee who is denied a receptionist position based the fact she is not proficient in English may have experienced ethnic discrimination.  She could make an application to the Ontario Human Rights Tribunal claiming discrimination on the basis of ethnic origin.  However, the potential employer could defend against her claim by arguing to the Tribunal that English proficiency is a legitimate requirement for the position.  The Tribunal will closely analyze the claim that English proficiency is required for a position.  In many cases, an employee does not need to have perfect English skills in order to perform the duties associated with a particular position.

Author: Simone Ostrowski, Whitten & Lublin

Tips for Legally Sound Termination Letter

| February 13th, 2017 | No Comments »

It is all too easy to write a termination letter that does not comply with the law.  Here are some common pitfalls and tips for ensuring that your termination letter is legally sound:

  • Tip #1 – Consider whether you may be using out-of-date precedent: This one is most common.  Sometimes employers use and reuse the same termination letter for years.  While the letter was drafted by a lawyer at one point in time, it has not been reviewed by a lawyer in years.  Employment laws have changed in the meantime, and the termination letter has become unlawful.  If your company uses a precedent termination letter, have your employment lawyer review it at least once a year.
  •  Tip #2 – Ensure that the letter states that the employee is being provided with at least the minimum requirements under the Employment Standards Act, 2000: If the employee’s employment is terminated without cause, they must be provided with a specific amount of notice of termination, and, if applicable, severance pay.  If the termination letter provides less termination and severance pay than what the Employment Standards Act, 2000 says the employee should get, it may be unlawful.  Be aware that even employees who are paid solely on the basis of commission are entitled to termination pay.  Similarly, if the termination letter does not provide for the employee’s benefits to continue during the time period that they receive termination pay, it may be illegal.
  •  Tip #3 – Provide Valid Consideration: If you are asking the employee to sign a legal release on or after termination, you must offer them something that more than just the termination and severance pay that they are otherwise entitled to under the Employment Standards Act, 2000.   You cannot offer an employee something that they already entitled under the law in exchange for their signature on a release.  You must offer something them something in addition to their existing legal entitlements.
  •  Tip #4 – Do not Attempt to Rely on an Employment Contract that is Invalid: Often, in a termination letter, an employer will reference an employment contract signed years ago, such as a termination provision limiting the employee’s entitlements on termination. For the same reason as Tip #1, above, you should ensure that the contract language that you want to repeat in your termination letter is still legally valid. Some common termination provisions found in older employment contracts have been deemed invalid and inapplicable in recent court decisions.
  •  Tip #5 – Be Careful when Alleging a Reason for the Termination: If the termination is without cause, there is no general requirement for an employer to provide a reason for the termination.  However, if the termination is with cause, you generally must provide a reason.  It is important to get the exact reason for a with-cause termination right.  If you terminate an employee’s employment for cause for a reason that turns out to be false or flimsy, they could sue for additional damages on that basis.

If you have questions about writing a legally sound termination letter, or if you think that your termination letter is unlawful, contact one of the lawyers at Whitten & Lublin for assistance.

 

Author: Simone Ostrowski, Whitten & Lublin

What You Can Do About A Hostile Work Environment

| October 14th, 2016 | No Comments »

Hostile Work EnvironmentA hostile work environment is distressing for employees and costly for employers. Fortunately, the law provides many ways to combat and prevent hostile work environments.

An employee who is subject to a hostile work environment because of his or her race, sex, age, disability, family status, or any other trait listed in Ontario’s Human Rights Code, may be able to file a claim at the Human Rights Tribunal of Ontario. The Tribunal hears claims related to hostile work environments that are rooted in employee’s protected traits.

An employee who is punished because they reported a hostile work environment to their employer can file a complaint to the Ministry of Labour under Ontario’s Occupational Health and Safety Act. Health and safety law also says that employers must protect employees from workplace harassment which can lead to a hostile work environment. Employees must also have a way to report allegations of harassment, and employers must investigate each employee’s allegation of harassment.

If a hostile work environment makes it intolerable for the employee to report to work, the employee may be able to quit their job and claim constructive dismissal. A constructive dismissal occurs where an employee has been treated so poorly that they are forced out of their job as if they had been fired. The employee quits, but then claims the payments that they would have been entitled to from the employer if the employee had been fired. A constructive dismissal can take place where an employer takes part in creating the hostile work environment, or where an employer does not prevent a hostile work environment.

Employees should not be too quick to quit and claim constructive dismissal, though. Constructive dismissal is very difficult to prove. Where an employee claims to have quit because of the employer’s actions, or lack of action, related to a hostile work environment, the employee must prove that it was intolerable for them to continue working, and would have been intolerable for any reasonable person in their position.

If your employer is simply upholding a reasonable workplace rule or policy, this will usually not be considered a hostile work environment. For example, if you are suspended because you were continuously late to work in violation of your employer’s lateness policy, your suspension would probably not be unlawful.

If you feel that you have been subject to a hostile work environment, you should speak with an employment lawyer before taking any action.

 

Author: Simone Ostrowski, Whitten & Lublin