Diversity and Inclusion: Recent Rulings Clarifying Employers Rights and Obligations

The authors thank Paul Caron-Plaisance, a law student, for his precious contribution to the following article. 

Diversity and inclusion have become imperatives for all companies in the current business context. Quebec employers are increasingly aware of the tangible benefits of diversity and inclusion, both in human and organizational terms, and are keen to create an inclusive work environment that respects diversity.

To do so, it is essential to navigate carefully within the applicable legal framework to ensure fair and inclusive management in the workplace. Recent rulings in the field of Labour law guide employers by addressing the legal framework's specificities and the realities of their work environments.   Here are three cases that caught our attention.

The Bilac Case

The Canadian Human Rights Tribunal recently reviewed a complaint filed by a transgender man who alleged that he was subjected to discriminatory harassment while working at a trucking company. In this case, the plaintiff's gender identity is not reflected on his driver’s license and other government documents.

According to the plaintiff, the alleged harassment stems from the fact that his bosses and colleagues refuse to recognize his gender identity and use incorrect nouns and pronouns in his presence, despite numerous corrections on his part.

In its analysis, the Tribunal reiterates what an employed individual has to demonstrate in a lawsuit for discriminatory harassment in employment matters. The alleged acts must be:

• Based on a ground of unlawful discrimination;
• Unsolicited or unwelcome; and
• Persistent or severe enough to create a hostile or negative work environment that affects the employee's dignity.

As the criteria indicate, it is irrelevant whether the infringement on the rights of the employed individual is intentional or not.

According to the Tribunal, gender identity or expression are prohibited grounds of discrimination under the law. The Tribunal holds that non-recognition of gender identity is a "critical stressor that is experienced as humiliating, stigmatizing, psychologically distressing, and dehumanizing" for a transgender person and that this harm extended throughout the complainant's employment period.

All three criteria were met. So it was up to the employer to avail himself of a valid defence. This includes showing that the harassment "occurred without his consent, that he had taken all necessary measures to prevent it, and that, subsequently, he attempted to mitigate or nullify its effects."

The Tribunal failed to identify any positive effort on the employer's part, which had not even implemented a harassment policy. The Tribunal granted the complainant $18,000 in damages.

Note that even though this decision was rendered under the Canadian Human Rights Act, it remains relevant for all employers in Quebec, as gender identity or expression is a protected ground under the Quebec Charter of Human Rights and Freedoms. Furthermore, the analytical framework of this case could be applicable in the context of a harassment complaint under the Act Respecting Labour Standards.

The Bilac ruling clearly establishes that failure to respect an employee’s gender identity (by not using their chosen pronouns, for instance) can constitute harassment in the workplace.

The Nipa Case

The Canadian Human Rights Tribunal also recently reviewed the complaint of a woman who alleged that she was discriminated against based on her race and/or national or ethnic origin during an employer's hiring process. During an informal interview, her ability to communicate verbally efficiently had been judged insufficient.

After analyzing the facts, the Tribunal could not identify any intent to discriminate on the employer's part. However, its analysis did not stop there: all circumstantial evidence is examined to determine if unconscious or involuntary biases influenced the decision to eliminate the plaintiff from the selection process.

The Tribunal concludes that there is no basis for inferring that the recruitment officers had an unconscious negative bias against candidates of the same ethnic origin as the complainant. To support its conclusion, the Tribunal takes into account the statistics submitted by the employer on the diverse composition of its workforce. In this regard, the Tribunal states as follows:

" The evidence included statistical evidence of a diverse workplace trained in discrimination without any indication of hiring biases against south Asia people or of their underrepresentation in the workforce.”

That ruling highlights that employers' sincere efforts in diversity and inclusion do not go unnoticed by administrative and judicial authorities. Employers are encouraged to take diversity and inclusion initiatives, such as adopting policies and collecting data from self-identification mechanisms. In addition, we note that this decision addresses the concept of "unconscious biases."  Employers could train their recruiting staff to recognize those unconscious biases because, as the Tribunal pointed out in the Nipa case, this form of discrimination is also illegal.

The Ruling Upholding the Act Respecting the Laicity of the State

In what is undoubtedly one of the landmark rulings of the year, the Quebec Court of Appeal has largely upheld the controversial Act Respecting the Laicity of the State, which has significant implications for employers in the public sector. For example, the law prohibits certain individuals in positions of authority in the public sector (e.g., teachers of public schools and police officers) from wearing religious symbols. In accordance with the will of the provincial government, public employers must comply with the provisions of the law, even if they infringe on certain fundamental rights.

The Act Respecting the Laicity of the State doesn’t apply to private employers. That means that a person employed by the private sector is not legally obligated to refrain from wearing religious symbols in performing their duties, and private employers retain their duty to accommodate for religious reasons. An employee can request accommodation for religious reasons. The employer must then seek solutions to meet their needs up to the point of undue hardship. This may include, but is not limited to, impacts on the proper functioning of the business.

Our Labour & Employment Law team is available to assist you with any questions you may have regarding diversity and inclusion within your company.