Primer on Human Rights Law: What Kinds of Discrimination are Prohibited?
A few months ago, I posted a primer on the employer's duty to accommodate.
Let's step it back a bit further and get even more basic, and talk about what kinds of actions human rights legislation protects against - and what kinds of action it DOESN'T protect against.
While we talk about it generally as protecting against 'discrimination', it's more accurate to say that it protects against discrimination on the basis of prohibited grounds, and within specified social contexts.
There's some variance on both the prohibited grounds and social contexts, from Province to Province.
Prohibited Grounds of Discrimination
Most prohibited grounds of discrimination are fairly obvious. In Alberta, it's about race, religious belief, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status, or sexual orientation.
These are very broad categories, and extend even more broadly. Let's talk about this in the employment context: I'm allowed, subject to certain contractual and statutory requirements, to fire my employees at basically any time on a 'without cause' basis. I don't need a good reason...but the AHRA creates a handful of reasons I'm not allowed to fire them. I'm not allowed to fire them because I find out that they're Catholics. I'm not allowed to fire them because they got married, or had kids, or became disabled. I'm not allowed to fire them because I found out that they're gay or transgendered.
I am allowed to fire an employee for wearing a cowboy hat, or for cheering for the Flames, or for eating pineapple on pizza. These capricious dismissals would be without cause, but they would be legal.
But you don't have to go far to find other reasons that may be connected to a prohibited ground. I may be able to fire for wearing a cowboy hat, but firing a person for wearing their religious or cultural headgear (such as a Sikh wearing a turban or a Jewish man wearing a Yarmulke) would be prohibited. I may be able to fire somebody for cheering for the Flames, but being a fan of a given sport popular in your country of origin (like soccer for someone from Brazil, or cricket in India, or badminton in China) may attract discrimination protection. I may be able to fire somebody for eating pineapple on pizza, but non-Canadian cultural dishes (think: curry) may be a different story.
But it goes beyond a duty not to fire for those reasons, and there are other substantive obligations. I can't make it harder, or impossible, for them to do their job because of those protected traits. That results in an affirmative duty to accommodate. If my employee is a single parent with young kids, I might be required to give more lead time on a scheduling change: If you've made arrangements for childcare based on a 9-5 day, and I want to change your hours to 8-4, then I probably need to give you a reasonable time to change those arrangements.
Modifying duties to account for disability, where it can be done reasonably, is a pretty standard requirement. Modifying dress codes to account for religious attire is another one.
Most prohibited grounds of discrimination align with s.15 of the Charter - and, in fact, Provinces cannot exclude s.15 grounds from their human rights statutes. (We know this because Alberta once tried to exclude sexual orientation.) But Provinces can and do include prohibited grounds that are not part of s.15 - in Alberta, the best example is 'source of income': It doesn't attract as much attention as it deserves, but it's probably intended to capture the same as Ontario's 'receipt of social assistance' ground, preventing people from being excluded from important parts of life because they're on social assistance.
It would be interesting to see if 'turning somebody away because of their job' turns out to be illegal. (It shouldn't be illegal to decline to serve a lawyer. But there seems to be an argument.)
Other Provinces include 'political belief' as a prohibited ground of discrimination. That gets muddy, quickly.
There are traits that can connect to prohibited grounds of discrimination, but don't necessarily. Vaccination status is not a protected ground, but it is rarely and theoretically possible that somebody's vaccination status might be a function of religion or disability. That doesn't mean you can't require vaccines; it just means that if you require vaccines, you might be required to make special accommodations for people of specified disabilities and religions. (Hint: If you're going to rant about how the COVID vaccine is 'experimental', that's not a religious objection.)
Simply, while the dictionary definition of 'discrimination' would typically refer to treating something or someone differently because they're different, that's not how we use it in this context. I'm perfectly entitled to discriminate against employees based on their performance. I'm perfectly entitled to discriminate against clients based on their ability to pay for my services. I'm perfectly entitled to discriminate against prospective employees based on whether they have specific educational backgrounds. Discrimination only becomes problematic if it's on the basis of a protected characteristic.
Social Contexts
This is more rarely an issue, because most human rights proceedings arise in the employment context, but it's an important one to know: Not every relationship triggers anti-discrimination obligations.
If I host a party for all my neighbours except for one couple, excluding them because they're Muslim, that may make me a terrible person, but it's not illegal, because that relationship isn't one that attracts the attention of the AHRA.
Protected social contexts include employment; provision of goods, services, accommodations, and facilities customarily available to the public; and membership in trade unions.
So, put a little too simply, this means that human rights law applies to your work life - discrimination protection against your employer, prospective employers, and unions - and to your interaction with commercial and public service providers - like stores, restaurants, schools, etc. (Really, it's a bit more complex than that, and there are exceptions and exclusions, but this is broadly the gist of it.)
Outside of those contexts? Not so much. A racial epithet gets shouted at you by another driver on a public street? That doesn't engage the AHRA. Your cousin's wedding invitation is adults only, making it tough for you to go because of your kids? Nope. Your blind date walks out because of your skin colour? Not that either. Your friends ditch you for certain events or activities because you're wheelchair-bound? Again, not a breach of the AHRA.
In one Ontario case, a corporate board of directors adopted a resolution that allowed them to eject directors for missing too many meetings, and a parent sitting on that board took the position that they had to accommodate her childcare obligations. (Subtext: The resolution was probably directed at her for having missed too many meetings.) The HRTO concluded that that relationship didn't engage human rights protection.
A BC case went to the Supreme Court of Canada when a partner in a law firm argued that mandatory retirement provisions discriminated against him based on age. Again, this relationship was found not to engage human rights protection. (In obiter, they noted that there might be other types of remedies available to a person in a contractual relationship based on mutual obligations of good faith, but not through the human rights framework. Notably, however, Ontario's Human Rights Code includes 'contract' as a separate social context - so presumably the outcome would have been different there.)
The more common grey areas deal with (a) independent contractors and (b) volunteers. And the answer is that...it depends. Relationships that look more like employment relationships may attract human rights protection. Relationships that look less like employment relationships may not.
So if I hire an 'independent contractor' to do legal research for my firm 40 hours per week, that's probably going to be protected against discrimination. If I hire a barber to cut my hair once every couple months, I'm not subject to the AHRA in doing so.
On the 'goods and services' side, the grey areas often turn on whether a service is 'customarily available to the public'. The fact that a service may only be available in the first place to a specific client group - initially identified based on grounds that do not offend human rights principles, like club membership, poverty, enrolment in a particular university program, etc. - doesn't mean that the service isn't available to the 'public' within the meaning of human rights legislation. The SCC once had to weigh that, and had a real problem with an analysis that excluded services from the application of the statute just because the service had other (non-prohibited) criteria for inclusion at the front end.
The effect of this is that whether a matter is a 'service customarily available to the public' is a qualitative analysis: There's no bright line at which an activity becomes a protected service, but on my read of the statute and case law, what we're really looking for is whether the activity in question resembles a business activity, or otherwise the activity of a public institution.
Conclusion
The point of this discussion is not to parse the morality of discrimination outside of what's covered in human rights legislation, but simply its legality: We can (and many of us would) morally condemn a person for excluding his Muslim neighbours from his backyard BBQ, but we've chosen not to cloak that condemnation with a legal penalty. With only a few exceptions, in Alberta, unless you're running some type of business or charitable venture, you don't need to worry about having a human rights complaint made against you. (The main exceptions being things like 'hiring a nanny' - having an employee who provides you with services not related to a business you're running.)
There are compelling reasons why s.15 grounds are what they are: To varying degrees, they're fundamental characteristics of a person's identity and/or immutable characteristics over which they have no control. I'm generally skeptical of expanding human rights protection beyond those, as I feel it diminishes the importance of those grounds. Ontario's Code protects against discrimination based on 'record of offences': So me getting denied a job because I once got a speeding ticket is equivalent to you getting denied a job because you're not white? That doesn't sound right.
Leonid Sirota recently argued, unironically, that a law school looking to recruit faculty with "social justice and critical perspectives" is morally equivalent to excluding the LGBTQ community - because hey, look, discriminating against people based on their political views is unlawful in some Provinces.
But the important takeaway here is that, when we talk about 'discrimination' being unlawful, we're implicitly loading the word 'discrimination' with a lot of content that goes beyond its dictionary definition - specifically that it meets the two thresholds of being (a) discrimination on the basis of a prohibited ground and (b) within a protected social context.
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This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
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