After 25 years, how well are Canadian laws preventing workplace discrimination based on sexual orientation?

For the past 25 years, Canadian workers have been protected from workplace discrimination by a sturdy network of federal and provincial laws. After a quarter century, is this paper protection translating to job security in real life? Generally, the answer seems to be yes – except, perhaps, during the hiring process.

Canadian workplace laws protecting 2SLGBTQIA+ employees originate within the Canadian Charter of Rights and Freedoms and flow through provincial human rights and labour legislation. Back in 1998, a landmark Supreme Court of Canada case helped unify provincial protection. Known as Vriend v. Alberta, it concerned the dismissal of a teacher because of their sexual orientation; the court’s decision included the requirement for provinces to explicitly protect the rights of individuals from discrimination on the grounds of sexual orientation.

From that time forward, human rights legislation across the country has enshrined these protections, which apply not only to workplace situations, but also to areas such as access to services and tenancy, and inform other regulations such as labour standards codes, explains Joe Oppenheim, a partner with litigation law firm Carbert Waite LLP in Calgary.

For the most part, these provisions are having their intended effect. “I can’t even think of the last time an employer expressly discriminated against someone from the LGB community,” he says.

Nonetheless, last October, Statistics Canada released a report titled Labour and economic characteristics of lesbian, gay and bisexual people in Canada.1The report found that “lesbian, gay and bisexual (LGB) individuals are more likely to earn lower incomes, experience discrimination on the job, and encounter barriers in finding and advancing in employment, relative to their heterosexual counterparts.”

This is reflected in salaries: “Among the employed population aged 25 to 64, heterosexual people had the highest beforetax median earnings ($55,000), compared with gay or lesbian ($50,100) and bisexual ($39,200) individuals.”

“Most employers are pretty good. There’s not a general bias against anyone on the basis of sexual orientation,” says Oppenheim. “But I can imagine, on the basis of [gender] identification, there is plenty. People who are harassed at work, bullied, made to feel less because of their gender expression – that I would imagine [still] happens.”

He offers the example of job interviews, where “they’re never told why they’re not given the job, but they’re not given the job.”

This supposition is backed by the Statistics Canada report, which says, “Discrimination in the hiring process may also have an effect on employment in particular sectors.” It makes reference to a report titled “The blue of the rainbow: queerness and hiring discrimination in bluecollar occupations” published in the Review of Social Economyby Maryam Dilmaghani and Margaret Robinson in January 2022. 2

Based on the results of 2,000 job applications sent by researchers under the names of four fictitious job candidates, “The straight cisgender male received the highest number of callbacks; almost twice as many as the queer male, who was the least favoured among the four candidates.”

Whether discrimination occurs during the hiring process or on the job, it is extremely difficult to prove.

“It’s a very difficult thing for an individual to actually amass evidence that demonstrates they were discriminated against unlawfully,” says Oppenheim. “Most employers, if they’re going to discriminate, are pretty adept at not creating evidence. They know what the law is; they know what the line is.”

In an initial meeting with someone seeking representation in a workplace discrimination case, he says, “The biggest proportion of that meeting would be my telling them how hard it is to amass evidence. The practical reality is that most people don’t have the means and the resources to prosecute that kind of complaint in the hope that the employer is ready to provide records [and] there will be a ‘smoking gun.’”

And although a human rights challenge can bring about important change, it’s unlikely to leave the employee feeling comfortable enough to remain in their position with the company.

However, there is hope in addressing a situation of discrimination before it goes to court. A problem that can be resolved within a working unit or through a Human Resources process may obtain the desired result while preserving the employee’s position and comfort at work.

-JOE OPPENHEIM

“When a complaint happens, a formal process kicks in, and they have an investigation. That’s how they avoid these things being elevated to human rights or Occupational Health and Safety [cases],” Oppenheim says. “There has clearly been a shift in the last few years, at least in Alberta, in the way bullying and harassment are being dealt with. People are generally safer than they used to be.”

Even allowing that some sectors are ahead of others, Oppenheim says, “My impression is that we’ve become a lot better. I’ve been practicing for 20 years, and I’ve got to say, we’ve come a long way.” ■

1 www150.statcan.gc.ca/n1/pub/89-28-0001/ 2022001/article/00003-eng.htm

2 www.tandfonline.com/doi/abs/10.1080/ 00346764.2022.2030491