About the Act

. all individuals should have an equal opportunity to make for themselves the lives that they want and to have their needs accommodated, consistent with their duties and obligations as members of society.

The Act protects against discriminatory practices. These practices are based on one or more of the prohibited grounds of discrimination.

Prohibited grounds of discrimination
(see sections 3 and 25 of the Act)

• Race
• National or ethnic origin
• Colour
• Religion
• Age
• Sex (includes pregnancy or childbirth)
• Sexual orientation
• Gender identity or expression
• Marital status
• Family status
• Genetic characteristics (includes refusal of a request to undergo a genetic test or to disclose, or authorize the disclosure of, the results of a genetic test)
• Disability (includes mental or physical disability, disfigurement and dependence on alcohol or a drug)
• Conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered

Discriminatory practices

The Act protects against the following discriminatory practices if they are based on one or more of the prohibited grounds of discrimination:

• Denying or treating someone in an unfavourable way when offering goods, services, facilities or accommodation (section 5 of the Act).
• Denying or treating someone in an unfavourable way when offering occupancy or accommodation in commercial or residential premises (section 6 of the Act).
• Refusing to employ or continue to employ someone (section 7(a) of the Act).
• Treating someone in an unfavourable way in the workplace (section 7(b) of the Act).
• Using a job application form that expresses or implies any limitation, specification or preference (section 8(a) of the Act).
• Publishing job advertisements or making inquiries in connection with employment that express or imply any limitation, specification or preference (section 8(b) of the Act).
• Excluding, expelling or suspending a member of an employee organization (for example, a trade union) or unfavourably affecting their status or employment opportunities (section 9 of the Act).
• Making policies or practices, or entering into an agreement, that deprives people of employment opportunities (section 10 of the Act).
• Paying men and women differently when they are doing work of the same value in the same establishment (section 11 of the Act).
• Publishing or displaying in public any notice, sign, symbol or emblem that expresses, implies or incites discrimination (section 12 of the Act).
• Harassing someone, including sexual harassment, in connection with employment or when offering goods, services, facilities or accommodation (section 14 of the Act).
• Retaliating against a person who has filed a complaint (section 14.1 of the Act).

Exceptions and defences

Section 15 of the Act provides exceptions to discriminatory practices. For example, it is not a discriminatory practice if:

• an employer’s actions are based on a bona fide (good faith) occupational requirement (section 15(1)(a) of the Act);
• employment is refused because an individual has not reached the minimum age, or has reached the maximum age, that applies to that employment by law (section 15(1)(b) of the Act); or,
• employees are granted special leave or benefits to assist them with pregnancy or childbirth or to assist them in the care of their children (section 15(1)(f) of the Act).
• there is a bona fide (good faith) justification for the denial or different treatment of someone when offering goods, services, facilities or accommodation (section 15(1)(g) of the Act);

Bona fide (good faith) means that an action, rule or standard is made without the intention to deceive or to discriminate on purpose.

Under section 15(2) of the Act, for a bona fide (good faith) occupational requirement or a bona fide (good faith) justification, the respondent must establish that the accommodation of the needs of an individual would cause undue hardship on the respondent.

This means that, at a hearing, a respondent who wants to use a bona fide defence will have to give evidence that shows one of the following points:

1. That the rule or standard in question is connected rationally to the performance of the job or function;
2. That it was adopted in the honest, sincere belief that it is necessary for the performance of the job or function; and,
3. That accommodating the needs of the complainant would cause the respondent undue hardship. In order to prove undue hardship, the respondent may present evidence demonstrating the health, safety and cost considerations that such accommodation would impose on the respondent. The Tribunal will decide whether undue hardship has been proven or not.

Please note that the bona fide justification criterion continues to be reviewed and explained in the judgments of other courts and the decisions of the Tribunal. The above description is only an introduction to the topic and should not be taken as a complete or definitive statement of the law. In all proceedings, reference should be made to court judgments and Tribunal decisions where bona fide defences are discussed.

Remedies

After the hearing, the Tribunal will decide whether there has been discrimination. The Tribunal can dismiss the complaint or find that there has been discrimination. If the Tribunal finds there has been discrimination, it can order remedies towards the respondent to resolve the discrimination. According to section 53 of the Act, the order can include any of the following terms:

• To stop the discriminatory practice and take steps to prevent the practice from happening in the future (section 53(2)(a) of the Act);
• To make available to the complainant the rights, opportunities or privileges that were denied (section 53(2)(b) of the Act);
• To pay the complainant for any lost wages because of the discrimination (section 53(2)(c) of the Act);
• To pay the complainant for the extra costs of getting alternative goods, services, facilities or accommodation because of the discrimination (section 53(2)(d) of the Act);
• To pay the complainant up to $20,000 for any pain and suffering experienced because of the discrimination (section 53(2)(e) of the Act);
• To pay the complainant up to $20,000 if the discrimination was wilful or reckless (section 53(3) of the Act); and,
• To award interest on an order to pay financial compensation (section 53(4) of the Act).