For Employers and Employees
I am an employer:
- seeking to accommodate an employee. What medical information may I request?
- looking for a sample workplace anti-harassment policy.
- responding to a complaint of discrimination.
- seeking to book a human rights training session for my employees
- looking to implement a mandatory COID-19 vaccination policy for the workplace.
I am an employee:
- requesting accommodation. What medical information should I provide to my employer?
- experiencing discrimination or harassment (sexual or otherwise) in the workplace.
- looking to file a complaint against my employer.
- with questions about workplace harassment..
- whose employer has implemented a mandatory COVID-19 vaccination policy at my workplace.
I am an employer or employee:
Employee and Employer Rights & Responsibilities
If you are an employee, you have a right to a workplace that keeps your dignity and is free of discrimination or harassment. You should be able to talk with your employer about your needs and the policies that are available to accommodate those needs. You should be assessed on an individual basis and not because you belong to a particular group.
If you are an employer, you have the right to set clear definitions of job requirements and to hire the most qualified person for the job and manage your employees.
Employees: You have a responsibility to an employer to go to work, be respectful to all staff, and to do the job that you were hired to do, with any necessary accommodations agreed to by you and your employer.
Employers: You have a responsibility to make sure that your work environment is free of discrimination and harassment. You should allow employees to speak openly with you and ensure that your employees are aware of your workplace policies and procedures.
Creating and applying policies and procedures that are compliant with legislation covering employment (Occupational Heath and Safety Act, PEI Human Rights Act, Employment Standards Act) is also your responsibility.
Employers must recruit and hire based on a person's qualifications. Questions that show a preference based on prohibited grounds may open the employer to a human rights complaint.
As an employer, you should consider carefully what information you need. In order for an interview or hiring to be free from discrimination, you should avoid questions related to protected grounds.
In most cases you should not ask for a photo of an applicant as it may raise suspicions about whether protected grounds such as age or color were a considered in hiring.
These are questions that can be asked:
- Is the person of legal age to perform the work? Serving alcohol at a restaurant or having a driver's license would be an example where a certain age is required.
- Is the person legally entitled to work in Canada?
Employees are not required to answer direct or implied questions related to protected grounds. You should prove that you meet the qualifications for the job that you want. Once hired on the basis of your qualifications, you are encouraged to let your employee know of any medical condition or other protected grounds that would need accommodation by your employer.
You do not need to tell your employer about any disability you may have unless you need to ask for special considerations.
Questions about having a criminal record should only be asked once the person has been conditionally offered the job. If a person does have a criminal record, you have to consider whether the conviction is related to the job. For example, a person with a driving conviction may be refused employment as truck driver but not as a chef. (This should be judged on an individual basis since time passed, steps to rehabilitation, and extenuating circumstances may be relevant.)
A duty to accommodate to point of undue hardship is found in the Human Rights Act. This means that it is sometimes necessary to treat someone differently, so that person can be treated equally, with dignity, and to prevent or reduce discrimination.
If you are an employer you cannot discriminate between employees by paying one employee less for what is largely the same work. If the work needs the same level of education, skill, experience, effort, responsibility, and is performed under similar working conditions, then you must pay the same rate of pay regardless of ages, sex or any other prohibited ground of discrimination.
- An employee who has been employed with you longer or has more experience may receive higher pay (seniority system).
- An employee who has been rewarded with a pay raise for their work (merit system).
- An employee whose wages are based on a measure of their performance, or the quantity and quality of production (quantity or quality system).
Testing employees is controversial. Random testing for alcohol and drugs is not acceptable, even for those in a safety-sensitive position. Exceptions to testing are rare, but do exist.
As an employer, you are required accommodate a dependence on alcohol or drugs up to the point that it doesn't cause undue hardship to you or the workplace. This may look like flexible shifts to allow the employee to participate in a recovery program, or placing the employee in a less safety-sensitive position.
NOTE: Recreational use of drugs or alcohol is not protected. The Human Rights Act protects those who have a dependency of drugs and alcohol, which is considered a disability.
Harassment is any unwanted behaviour, comment, gesture or contact that is known, or ought to reasonably be known, to offend or humiliate. It is behaviour - either direct or indirect - that makes the targeted person feel uncomfortable. The behaviour may have to be repetitive and persistent to amount to harassment, however, if the behaviour is serious, one incident may be sufficient.
Harassment can take on many forms including verbal aggression, personal attacks, or any inappropriate behaviour, comment, display, action, gesture, intimidating or humiliating behaviours.
Harassment can relate to any ground under the Act.
Employers, you must provide a safe workplace environment based on mutual respect and free from harassment. There is a requirement under the Occupational Health and Safety Act to have a policy and procedure for reporting, investing and resolving incidents of workplace harassment; in other words, a workplace harassment policy. You must have a copy of the policy readily available and see that all employees are trained in and follow the workplace harassment policy.
Employees, you have a responsibility to follow the guidelines and procedures of the Workplace Harassment Policy. This may include speaking up when harassment occurs or when it is safe to do so; maintaining confidentiality; and, if required, cooperating in an investigation. If you are experiencing or observing workplace harassment, keeping a written record of who was involved and when behaviours occurred can be helpful.
NOTE: Harassment can happen on a scale that can range from minor comments up to major actions that include coercion, abuse or assault. It is important to remember that it is the effect of the behaviour on the person experiencing the harassment that matters most and not the intent of the alleged harasser.
Links to resources for creating a policy and procedure, and information related to sexual harassment in the workplace can be found in the menu links above.