Systemic Discrimination and Long-Term Human Rights Violations
Employees who have experienced discrimination at work can file an application with the Human Rights Tribunal of Ontario (“Tribunal”). The Ontario Human Rights Code provides that the application must be filed within one year of the discrimination unless there was a “series of incidents.” Where a series of incidents occurs, the application must be filed within one year of the last incident.
The Tribunal has previously held that to constitute a “series of incidents,” allegations of discrimination must have some connection or nexus. They must reasonably be viewed as a pattern of conduct with a common theme, similar parties and/or circumstances.
The issue of a series of discriminatory events often arises in systemic discrimination. Systemic discrimination is a pattern of behaviour, policies or practices that are part of the structures of an organization, which can create or perpetuate a disadvantage for a protected group. Where systemic discrimination occurs, often the patterns or events are seemingly separate and discreet, with long gaps between them, and may not appear to be related to a prohibited ground.
The Series of Events Applied to Systemic Discrimination
A recent decision of the Tribunal re-considered the issue of a “series of events.”
In that case, the Association of Ontario Midwives alleged that the Minister of Health and Long-Term Care had permitted, perpetuated, and condoned sex-based compensation for midwives dating back to 1993. In addressing what the appropriate period of compensation might be, the Tribunal considered whether the latest incident of systemic discrimination was part of a series of events dating back to 1993. The Tribunal ultimately concluded that the ongoing payment of compensation to midwives for services rendered constituted a “series of events.”
In its decision, the Tribunal found that a “series of events” need not be linear and continuous between all allegations. The phrase can mean that matters are “connected” by way of a single chronological thread, or as a combination of events, policies, practices and attitudes. Allegations of discrimination must be viewed comprehensively and collectively.
The Tribunal recognized that patterns of discrimination can persist over a long period of time. A gap of more than one year between incidents does not sever what are otherwise connected incidents. A claim of long-term systemic discrimination can be advanced, and will be considered timely, so long as it is brought within one year of the latest incident.
This decision will assist marginalized groups that seek compensation for long-term wrongs through the Human Rights Tribunal process.
If you have experienced discrimination at work and you want to speak with an employment lawyer, contact us at [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).
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