Hoist a political placard at your risk — you can probably be fired for it
Surprise! Most discrimination in Canada is entirely legal
By Howard Levitt
In this era of social media and ubiquitous cellphone cameras, employers can easily learn about an employee’s political predilections and activities. Almost all of our activities can be easily ascertained. Employees are increasingly reprimanded — even discharged — for off-duty conduct, which may not be illegal but is embarrassing to the employer or with which the employer is uncomfortable.
So what if an employer scoured social media sites and fired every employee who spoke disparagingly of Donald Trump? Or of Kathleen Wynne? Or who supported abortion? Or carbon taxing? Or attended a particular political rally?
What if your employer insisted upon adherence to his or her personal political views — to the point of dismissal — and hired only employees who shared the same ideology? Or if employees with dissonant political views had no prospect of promotions or wage increases?
If I were to take a reader poll, I suspect that more than 90 per cent of you would assume it would be illegal, and that such an employer would be in jeopardy. In Ontario, Alberta, Saskatchewan and with respect to federally regulated employers, you would be wrong. Those employers are free to discriminate based upon political views and activity.
Although the conduct in all of my examples is discriminatory, most discrimination in Canada is entirely legal. It is only discrimination on the few delineated grounds in human rights legislation that is illegal, entitling employees to recourse.
Employers can avowedly hire only the good-looking — even when looks are irrelevant to the task. Or they could hire based on left-handedness. Or chess skills. Or based on virtually any relevant or irrelevant factor they wish.
Political beliefs are a prohibited ground of discrimination in the Human Rights Codes of the other provinces. Similarly, public sector employees are protected by the Charter from discrimination based on political beliefs and activity. Surprising to many, the Charter does not apply to private sector employees, only with governmental action.
This does not mean that an Ontario or Alberta employer can terminate employees with impunity for their political views. It would still be a wrongful dismissal entitling the employee to damages. But it would not give rise to reinstatement or additional damages under human rights legislation.
The line is not always clear. Expressing certain political opinions can be cause for discipline or dismissal in any province if those opinions attack, for example, women’s or gay rights or if they approvingly quote discriminatory language, as that could violate human rights legislation and create liability for any employer who did not intervene. For the same reason, you might want to terminate someone if they are politically or socially active as a neo-Nazi.
Most employers are far too timorous to fire employees for political views, even if it is legal. They are also too smart. It hardly need be said that an employer who fires people for their political views would have an extraordinarily limited talent pool. They also would encounter strife and calumny with existing and potential customers with different views. The reality is that employers generally wish to foster a diversity of opinion, political and otherwise, despite what the law might permit.
The intersection of politics and human rights must be carefully traversed — in all provinces.