Indirect Discrimination in the Workplace

Indirect discrimination is a more subtle form of discrimination that may not be as obvious as direct discrimination. This form makes identifying discrimination a bit more complicated.

As an employer, you have a responsibility to ensure you prevent or remedy all forms of discrimination in your workplace.

In this guide, we will go over indirect discrimination in the workplace and indirect discrimination examples.

Defining Discrimination

Discrimination is commonly defined as treating someone unfairly (e.g. imposing a burden on them) based on a protected ground.

Discrimination may also include an individual’s negative attitudes, stereotypes, or bias about a person(s) that leads to negative or unfair treatment.

Employees are protected against discrimination by applicable human rights legislation. Each province has established their own human rights legislation.

What is Indirect Discrimination?

Indirect discrimination is not defined in any legislation. However, indirect discrimination – also known as unintentional discrimination or adverse effect discrimination – occurs when an employee is treated the same as everyone else, but it has a negative effect on them.

What is the Difference Between Direct and Indirect Discrimination?

The key difference between direct and indirect discrimination is that direct discrimination is generally more obvious and easier to detect, while indirect discrimination is more subtle and often goes unnoticed.

In some cases, people who indirectly discriminate against others are not aware that they are discriminating; it is only felt by the person who is being adversely affected.

What is Indirect Discrimination in the Workplace?

Indirect discrimination in the workplace can take place during the hiring process, throughout the course of employment, or at termination. Most often, indirect discrimination occurs in the workplace through rules or policies that unintentionally single out employees based on a protected ground.

Treating employees equally may have indirect or adverse effects on employees who require accommodation based on a protected ground. Employers should always consider how a certain policy or practice may adversely impact employees before implementing them.

Examples of Indirect Discrimination in the Workplace

Below is a list of examples of indirect discrimination in the workplace.

Indirect Discrimination based on Gender Identity

An employer implementing a dress code policy that requires all males to wear pants and all females to wear dresses or skirts.

Such a dress code policy may indirectly discriminate against transgender employees who are biologically female but identify as male and are thus not comfortable with wearing a dress.

Indirect Discrimination based on Creed

An employer with a workplace policy requiring all employees to work at least one Saturday per month may be inadvertently discriminatory. An employer may think that requiring an employee to work at least one Saturday a month is fair to all employees. However, some employees may not be able to work Saturdays because of their religion.

Requiring an employee to work Saturday, despite their religious beliefs, may constitute discrimination under applicable human rights legislation.

Indirect Discrimination based on Race

An employment service agency not hiring individuals of a racial or ethnic background at the request of the employer. The employer is indirectly (through the employment agency) discriminating against applicants who do not fit their requirements.

Applicants would not be aware of this discriminating behaviour by an employer and so it often times go unnoticed.

Exception to Indirect Discrimination

In some circumstances, indirect discrimination may be lawful. This exception is referred to as a ‘‘bona fide occupational requirement”.

An employer may justify a discriminatory requirement if they can show that the accommodation would not be possible to the standard of undue hardship. Human rights legislation allows this exception if the employer can show that the job requirement:

1. Was adopted for a purpose or goal that is rationally connected to the function being performed.
2. Was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal.
3. Is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the individual without undue hardship.

For example, an employer prohibiting employees from wearing jewelry while operating heavy machinery.

This may indirectly discriminate against employees who wear jewelry as part of their religion, however, there is a health & safety reason for the prohibition of jewelry while operating heavy machines (e.g. loose jewelry could get caught in the machine and injure the employee).

How to Address Indirect Discrimination in the Workplace

The best way to deal with claims of indirect discrimination is to create a workplace culture where complaints can be made by employees without risk to their employment status.

In these situations, an employee can raise their concerns about indirect discrimination with their direct manager without consequences.Another method of addressing indirect discrimination is supporting employees with equal opportunity policies.

Removing indirect discrimination from your workplace can foster a positive company culture through diversity and inclusivity. By increasing diversity in your workplace, you can promote exciting new thinking through different cultural and life perspectives.

Here are some ways you can prevent discrimination in the workplace:

• Display a clear definition of what discrimination is in your policies and handbooks.
• Have zero-tolerance for all discriminatory behaviour.
• Make your reporting structure known to all staff members.
• Provide awareness training on equality in the workplace.
• Ensure that all employees are confident with raising discrimination concerns.
• Have clear procedures in place for investigating claims of discrimination.

Get Advice on Indirect Discrimination with BrightHR

As an employer, it is important to establish, maintain, and enforce policies to promote a healthy and inclusive workplace, free from discrimination and harassment.

If you fail to address or ignore situations of discrimination, you may be at risk of having a human rights claim filed against you, which could lead to you paying thousands of dollars in legal fees and payouts.

If you need assistance with drafting workplace violence and harassment policies and procedures, or even looking to update current ones, our BrightAdvice service allows you to receive quality advice on any employment issues you may have.

Contact us on 18882204924 or book a demo today.