VIH Info Droits

Discrimination exists when a person is set apart or excluded because of personal characteristics. In Quebec, there are three (3) laws that protect against personal discrimination: The Charter of Human Rights and Freedoms (the “Quebec Charter”), the Canadian Charter of Rights and Freedoms, and the Canadian Human Rights Act. Wether they apply or not to a specific case will depend on its nature and the parties involved.

Unlike the Quebec Charter, the Canadian Charter of Rights and Freedoms applies exclusively to government action (federal and provincial) and cannot be invoked in a purely private dispute.

Meanwhile, the Canadian Human Rights Act only applies in disputes involving federally regulated employers and service providers (ex: banks, airlines, federal agencies, phone companies, interprovincial transportation companies such as buses or trains, First Nations governments). These cases are brought before the Canadian Human Rights Commission (CHRC).

The Quebec Charter will apply to any case where a person has been discriminated against in Quebec, wether it involves another person, private corporation or public entity. Section 10 of the Quebec Charter lists the prohibited grounds of discrimination:

Section 10 
” Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.”

In the context of HIV/AIDS, discrimination is based on the criteria of “handicap” set forth in section 10 of the Quebec Charter. In the workplace, discrimination could happen at any time, and is as likely to come from the employer as from a colleague.

1.1 Pre-employment Discrimination
Discrimination is prohibited throughout the hiring process. In the context of HIV/AIDS, this prohibition against discrimination applies to all health-related questions that might be asked of a candidate during the interview process, or on a medical questionnaire. In this regard, the employer is only allowed to ask questions about the candidate’s health if it has direct bearing on the job requirements. This is what is known as “bona fide occupational requirements.” This approach is based on the fact that an employer has the right to know if a person will be capable of carrying out work-related tasks.

Be aware that so far, no employer has been able to successfully demonstrate that being HIV negative is a bona fide occupational requirement. As a result, even asking a candidate whether they are HIV positive constitutes a discriminatory practice that could lead to sanctions. For more information, read “Disclosure in the workplace.”

1.2 Workplace Discrimination
Discrimination, whether direct or indirect, is prohibited on the job.

Direct discrimination is when an employee is treated differently because they are HIV positive (excluded from an activity – prohibited from entering a certain space – rejected or excluded). In addition, according to the Charter a person’s HIV status cannot serve as grounds for sanction.

Indirect discrimination is when a person is negatively affected by company policies as a result of their HIV status. For example, if the company offers a restricted number of breaks or sick days, if the pace of the job is too fast, or if the equipment is inadequate. These restrictive rules could prevent an HIV positive person from being able to complete some or even all of their job-related duties. It could also result in the person having to negotiate each absence, quit their job, or lose their job. Yet, every employee with a handicap has the right to obtain a reasonable accommodation at work, whether that entails adjusting their work hours, their days off, or adapting their physical work environment. Employers have a duty to put in place the reasonable adaptive measures that could accommodate the employee who requests them. Refusing to implement reasonable adaptive measures could be considered discriminatory.

Workplace discrimination can also come from an employer or from a colleague. 

1.3 Discrimination and Dismissal
A person’s HIV status cannot be grounds for dismissal. Indeed, salaried employees are protected by the Charter, which dictates that an employer cannot dismiss an employee for discriminatory reasons.

It is not always easy to tell when a person has been dismissed for discriminatory reasons. It is often covered up, with the employer using another pretext to terminate the person. If you think you can prove that you have been dismissed based solely due to your HIV status, you may have grounds for sanctions.

As a salaried employee, depending on the situation, you may be able to take action through various human rights organizations. Depending on the circumstances, people who have been victims of discrimination can sometimes obtain compensation for the damage suffered.

Be aware that if you have been a victim of discrimination and are unionized, you should speak to your union, as they are responsible for ensuring that your rights are respected.

If you are not unionized, here’s what you can do:

Filing a complaint with the Commission des droits de la personne et des droits de la jeunesse

If an employee thinks they have been the victim of discrimination on the grounds of their HIV status, they can file a complaint with the Commission des droits de la personne et de la jeunesse, if the employer is subject to provincial regulations.

There is no minimum amount of time a person must have been employed with the company before they can file a complaint. The person will be required to prove before the Commission that they were excluded or that a distinction was made by their employer as a result of their HIV positive status.

The period to file a complaint is 24 months (two years) after the discrimination takes place. A complaint can be filed with the Commission des droits de la personne et de la jeunesse by phone, fax, or by mail.

Filing a complaint with the Canadian Human Rights Commission

An employee who believes they have been the victim of discrimination due to their HIV positive status can file a complaint with the Canadian Human Rights Commission if their employer is subject to federal regulations. Any person working for a business or organization that is federally regulated (ex: banks, airlines) or receiving a service from such a business or organization may file a complaint. The person will need to prove that they were excluded or that a distinction was made by their employer as a result of their HIV positive status. There is no minimum amount of time a person must have been employed with the company before they can file a complaint.

Victims have 12 months (one year) from the time the discriminatory action takes place to file the complaint. You should also be aware that the Canadian Human Rights Commission has a specific policy for HIV/AIDS-based discrimination. A complaint can be filed with the Canadian Human Rights Commission by phone, by fax, or by mail.

An employee can also be the victim of discriminatory harassment in the workplace. To be considered harassment, several criteria must be met: vexatious conduct in the form of repeated conduct, verbal comments, actions or gestures that are hostile or unwanted, that affect the employee’s dignity or psychological or physical integrity, and that make the work environment harmful.

Harassment constitutes a practice that is prohibited both by the Charter, which protects all individuals against harassment on the grounds of disability, and by the Act Respecting Labour Standards, which provides recourse for salaried victims of psychological harassment.

As an example, when a new employee fills out an insurance form, they may be required to give their HIV status. This information is confidential, and the insurer does not have the right to tell the employer. However, once the person’s medications begin to be covered by the insurance company, the high cost may trigger an increase in insurance premiums for both the employer and employees of the company. This phenomenon can sometimes trigger a “war against the one who costs more,” leading to harassment by employers and/or colleagues to try to exclude the employee from the group insurance plan, or even to force them to quit. This type of underhanded action is prohibited, and can be sanctioned.

As a salaried employee, you can take action through a number of different human rights organizations. But be careful, as a complaint for an incident of harassment can only be filed once. This means you cannot bring the incident before multiple institutional bodies. So inform yourself before you act! Depending on the situation, people who have been the victims of discrimination could be eligible to receive compensation for the damage suffered.

Be aware that if you have been a victim of discrimination and are unionized, you should speak to your union, as they are responsible for ensuring that your rights are respected.

If you are not unionized, here’s what you can do:

Filing a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”)

An employee who believes they have been the victim of psychological harassment by their employer or a colleague can file a complaint with the CNESST. The employee has 90 days following the last incident to file the complaint. A psychological harassment complaint can be filed online or by phone. The process for filing a complaint is outlined on the CNESST’s website. The CNESST explains the criteria for psychological harassment and provides examples.

Filing a complaint with the Commission des droits de la personne et des droits de la jeunesse or the Canadian Human Rights Commission

These complaints follow the same conditions as for a discrimination complaint, described above.

When the psychological harassment occurs in a federal institution, the Canadian Labour Code stipulates that employees may file a complaint with the Canadian Human Rights Commission. The complaint must be filed within 12 months of the incident.