Unmasking Discrimination

Your co-worker in the next cubicle over is sick. They’re coughing, sneezing, and constantly blowing their nose. You also know they happen to have been born in China and you notice that they have worn a mask to work.

Do you:

(A) Panic uncontrollably?

(B) Inform Human Resources?

(C)  Mind your own business?

If you answered anything other than (C), your reaction may be more harmful than the dreaded coronavirus. It’s also illegal.

Make no mistake – we’re in cold and flu season. Everywhere you turn, from the grocery aisle to the office lunchroom, people are coughing and sneezing in a chorus of misery. While many try to lessen the spread of their germs, others are clearly less mindful. Hockey may be the most popular Canadian winter activity but avoiding getting sick is high up there on the list.

For most people, common cold and flu viruses are not life threatening. Yet the current outbreak of novel coronavirus (2019-nCoV) that was first reported from Wuhan, China, has created a public health concern as it begins to spread worldwide.

With the SARS crisis lingering in the rear-view mirror, this coronavirus has led to serious, and potentially valid, concerns about individuals travelling to and from infected areas of China. The virus seems to be quite contagious, and any reported cases in North America thus far seem to have originated from travellers returning from China. This means that, until a better treatment plan is in place, travel to those cities where infection is widespread may be inadvisable.

It DOES NOT mean, under any circumstances, that any person of East Asian descent is by default a suspected carrier of coronavirus. Some people, regardless of their ethnicity, may choose to wear masks through the day in order to prevent transmission of the common cold or to avoid catching one. This is not evidence of any sort of public health risk.

Discrimination can wreak havoc in the workplace. It is also expressly prohibited under Ontario’s Human Rights Code (the “Code”). The Code requires equal treatment with respect to employment without discrimination on a wide variety of grounds, including place of origin, colour, ethnic origin, and citizenship. The Code also protects employees from workplace harassment, either from an employer or from a fellow employee or other agent of the employer, on these same grounds.

That means that an employee cannot be penalized, chastised, singled out, made suspect, or treated at all differently because of their ethnicity, whether they are ill or not. Doing so as an employer, or condoning such behaviour from employees, leaves employers open to an application to the Human Rights Tribunal of Ontario, and a potentially large monetary damages award for how the employee was treated.

If that sounds familiar, it may be because discrimination surrounding SARS was less than two decades ago. In 2003, the Ontario Human Rights Commissioner recognized that people were being discriminated against on unwarranted suspicion of the disease, and declared in a press release “It is intolerable to use the SARS virus as an excuse to stigmatize any group of people in our communities.”

However, employers can enact non-discriminatory policies that discourage anyone who may be highly contagious from coming to work in the first place. Whether through paid sick leave or discouraging doctors’ notes for short absences, employers can encourage a healthy workplace that also promotes diversity and respect.

If you are an employer looking to enact healthier workplace policies and avoid costly litigation, I am ready to help as an employment lawyer with almost 25 years’ experience.

I also regularly act as a mediator of workplace disputes involving allegations of discrimination under the Code.

If you are an employee who believes they have been discriminated against for coronavirus, or for any other reason, I can assist you.

To book an appointment for guidance or for more information, please contact my assistant.

This article is for educational purposes only and is not intended as legal or any other form of professional advice.