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Can You Be Fired for Your Political Beliefs?

From January 2014.

The Federal Tories are at it again.  Some obscure backbencher has proposed a Private Members’ Bill ‘with the full support of the Prime Minister’s Office’.  This is the modus operandi of the Harper government when it comes to passing controversial bills.   That and putting changes in giant omnibus bills.  This new Bill C-520 requires a list of specified public employees and contractors, and the catch all “any other positions added” by some future regulation,  to disclose if they hold or intend to hold a “politically partisan position”.  The Bill is attracting considerable criticism already.

This post isn’t really about Bill C-520, but about discrimination on political grounds.  One obvious concern related to that Bill is that an employee or contractor could lose their job or suffer some form of adverse impact once they’ve disclosed their affiliation.  Terminated for their political opinion, belief, or affiliation.  The Federal Public Service Employment Act provides some protection for Federal employees who engage in political activities, provided this does not impair their “ability to perform their job in a politically impartial manner.” That’s not enough for the Tories, apparently.  Other provincial statutes regulate political activity by government employees, such as the Ontario Public Service Act.

But what about private sector employees?  Can they be denied employment or fired for their political beliefs and activities?

The answer depends on whether you are unionized, and on the applicable human rights legislation (or possibly another statute) includes “political belief or opinion” as a prohibited ground of discrimination.  Unionized employees can’t be fired without an actual reason unrelated to the employer’s personal biases, because unions bargain ‘just cause’ provisions to protect workers.  So if you’re unionized, you almost certainly can’t be fired for your political opinions.

However, if you are not unionized, then you CAN be fired for your political reasons–or for any other stupid reason for that matter–unless either you have bargained a contract clause providing others (hardly any employees do so) or a statute prohibits the discrimination.  There is no common law protection against discrimination on the basis of political belief. It might surprise you to learn that a handful of provinces and the Federal jurisdiction do not prohibit discrimination on the basis of political belief.  Here’s a breakdown (see Chapter 27:  What are the Prohibited Grounds of Discrimination? in The Law of Work book for a discussion):

Human Rights Statutes Do Not Include Political Opinion or Belief as a Prohibited Ground of discrimination:

Federal (Canada), Ontario, Nunavet, Alberta, Saskatchewan

Human Rights Statutes Do Prohibit Discrimination on the Basis of Political Opinion or Belief:

Nova Scotia, New Brunswick, PEI, Newfoundland & Labrador, NWT, Yukon, B.C., Manitoba

On a number of occasions, people have tried to argue that political opinion is included within the ground  of ‘creed’, but that argument has not succeeded to date (unless there is a decision from outside Ontario that I have missed–if so, please let me know).  In Ontario, the Court of Appeal has left open the question whether a “a political perspective”, like communism, “made up of a recognizable cohesive belief system or structure” could fall within the scope of creed.  But ‘simple political opinion’ is not included within Creed and so discrimination on that ground is not prohibited by the Human Rights Code.  See discussion in Jazairi v. OHRC, a case involving a York University professor who argued his tenure was denied because of his political beliefs.

A lingering question is whether the ommission of political belief in human rights legislation violates Section 15 of the Charter of Rights and Freedoms, the equality rights section.  That issue came up, but was not decided directly in the Jazairi case.  Section 15 requires that governments to ensure equality before the law on both enumerated and analogous grounds.  There is an argument that “political opinion” should be read into human rights legislation that presently omit it on a similar basis that led to the reading in of “sexual orientation” in the case Vriend v. Alberta.

Questions for Discussion

Can you think of a reason why governments would have left out “political belief” from their human rights legislation?

Is there any justification for prohibiting discrimination based on ‘religious belief’ but not ‘political belief’?  

Does the absence of ‘political belief’ in human rights statutes mean that an employer could ask job applicants who they voted for in the last election, or which political party they support, and then deny employment based not their answer?  If so, do you think that is a sensible approach or not?


4 Responses to Can You Be Fired for Your Political Beliefs?

  1. Steven

    January 16, 2014 at 8:42 pm

    I think the Superior Court of Ontario has indicated that political beliefs might be included under the ground of creed when the Court, in the case, Al-Dandachi v. SNC-Lavalin Inc., 2012 ONSC 6534 (CanLII), said:

    [11] The Court of Appeal expressly left open the question whether or not some other system of political opinion could amount to a creed. As the Divisional Court noted in Jazairi, supra, (which involved an application for judicial review based on an evidentiary record) the record did not establish that the applicant’s religious and political commitments were sufficiently aligned as to constitute the creed. By contrast, in the present case, the facts in the amended statement of claim must be taken as provable for purposes of this Rule 21 motion. Having regard to the allegations made (as quoted above), I am unable to conclude that the views and opinions of the plaintiff could not amount to a creed.

    • Doorey

      January 16, 2014 at 10:59 pm

      Thanks Steven, ya, that case basically just follows Jazairi, and says it’s not plain and obvious that the person’s views could not fall within creed. That’s still a far cry from finding that they do, and in any event, those facts are pretty specific. The question then would be what is the line that divides “simply political belief” [which I assume means "I'm a Liberal supporter" and "I volunteer for the NDP"], which the courts have said are NOT included in creed, and “a system of political beliefs” which goes further and constitutes a unified systems of beliefs that qualifies as creed.

  2. Alex

    March 28, 2016 at 5:29 am

    check jamieson v victoria native friendship centre…BC Human Rights Tribunal

  3. Guillaume Savard

    March 19, 2018 at 8:49 pm

    You forgot to mention that the “Charte des droits et libertés de la personne” of Québec forbids political conviction discrimination. Generally speaking, Québec is far more reaching than any other province in its defence of human rights.

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