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?