Discriminatory Action

Protection from Discriminatory Action

An employer must not take any discriminatory action against their employees for any prohibited reasons.

What is Discriminatory Action?

A discriminatory action is any action, or threat of any action, by an employer that adversely affects an employee’s employment or opportunity for promotion, including:

• Termination or layoff;
• Suspension;
• Demotion or transfer;
• Reduction in pay;
• Change in the hours of work;
• Reprimand; and
• Coercion or intimidation.

Prohibited Reasons

An employer must not take any discriminatory action against an employee who:

• is absent from work due to illness or injury, or the illness or injury of dependent immediate family members in accordance with that protection;
• is pregnant or is temporarily disabled because of pregnancy;
• has applied for or taken an employment leave or is otherwise absent from the workplace as allowed by the legislation;
• has asked an employer for rights or benefits under employment standards;
• has filed an employment standards complaint or made an inquiry regarding their rights;
• has requested a modification of their duties or a reassignment to other duties because of a disability or a pregnancy;
• had their wages seized or attached; or
• has reported an offence to a lawful authority, or has been asked to testify with regards to an offence.

If an employee believes they have been discriminated against for a reason not listed above, there may be protection under other legislation. For example, there may be protection under The Saskatchewan Human Rights Code or another part of The Saskatchewan Employment Act, such as Occupational Health and Safety.

An employer who takes a discriminatory action against an employee may show that it was not related to one of the prohibited reasons. For example:

• the project that the employee was employed to work on is completed or no longer required and all comparable employees are laid off; and
• the employer can show other reasons for dismissal, such as performance or misconduct; or
• the employer can show that the employee voluntarily resigned.

However, the prohibited reason must not have had any part in the employer’s decision to take discriminatory action.

Even if an employer terminates an employee’s employment with notice or pay instead of notice, the employer may still be found to have terminated the employee for a prohibited reason. If so, the employer may be required to reinstate the employee and pay any unpaid wages the employee may have earned had they not been terminated.

Investigating Discriminatory Action Complaints

A formal complaint must be filed to investigate unlawful discriminatory action. If a formal complaint is filed, Employment Standards will need to answer the following questions: 

1. Did the employer take a discriminatory action against the employee?
2. Do any of the relevant prohibited reasons apply to the employee?
3. Was there a link between the discriminatory action and the prohibited reason? That is, did the prohibited reason play any role in the discriminatory action?
4. Did the employer take a discriminatory action for any good and sufficient other reason?

If the investigation confirms that an employee was subjected to discriminatory action because of a prohibited reason, the employer will be issued a notice of decision. As a remedy, the employer could be ordered:

• to stop the discriminatory action;
• to reinstate the employee;
• to pay the employee lost wages that they would have earned if the discriminatory action had not occurred; and/or
• to remove any reprimands or other references to the matter from the employee’s employment record.

Appeals

Both employees and employers have the right to appeal a notice of decision (and Wage Assessment if the employer is ordered to provide back pay) to an independent adjudicator. See Wage Assessments and Appeals for more information.