Marital Status Discrimination

First published on Thursday, Feb 02, 2023

Last updated on Wednesday, Jun 19, 2024

As an employer, making your workplace welcoming and inclusive should be two of your main priorities. An inclusive workplace can lead to increased morale and improve workplace culture.

Whether an employee is getting married, divorced, or re-marrying, it is important that you do not discriminate against them because of it. You should be aware of the laws and implement policies to prevent discrimination based on marital status. Doing so can help you avoid legal claims against you.

In this guide, we’ll explain what marital discrimination is, examples of it in the workplace, and how to prevent it.

What is Marital Status Discrimination in the Workplace?

In human rights legislation, marital status is defined as being married, single, widowed, divorced, or separated. It also includes the status of living with a person in a conjugal relationship outside of marriage, including both same-sex and opposite sex relationships.

Thus, marital status discrimination refers to employees being treated differently because of their relationship, or lack thereof.

Examples of marital status discrimination include:

  • Denying certain employment benefits to newly single employees.
  • Refusing to hire someone because they are in a same-sex relationship.
  • Terminating an employee for recently being married.
  • Paying a married employee more than an employee in a conjugal relationship (common-law relationship) due to their relationship status.

The Law Regarding Marital Status Discrimination

Marital status discrimination in Canada is protected under human rights legislation.

Each province has their own established human rights legislation. For example, human rights protections for provincially regulated workplaces in Ontario are provided under the Ontario Human Rights Code. Other provinces include:

  • Human Rights Code of British Columbia.
  • Alberta Human Rights Act.
  • The Human Rights Code of Manitoba.
  • The Saskatchewan Human Rights Code.
  • New Brunswick Human Rights Act.
  • Nova Scotia Human Rights Act.
  • Newfoundland & Labrador Human Rights Act.

The Canadian Human Rights Act provides human rights protection from discrimination for federally regulated employees. Some examples of federally regulated workplaces are inter-provincial transportation (eg. trucking companies, railways), television, and broadcast workplaces.

It is important that employers are aware that marital status discrimination varies from province to province.

Is it Illegal to Ask Marital Status During the Hiring Process?

It is not illegal to ask marital status during the hiring process. However, it is illegal to determine an employee’s candidacy for the position based on their marital status.

Asking questions about a candidate’s marital status is irrelevant to the candidacy of an individual for the position. So, it is best to leave questions about that out of the hiring process and focus on the skills, education, and experience of the candidate.

Can I Fire an Employee for Getting a Divorce?

You cannot terminate an employee for getting a divorce. This would be considered discrimination on the basis of marital status.

However, if the divorce is impacting their work performance or the employee is increasingly absent from their shifts, the employee may be negatively impacting your business operations. You should follow company policy in regard to disciplinary or performance improvement actions and have proof to show the employee is underperforming (i.e. sales records).

Are there Any Exceptions to Discrimination based on Marital Status?

In some circumstances, employers may discriminate based on marital status if there is a bona fide occupational requirement. For example, it may be restricted for one spouse to supervise over the other spouse because of their close relationship.

How to Prevent Marital Status Discrimination

It is your responsibility as the employer to create and maintain a healthy and inclusive workplace, free from discrimination. To help prevent marital status discrimination in the workplace, employers should put in place the following strategies to address human rights issues.

Anti-Harassment and Anti-Discrimination Policies

Employers must put in place anti-discriminatory and anti-harassment policies. These should highlight in detail the employer’s commitment to a healthy, equal, and inclusive environment, which includes:

  • A list of prohibited grounds of discrimination in accordance with human rights legislation.
  • Definitions of key terms such as “harassment” and “discrimination.”
  • Descriptions/examples of unacceptable behaviour.
  • Processes of how internal complaints will be handled.
  • Disciplinary measures that will be applied if a complaint of harassment or discrimination is proven.
  • Remedies that will be available if the complaint of harassment or discrimination is proven.

Employers should promote such policies to all employees about human rights matters by:

  • Providing the policies to new employees during orientation.
  • Training management on the content of the policies.
  • Posting information on bulletin boards around the workplace.
  • Sending periodic emails about the policies.
  • Continuing education to promote an inclusive work environment.

Review Company Policies

You should take proactive steps to ensure that policies, programs, rules and requirements are not having an adverse impact on employees based on their marital status.

You should regularly review policies and take steps to remove barriers that could disadvantage employees in your workforce.

Education and Training

Education and training are essential components of any organization’s human rights strategy. Both management and staff should have a solid understanding of the requirements under human rights legislation to treat everyone equally and free from discrimination. You and management should actively work to removing to all barriers and stereotypes in the workplace.

Get Advice on Marital Status Discrimination with BrightHR

As an employer, it is your duty to prevent marital status discrimination in the workplace. You should familiarize yourself with the laws and best practices to ensure an inclusive work environment.

If you need assistance preventing marital status discrimination or implementing anti-discrimination polices, our BrightAdvice service allows you to receive quality advice on any employment issues you may have.

Contact us on 18882204924 or book a demo today.

Lucy Cobb

Employment Law Specialist

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