The Quebec Charter of Human Rights and Freedoms (Quebec Charter) provides the right not to be discriminated against on the grounds of sex. In the employment context, this protection has a wide scope that extends notably, but without limitation, to hiring, to the conditions of employment and to dismissal.
The Supreme Court of Canada (SCC) defines sex discrimination as :
“(…) practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics.” (Janzen v. Platy Enterprises Ltd.,  1 SCR 1252).
In order to prove sex discrimination, it is not necessary to establish that a job-related decision was made solely based on gender : as long as it constituted one of the grounds justifying the decision, discrimination will be established.
The claimant will have to prove prima facie evidence of discrimination. To do so, on a balance of probabilities, he will have to prove:
(1) a distinction, exclusion or preference;
(2) based on a prohibited ground; and
(3) that has the effect of nullifying or impairing full and equal recognition and exercise of his human rights and freedoms.
Policies involving gender requirements
As a result, an organization that requires a specific gender to perform particular work will have to demonstrate that being either a male or a female respectively is required for the employment, as this exception is provided by section 20 of the Quebec Charter.
To illustrate this requisite condition, the Human Rights Tribunal ruled in three cases in which policies involving gender requirements were at the heart of the decision. The employers were hospitals and residential senior care centers. In these cases, the policies constituted an advantage for men and the employers justified the policies based on physical strength, on the patients’ security and on the respect of the patients’ fundamental rights who, in majority, preferred intimate care to be given by a person of the same gender.
The Human Rights Tribunal decided that the policies were discriminatory and could not be justified under section 20 of the Quebec Charter (Dufour v. Centre hospitalier St-Joseph-de La Malbaie,  rJD 825, Commission des droits de la personne v. Centre d’accueil Villa Plaisance,  RJQ 511, Commission des droits de la personne et des droits de la jeunesse v. Hôpital général juif Sir Mortimer B. Davis, 2007 QCTDP 29). The demonstration of the necessity to have work performed by a specific gender is difficult to establish and dictates for the employer to have thoroughly studied other options before taking that direction.
Remedies for employees being victims of discrimination
Under Quebec laws, remedies are available for employees who believe that they are discriminated against on the basis of sex. Among them, the employee can file a formal complaint with the Human and Youth Rights Commission, which will conduct an investigation. The Commission may then recommend any corrective measures it deems appropriate and, if the employer fails to comply with them, can apply to the Human Rights Tribunal on behalf of the complainant to seek appropriate measures. Unionized employees can rely on the grievance procedure set forth in the collective bargaining agreement.
The Pay Equity Act
Furthermore, it is to be noted that the Pay Equity Act aims to redress the salary gap due to systemic gender discrimination faced by persons who occupy positions in predominantly female job classes. Employers governed by provincial legislation should be aware of their obligations under this Act.