To establish discrimination under Ontario’s Human Rights Code, a claimant must show that: A person discriminates “directly” when the action itself is discriminatory and when the person acts on his or her own behalf. being assigned less desirable jobs or duties. Example: A woman in an office transitions from female to male and is exposed to derogatory comments during this process. It is a principle of human rights that persons should be judged on their individual attributes, skills and capabilities, rather than on stereotypes, prejudice or assumptions. Under the Code, you have the right to be free from discrimination in five parts of society – called social areas – based on one or more grounds. Because the Human Rights Code applies to all Canadians, it means that … Harassment on any of the Code grounds can amount to discrimination. Example: A Black employee is accused of sexually harassing his female co-worker. Every person has a right to be free from. This type of unintentional discrimination is called “constructive” or “adverse effect” discrimination. Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture, may lead us to think that discrimination based on a ground in the Code was a factor in how the person was treated. Example: A company rule says that all people on site must wear a hard hat. Short Title. Membership in vocational associations and trade unions, Human Rights at Work 2008 - Third Edition, II. The HRTO first offers parties the opportunity to settle the dispute through mediation. The manager raises the allegations with the president and in response to his requests for information, is told “let it go, if you know what is good for you.” The manager investigates and verifies the allegations, and prepares a memo outlining the evidence uncovered for the Board of Directors. It establishes equal rights and opportunities, freedom from discrimination, and advances Ontario’s human rights system, which is composed of three parts: The Human Rights Tribunal The … Systemic discrimination can overlap with other kinds of discrimination, such as harassment, and may arise from stereotypes and biases. This duty to accommodate may arise in the context of any of the grounds of the Code. The following types of treatment in employment may indicate subtle discrimination based on the Code: The following actions may also be hints that racial discrimination is happening: Discrimination may be found to occur even when there has been no overt or implied reference to a Code ground. She was exposed to harassment based on both race and sex because she was a young woman the employer could assert economic power and control over. providing equipment, services or devices so an employee can do the essential duties of his or her job (disability), implementing flex-time policies to help employees balance their work with care-giving obligations (family status), modifying uniforms or hours of work so they are compatible with employee’s religious observances (creed), making a room available during working hours for an employee with a small baby to express breast milk (sex – pregnancy & breastfeeding). Harassment often occurs when a person deviates from established gender norms. Example: A long-term employee is repeatedly asked by a restaurant’s manager to go on a diet because she does not fit in with more recent hires and the image the restaurant is trying to project. The Ontario Human Rights Code says that healthcare providers like doctors and nurses must not discriminate against patients. Example: A woman is one of four people granted job interviews, from a pool of several dozen people who sent in resumes by mail. These types of attitudes can be expressed as "isms" (ageism, sexism, racism, etc.) Refers to a group of people of common ancestry, distinguished from others by physical characteristics such as colour of skin, shape of eyes, hair texture or facial features. For example, a White male supervisor might not take issue with being referred to as “the Chief.” To an Aboriginal person, however, the term may be very insensitive. Religious needs can relate to dress, time for prayer and flexible hours or time off for special days. “Harassment because of sex” is prohibited in section 7(2) of the Code. This would be direct discrimination based on sex and family status. Unfortunately, the curriculum for getting a real estate license in Ontario does not include education about the Ontario Human Rights Code, which was created in 1962 to prohibit actions that discriminate against people because of any of the following: The employee is fired because he was found to have been visiting non-work related sites during business hours. She later learns that she did not get the position, but the company does not explain its decision. Membership in vocational associations and trade unions, Guide to your rights and responsibilities under the Human Rights Code, Solemnization of marriage by religious officials, Discrimination in employment under government contracts. Section 12 of the Code states that a person cannot be discriminated against or harassed because of his or her association, relationship or dealings with another person identified by a ground in the Code. Tribunals have recognized that these types of responses are understandable and do not defeat a claim of harassment. Grounds of discrimination: definitions and scope of protection, 4. Requesting job-related sensitive information, 7. Sometimes a rule or practice unintentionally singles out particular people and results in unequal treatment. Thus, this would be discriminatory. She thanks him and does not indicate any discomfort with this comment. Recent case law has indicated that sexual harassment may also be a form of discriminatory treatment under section 5(1). The woman feels that the interviewer assumed that she was a lesbian based on aspects of her gender presentation, such as her hairstyle and clothing. The computers of other employees are not monitored like this. Altogether, the evidence showed that there were irrelevant references to her race during interviews and/or discussions about transfer opportunities. Employers also may be liable in a human rights complaint if they knew of, or should have known of, harassment and could have taken steps to prevent or stop it. To assess these situations accurately, you will need to apply the subjective and objective elements of the test and be aware of the power dynamics that are happening. The Code requires that the terms and conditions of the workplace, or the functions of a job, be created with a range of abilities and people in mind. Pay, benefits, dress codes and other issues, 8. providing non-gendered washroom facilities for persons who are transsexual (gender identity). If the parties do not agree to mediation, or mediation does not resolve the application, the HRTO holds a hearing. Similarly, a finding of discrimination may be made when someone makes negative comments about a person advocating for human rights protections or equitable treatment. This may be discrimination based on age and gender, even though it is clear the interviewer liked the man on a personal basis, and the person actually hired may have been more qualified for the job. In this workplace culture, it would be “career suicide” to object or show any sort of disapproval of such comments. The grounds are: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences (in employment). When a person is singled out and treated differently because of a Code ground, even if the differential treatment does not include clear reference to the Code ground, there may still be a Code violation. The HRTO first offers parties the opportunity to settle the dispute through mediation. If you believe you have experienced discrimination or harassment, you can file an application with the HRTO. Unwelcome sexual advances or solicitation from someone who is in a position to grant or deny a benefit to the person is another form of violating a person’s right to equal treatment. Appendix D – Sample application for employment, Appendix E – Accommodation template for employers, not individually assessing the unique merits, capacities and circumstances of a person, instead, making stereotypical assumptions based on a person’s presumed traits. Many people being harassed try to cope by playing along or responding the same way in return. [9], Example: A Chinese woman works in a bakery where racial slurs and stereotypical language are common in the kitchen. If the employer took more severe action against the Black employee because this was his second time and because he was presumed to be more violent because of his race, this would still amount to discrimination. Subsection 7(3) of the Code also prohibits sexual solicitation: This type of discrimination generally arises from negative attitudes and biases relating to that ground. Research has shown that sexual harassment often involves misuse of power and dominance, usually escalates over time, and is commonly known to exist within workplaces where it occurs. The definition of racial profiling used by the Commission includes the following parts: While this form of discrimination most often arises in the context of services, claims of racial profiling may also arise in employment. And in most cases, there are overlaps between discrimination and other legitimate factors. Persons can file complaints alleging harassment because of gender identity under the ground of “sex.” Harassment may arise from stereotypes based on the intersection of more than one Code ground.[8]. These concepts are discussed further in Section IV-8 – “Meeting the accommodation needs of employees on the job.”. People who have care-giving responsibilities after work or who use mobility aids, such as wheelchairs, would likely not be able to attend these events. Although the employer has complied with the other Act, it has failed to take into account the obligations under the Code. [6] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union (B.C.G.S.E.U.) Age discrimination involves treating persons in an unequal fashion due to age in a way that is contrary to human rights law. Intent or motive to discriminate is not a necessary element for a finding of discrimination – it is sufficient if the conduct has a discriminatory effect. For more information about organizational responsibility, see Section III-4 – “Legal responsibility for human rights at work,” Section IV-12 – “Resolving human rights issues in the workplace,” and Section IV-12h) – “Dealing with formal human rights complaints and applications.”. In other cases, conduct or comment may not on their face be offensive, but the harasser should still reasonably know that they are unwelcome because of how the other person reacts. A finding of discrimination may be made where appropriate accommodation has not been provided or the process for dealing with the accommodation request was flawed, if the employer does not have evidence to prove undue hardship. Example: A White employee is refused a promotion because she has a close friendship with a Black employee. Discrimination based on a Code ground may be found even if there were other legitimate reasons for decision or treatment, as long as it was one of the factors. Employers have a responsibility to accommodate religious needs in the workplace. Example: A manager repeatedly comments on a female staff member’s appearance during an important business meeting. Example: An employee believes that he was given an unfair performance appraisal and passed over for skills upgrade training because he is older than other workers in his department. Discrimination is not defined in the Code but usually includes the following elements: not individually assessing the unique merits, capacities and circumstances of a person instead, making stereotypical assumptions based on a person’s presumed traits having the impact of excluding persons, denying benefits or imposing burdens. This ensures that each person is assessed according to his or her own personal abilities, instead of being judged against presumed group characteristics. One of the more complex forms of discrimination is systemic or institutional discrimination. Overrules all other Ontario legislation unless that legislation states that the Human Rights Code does not apply Provides civil remedies, not criminal penalties People found to have engaged in discrimination can be ordered to compensate an individual or make changes to the way they conduct their affairs. She later files a complaint. [1] The Code will also not apply if you feel you were treated differently in your job due to a personality conflict with your manager, because the treatment is not related to a ground such as your age, sex or race. The Human Rights Code or the Code is the law protecting all people in Ontario from discrimination and harassment in the areas of employment; housing; goods, services and facilities; contracts; and, membership in trade and vocational associations. This is because race was one factor, among other legitimate factors, that affected how he was treated. When asked to identify discrimination, many people think only of situations of open or “overt” harassment. Appendix B – Human rights in the workplace: which laws? In Ontario, there is no protection for applicants for employment against differential treatment based on a conviction, unless the conviction is for (i) a provincial offence or, (ii) in the event of a criminal offence, a pardon has been obtained. It is not usually a defence under the Code for an employer to say that it has complied with other legislation. Every person has a right to claim and enforce his or her rights under the Code, or start or take part in proceedings under the Code without reprisal or threat of reprisal. Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability. Example: A worker will only share important job-related information if he or she receives sexual favours from that co-worker. The Code prohibits harassment in the workplace because of sex by an employer, agent of the employer or by another employee. People are protected from reprisal when they file a formal human rights claim. Failing to consider many perspectives, or not planning to include all people, may result in barriers to access for persons identified by the Code. Discrimination exists when rules, standards or requirements that appear to be neutral have a discriminatory impact on people identified by the Code. Example: A client repeatedly makes sexual jokes about one of the female trainers at a gym. Landlords and other housing providers must ensure that they are not denying housing to individuals based on their sexual orientation. 868 (Grismer) at para. Meeting the accommodation needs of employees on the job, 9. Example: An employee’s computer is monitored because he was born in Egypt and is therefore suspected to be a security risk. If you think you have been discriminated against, you should make notes about what happened. Racial, ethnic, religious and regional groups are rarely mutually exclusive, and the degree of discrimination varies from place to place, and over time. Her ability to take part as an equal in the meeting is undermined, but she does not want to make a scene. In some cases, discrimination is subtle or covert. The young woman who interviews him finds him pleasantly similar to her favourite grandfather and tells him this as a compliment. To protect the other employees from violence, the employer bans him from the workplace until the situation is fully investigated. The program provides for disciplinary sanctions, up to and including termination, for each extra absence, regardless of the reason. Racial profiling is a form of stereotyping based on preconceived ideas about a person’s character. Interviewing and making hiring decisions, 6. 2012 - The Ontario Human Rights Code (the Code) is a law that provides for equal rights and opportunities and recognizes the dignity and worth of every person in Ontario. However, one serious incident may create a poisoned work environment – see the next section for more details. Prejudice is a strong dislike or negative feelings held by someone about another person or group. Black teachers who asked for equitable practices were told “not to expect things to change overnight.” Transfer and promotion decisions were influenced by considerations of race. The employee has experienced discrimination because of the intersection between “family status” and association with a person identified by the Code ground of “disability.”, See also Section III – “Grounds of discrimination.”. She is expected to wear revealing clothing to bring in more business. Instead, he copes by laughing it off and saying, “Yeah, that’s a good one.” If the comments ought to be known to be unwelcome, this would amount to harassment even though the employee has not objected. Twice the meetings take place at the professor’s home in a sexualized environment including wine, romantic music, intimate discussions of a personal nature, and compliments on the woman’s attractiveness. Bd. The term is also used to design social categories into which societies divide people according to such characteristics. “Indirect discrimination” is discrimination carried out through another person. Example: An employee compliments his female co-worker on her appearance one morning as they stand beside the elevator. patterns of behaviour, policies or practices, part of the social or administrative structures of an organization, position of relative disadvantage created for persons identified by theÂ, policies, practices and decision-making processes, was adopted for a purpose or goal that is rationally connected to the function being performed, was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal. The following situations would be viewed as reprisal contrary to the Code: Example: An employee believes that he was not promoted in his job because of his race. A person who has the authority to prevent or discourage harassment may be found responsible or "vicariously liable." Initial investigation suggests he may have forwarded sex jokes by e-mail that he received from another colleague. The following three considerations can be used to identify and address systemic discrimination: Use these three elements as a basis for actively monitoring for systemic discrimination and measures to address it. Example: A workplace adopts a rule of not hiring women who wish to start a family. Employees should be able to raise human rights issues and have them dealt with fairly. The Code makes it against the law to discriminate against someone or to harass them because of sex, including pregnancy and breastfeeding. (Meiorin), [1999] 3 S.C.R 3. Entrop v. Imperial Oil Ltd. (2000), 50 O.R. However, if comments linked to a Code ground are made, they can be further evidence that discrimination has been a factor in the way someone is treated. Employees who are female, single, gay or lesbian may not feel welcome at these events. This kind of discrimination is specifically prohibited under section 11 of the Code. The subjective views of a person who has harassed someone do not determine whether a finding of harassment will be made. In the past, this type of discrimination was viewed as a specific category called “constructive discrimination” or “adverse effect discrimination.” Now, the impact on an individual or group is no longer viewed as the only determining factor – the focus is equally on both the rule and its impact. Sometimes people respond by becoming angry, using strong language or becoming emotional. Since 2008, the Ontario Human Rights Tribunal (the tribunal) has had the power to order an employer to pay unlimited general damages to an employee for discriminating against the employee. Although not directly mentioned in section 5(2), harassment because of sexual orientation has been found to be a form of discrimination based on sexual orientation that is a violation of the Code. Courts have clearly said that it is not enough to design systems that are not inclusive and then accommodate individual needs. Ontario's Human Rights Code is a provincial law that gives everybody equal rights and opportunities without discrimination in specific social areas such as jobs, housing, services, facilities, and contracts or … Later, the man is told that he does not have the right qualifications, and that the person hired had “more energy” and could relate better to the mainly female clients. A workplace that allows a poisoned environment to develop or continue may be the subject of a human rights claim. The persons who followed the instructions to discriminate have also engaged in discrimination – they cannot claim to have just been following orders. The Ontario Human Rights Code says that everyone has the right to be treated equally and not be discriminated against: at work in housing in a union or professional group by a service provider, like a store employee, restaurant, or school Employers, landlords, union representatives, and service providers aren't allowed to discriminate for reasons that are against human rights laws. For example, a building manager who refuses to rent an apartment because he prefers to rent to someone of his own ethnic background is discriminating directly. is reasonably necessary to accomplish its purpose or goal, because it is not possible to accommodate the person without undue hardship. Insulting or degrading comments or actions in a workplace based on Code grounds may cause employees to feel that the workplace is hostile or unwelcoming. In the example above, a racialized or single woman with a disability would be at a triple disadvantage. If a human rights claim arose due to this one instance, it would not amount to sexual harassment or a poisoned environment. To establish discrimination under Ontario’s Human Rights Code, a claimant must show that: they have a characteristic protected by the Code (e.g. However, it has been addressed in most detail in Commission policies on disability, creed, age, sex (pregnancy and breastfeeding) and family status. Ontario's Human Rights Code, the first in Canada, was enacted in 1962. When people are stereotyped, all people in the group are given the same characteristics, regardless of their individual differences. The Code protects people from discrimination and harassment because of past, present and perceived disabilities. Even though the jokes or actions do not directly refer to the employee’s sexual orientation, it may be inferred that the treatment is based on sexual orientation. The next day he is fired. 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