Discrimination In Ontario: Human Rights Law And Employer Obligations

HRA855 The Legal Environment

The Ontario Human Rights Code

One of the major concern in the field of human rights today is discrimination. Discrimination is recognised as an intentional act of exclusion as well as an unintentional or hidden acts. The Ontario Human Rights Commission is dedicated for eliminating the discrimination from the society by providing the residents of Ontario with effective leadership and quality services, to effectively enforce the Ontario Human Rights Code, and to ensure and promote human rights (Ohrc.On.Ca, 2018).

The issue of discrimination is emerging in the society not only in the field of work but also in the general life. Discrimination may take place even in such situation where any harm was not intended. Discrimination may result from the tendency to create the society, though everyone has the same power as a person. Failure to consider some perceptions and not inclusion of all people may result in a barrier for access, which though unintended, may be discrimination.

The law

The Ontario Human Rights Code requires that an employer maintain a workplace which is free from discrimination. Discrimination may be constructive or systematic. Section 11 of the Ontario Human Rights Code states that constructive discrimination is the requirement, factor or qualification, which is not referred to as a discrimination on a prohibited ground but the same results in the restriction, preference or exclusion of a particular person or group of person who are recognised by a ground of discrimination which is prohibited unless the ground is exempted. Systemic discrimination is recognised as one of the complex forms of discrimination.

It refers to those policies or practices which seem to be neutral from their surface and still have discriminatory impacts on the people on the basis of one or more grounds of the code. There is a three part test to determine a discriminatory rule which was found in the Meiorin decision. The test requires the employer to demonstrate the existence of a rational connection within the purpose of introducing the standard and the requirement of that job. The employer should reasonably show that the standard was set up in a good faith and honest belief and it was mandatory for the performance required for that job role.

The test also requires that the employer should establish that the set standard was extremely necessary to achieve the legitimate work purpose. The employer cannot establish a standard for workplace on the basis of a perceived norm and then make an exception for the individuals who fails to satisfy the standard.

Section 1 of the Code provides that every person has the right to receive equal treatment in respect of goods, services and other facilities without any discrimination of race, colour, sex, religion, age, marital or family status or origin. Section 10 of the OHRC recognises HIV and AIDS as a disability and discrimination should not be made in the workplace on such basis. The code under Section 12 provides that discrimination should not be made on the basis of association. Human right is infringed when a person is discriminated on the basis of an association or relationship with a person identified by certain prohibited ground of discrimination.

Constructive and Systemic Discrimination

Section 9 of the Ontario Human Rights Code provides that any right protected under this Code shall not be, directly or indirectly, infringed by any person. In the case of Harriott v. National Money Mart, 2010 HRTO 35, a Muslim employee faced discrimination and called by various name in his workplace after the incident of 9/11. The Code provides that no such discrimination should be made on the basis of religion.

Legal duties or obligations of employers

It is required that the employers should create and maintain a workplace that is free from any kind of discrimination. They are expected to provide or create and environment in the workplace where the human rights are protected and respected and employees are provided with equal opportunities. One of the major duty of the employers are the duty to accommodate. Employers should accept a request for accommodation, investigate solutions, maintain the confidentiality and should provide with explanation when a request would cause an undue hardship. In the case of Hydro-Quebec v Sydicat des emoployees de techniques professionnelles et de bu reau d’Hydro-Quebec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, it was defined by the .

Court that undue hardship does not refer to impossibility. The other obligations of the employers are to obtain an expert opinion in case if it is required. They should investigate the alternative approaches and limit the requests for information to those reasonably related to the nature of the restriction or limitation. It is the obligation of the employer to bear the expenses of acquiring the required medical information. However, discrimination in workplace is allowed in special service organisations and bona fide occupational qualification (Ghumman et al., 2013). The Code further provides that discrimination is allowed in employing a person in home medical and personal care. The duty of accommodation is not imposed in such cases upon the employers.

Conclusion

The potential employer liability shall be minimised by adopting some practices in compliance with Ontario Human Rights Code. To ensure a workplace free from any discrimination, there should be timely inspection of the incidents of discrimination. The employees and other people involved in the workplace should be able to identify and understand discrimination. A pre-determined and well-designed internal policies would help to determine and resolve a concern in a simple way. A transparent and structured process should be maintain to resolve any complaint for discrimination. The company should ensure that all of its activities are in compliance with the Ontario Human Rights Code and the same should be applied while investigating allegations.

Current law in Ontario applying to discrimination in the workplace

            The law in Ontario provides that individuals have the right to receive equal treatment in their workplace (Ontario.Ca, 2018). They should be provided with a workplace that is free from discrimination. The Ontario Human Rights Code prohibits discrimination in the employment within its jurisdiction. No person shall be treated unfairly within the workplace under the protected grounds such as, race, origin, sex, citizenship, age or status (Settlement.Org, 2018). The Code recognises the worth and dignity of every person in Ontario. Discrimination also occurs when an employer withholds the benefits of a person while such benefit is available to the others

Obligation of the employers

To provide a workplace free from any discrimination, the employers should adopt a strong anti-discriminatory practices and policies. The employers should become aware with all the applicable anti-discriminatory laws (Vickers, 2016). They should possess the understanding that they should follow the various antidiscrimination laws at the federal level as well as at the state or local levels. They should create and develop an effective anti-discriminatory policy which must be followed by the employers, employees and other persons in the organisation.

The organization should make it clear to the employees that certain specific types of behaviour will not be entertained or tolerated in the organisation (Okechukwu et al., 2014). The policy should be made in clear and concise language so that it is easily understood by the employees. The obligation of the employer in this relation are:

• To create a policy to strictly prohibit the discrimination within the workplace.
• To make the employees aware of the existence of the policy.
• To apply the policy beyond the workplace where the employee is acting on behalf of the employer.
• To encourage the employees to report discriminatory conducts with the help of appropriate channel.
• To ensure the employees that they shall get the whistle-blower protection and make any complaint without any kind of fear or threat from the outside.
• To investigate a complaint of discrimination thoroughly without any biasness and document it.
• To appoint an investigator if required, to investigate the complaint.
• To take required disciplinary action in case a complaint is received.
• To analyse the business decision in case of any unintentional discrimination.

The policy should be put into practice in the organisation to effective eradicate the issue of discrimination from the workplace. The policy should be revised from time to time on the basis of the received complaint. Further, appropriate programs should be developed or initiated to identify and combat with the issue. Employer is in the best and main position to make a workplace free from discrimination. Therefore, they must fulfil their obligations which they owe towards the organisation. With the help and collaboration of the employers and employees and their compliance to the non-discriminatory policy in the workplace, the intention to create a discrimination free workplace can be actually achieved.

References

British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU)(Supreme Court of Canada) (1999) (a.k.a. Meiorin)

Ghumman, Sonia, et al. “Religious discrimination in the workplace: A review and examination of current and future trends.” Journal of Business and Psychology 28.4 (2013): 439-454.

Harriott v. National Money Mart, 2010 HRTO 35

Hydro-Quebec v Sydicat des emoployees de techniques professionnelles et de bu reau d’Hydro-Quebec, section locale 2000 (SCFP-FTQ), 2008 SCC 43

Ohrc.On.Ca, 2018, https://www.ohrc.on.ca/en/discrimination-based-disability-and-duty-accommodate-information-employers. Accessed 20 Nov 2018.

Okechukwu, Cassandra A., et al. “Discrimination, harassment, abuse, and bullying in the workplace: Contribution of workplace injustice to occupational health disparities.” American journal of industrial medicine 57.5 (2014): 573-586.

Ontario Human Rights Code

Ontario.Ca, 2018, https://www.ontario.ca/page/understand-law-workplace-violence-and-harassment. Accessed 20 Nov 2018.

Settlement.Org, 2018, https://settlement.org/ontario/employment/my-rights-at-work/basic-working-conditions/what-is-discrimination-at-work-what-can-i-do-if-i-am-being-discriminated-against-at-work/. Accessed 20 Nov 2018.

Vickers, Lucy. Religious freedom, religious discrimination and the workplace. Bloomsbury Publishing, 2016.