Michael Ford (post until Oct. 31/19)
Employment & Labour

The Ontario Human Rights Code – a primer

By Christopher Achkar

The Ontario Human Rights Code (the Code) is intricate legislation which, after being passed in 1962, has protected provincially-regulated employees from bullying, harassment, other employment law issues connected to discrimination and violations of the Code.

If an employer violates the employee’s rights as protected by s. 5 of the Code, which states that every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

This means, if an employer uses racial slurs against an employee, or treats the employee negatively because of their race, the employer may be found to have violated the employee’s human rights. Similarly, if an employer refuses to provide accommodation for an employee with a disability, the employer is said to have failed to accommodate and would be in contravention of the Code.

Promoting a non-discriminatory environment may involve granting an extra day off to an employee to observe a religious holiday or making sure not to terminate an employee based on racial or gender stereotypes.

As an example, a pregnant woman must be offered the same opportunity to obtain a job as a non-pregnant woman. The Code emphasizes that employees should not be treated adversely for any distinguishing characteristics they may possess under the enumerated grounds.

Unfortunately, some employers may still engage in discriminatory practices, in part, due to lack of training or poor implementation of policy amongst staff, but also for personal and ingrained biases.

Accommodation

Accommodation as a topic surfaces when we are discussing disabilities.

Employers must accommodate employees with disabilities and other needs to the point of undue hardship. The employers must prove that the accommodation would be excessive, and any accommodation would be unfair to the employer. This is hard to do as an employer, and special attention must be paid during attempts to accommodate an employee who requires alternate duties that work with their medical condition.

Failure to provide proper or adequate accommodation may land the employer in hot waters, worse, at the Human Rights Tribunal where they may be found liable to pay general damages and even lost wages.

Accommodation is not a one-size-fits-all exercise. Accommodation may include permitting an employee to work from home, or modifying their schedule to cover different days. If accommodation is needed due to a physical injury, an employee may be entitled to accommodation in the form of lighter duties.

Accommodation can exist in many different forms, and the burden remains on the employer is to accommodate the employee to the point of undue hardship.

Undue hardship

What constitutes “undue hardship” depends on the contexts and the facts of the case. A large employer with a huge payroll may have a greater duty to accommodate than a small business with fewer resources. An employer who is readily able to offer certain accommodation will have a greater duty to provide the required modification to permit the employee to continue earning a living.

Determining how far an employer must accommodate is a difficult task, and will vary based on the industry, size, budget, and other factors.

Important takeaway

While the Code provides significant protection, there are certain instances it is not equipped to cover. Any claim made under the Code must relate to an enumerated ground located in s. 5(1). As an example, verbal abuse by an employer may not amount to a violation of the Code if it does not refer to, or is not motivated by, the employee’s race, religion, gender, sexuality, and so on.

Your employer may bully, harass you, and treat you adversely but it may not be connected to the protected grounds under the Code.

In addition, the Code only offers protection to provincially regulated employees, as those federally regulated enjoy coverage under the Canadian Human Rights Act. This is significant for an employee in the banking industry, the military, and any other industry regulated by the Federal branch.

How we can help

The Code is an important piece of legislation which may be overwhelming to some. If you feel your rights under the Code are not understood, we are here to help.

Whether you are an employer or employee, the Human Rights Code and the Human Rights Act are two complex pieces of legislation that should be navigated with care.

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